69 N.J.L. 458 | N.J. | 1903
This was an action to recover for injuries resulting to the plaintiff in error (the plaintiff below) from the bite of1 a dog, owned by the defendant in error, which attacked her while she was walking on the public street. At the close of the testimony the trial judge directed a verdict for the defendant, and the plaintiff seeks to review the judgment entered upon, that verdict.
■ It is the settled law that the owner of a dog will not be held responsible for injuries resulting to another person from its bite unless it be shown that the dog had previously bitten someone else, or was vicious, to the knowledge .of the owner. Smith v. Donohue, 20 Vroom 548, and cases cited.
In the present ease, although the dog had been kept on the defendant’s premises for several years, 'and must have been well known in the neighborhood, the only-evidence tending to show viciousness on its part prior to the time when the plaintiff was bitten by it, was that, on two or three occasions, it had “flown at” a policeman, whose duty required him to daily pass by the premises of the defendant, and that, on another occasion, it had “sprung at” a boy who was passing by along the street, and made two little holes or spots upon his leg. It is admitted that the policeman was never bitten, and it is left in uncertainty whether the marks- on the boy’s leg were made by the teeth of the dog or by its claws. Assuming that this evidence, meagre as it is, was sufficient to make the character of the dog a jury question, it was necessary, as has already been stated, in order to fi-x upon the defendant liability for the plaintiff’s injury, to show that he had knowledge of his dog’s vicious propensity. . But the case utterly fails in this regard. So far as the occurrence in which the boy figured is concerned, the defendant heard from his wife that she had been told by the boy’s mother that the dog had jumped upon her son, but had merely scratched his leg. The experience of the policeman he never heard of at all.
But even if the evidence submitted would support the conclusion that the dog had a propensity to bite, and-that what the defendant heard about its attack on-the boy charged him
The right of a man to keep a vicious dog for the protection of his home and property is conceded in the ease of Roehers v. Remhoff, 26 Vroom 475. He is, of course, bound to exercise a degree of care, commensurate with the danger to others which will follow the dog’s escape from his control, to so secure it that it will not injure anyone who does not unlawfully provoke or intermeddle with it. Worthen v. Love, 60 Vt. 285. But if the owner does use such care, and the dog nevertheless •escapes and indicts injury, he is not liable.
In the case now under consideration the undisputed evidence makes it clear that the defendant fully discharged the duty of using due care to prevent the escape of his dog from bis premises, and that the plaintiff’s injury was not due to any neglect in that regard upon his part. She was bitten in the -early morning, between half-past six and seven o’clock. On the preceding evening the defendant shut the dog in his ■carpenter shop (which adjoined his dwelling) and locked 'him in. During the night the dog gnawed away the woodwork from around the lock of the door to such an extent that the lock became detached, thus permitting the door to 'open and the dog to escape. That a reasonably prudent man would •not have anticipated any such occurrence must be admitted.
The judgment under review should be affirmed.