191 Iowa 1195 | Iowa | 1921
The petition contained all the averments of action essential under the common law. The answer was composed of a general denial, and the plea of an alibi fop the dog.
The questions presented for review involve, principally, alleged errors in the rulings of the court upon objections to certain questions propounded by counsel for defendant to a witness for plaintiff upon cross-examination, errors in several paragraphs of the court’s charge to the jury, and errors in the overruling of defendant’s motion for a new trial.
I. The court, in the sixth paragraph of its charge, instructed the jury that, under Section 2340 of the Code, “the owner [of a dog] shall be liable to the party injured for all damages done by his dog, except when the party is doing an unlawful act;” and that, if plaintiff had made out a case by the evidence, he would be entitled to recover such actual damages as it was shown he had sustained. The court further, and in Paragraph 7, instructed the jury that exemplary damages might be allowed if it found, by a preponderance of the evidence, that defendant’s dog was vicious, that such fact was known to him, and that he permitted the dog to run at large, without any attempt to restrain him.
Paragraph 7 of the charge was excepted to on the ground that, under the statute, plaintiff could recover only compensatory damages, and that the allowance of .exemplary damages was not permissible, even though the petition recited a good cause of action at common law.
It is further contended by appellant that the injuries received by plaintiff were due to his own voluntary act in taking-hold of the horse’s bridle and trying to stop the frightened team; and that, if he had not thus voluntarily put himself in the way of danger, he would not have been injured; and that, therefore, the injuries complained of were not the proximate result of any wrongful act on the part of defendant.
It is tacitly conceded, however, by counsel for appellant, in this connection, that a person who seeks to rescue another from imminent peril at the risk of his own life, or under circumstances likely to result in serious injury or damages to himself or his property, is not necessarily guilty of contributory negligence, or prevented from recovering damages frorh the negligent party; but they contend that this is true only when actionable negligence on the part of the defendant toward the person rescued, or toward the party making the rescue, after the attempt has been initiated, is shown. This is substantially the general rule, the reasons for which are obvious. Saylor v. Parsons, 122 Iowa 679; Liming v. Illinois Cent. R. Co., 81 Iowa 246. We said, in the case last cited, that:
‘ ‘ One who, acting with reasonable prudence, voluntarily exposes himself to danger for the purpose of protecting the person of another, may recover for the consequent injuries he receives, from the person whose wrong caused the injury to himself and the danger to the person he sought to aid. ’ ’
To the same effect, see Beckler v. Merringer, 131 Iowa 614; Tyler v. Barrick & Son, 178 Iowa 985, 989.
We perceive no just or valid legal reason for holding that one who negligently sets a dangerous instrumentality in opera
We held, in Cameron v. Bryan, 89 Iowa 214, that, where it was alleged in the petition and established by the evidence that the defendant “willfully, unlawfully, and maliciously” harbored a vicious dog, with full knowledge of his vicious propensities, exemplary damages might be recovered by one injured thereby. While it is alleged in plaintiff’s petition that the defendant “willfully and maliciously” harbored and kept a dan
III. It is further insisted by counsel for appellant that the verdict of the jury is not sustained by the evidence. No motion was made for a directed verdict, after both parties had rested in the court below.
It was alleged in plaintiff’s petition that the defendant willfully and maliciously harbored a vicious and dangerous dog; and the evidence tended to show that the dog in question was in the habit of running into the highway and barking, and chasing teams and automobiles; and one or two witnesses testified to having made complaint to the defendant of the dog’s behavior in this respect, either offering to kill the dog for defendant or advising him to do so. Another witness testified that the dog bit his horses, and his daughter, eleven years of age. The defendant sought to show that his dog was at home at the time the trouble occurred. But the plaintiff testified that the dog that frightened the team was defendant’s. Other corroborating testimony was offered. There was a fair dispute in the evidence upon all material points, and the issues were fairly submitted to the jury. It would serve no useful purpose to set out or review the evidence at length, and we refrain from doing so. Other alleged errors discussed by counsel are not likely to occur upon a retrial of this case, and we give no further consideration thereto.
For the error pointed out, the judgment of the court below must be, and is, — Reversed and remanded.