The petition contained all the averments оf 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 рresented for review involve, principally, alleged errors in the rulings of the court upon objections to certain questions propounded by counsel for dеfendant 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 defеndant’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 allоwed 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 thе charge was excepted to on the ground that, under the statute, plaintiff could recover only compensatory damages, and that the allowancе of .exemplary damages was not permissible, even though the petition recited a good cause of action at common law.
It is further contended by аppellant 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 vоluntarily 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,
‘ ‘ One who, acting with reasonable prudence, voluntarily exposes himself to danger for the purpose of proteсting 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 tо the person he sought to aid. ’ ’
To the same effect, see Beckler v. Merringer,
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,
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 partiеs 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 tеnded 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 complаint 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 daughtеr, 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 tеam 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 submittеd 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.