Keenan v. Hayden

| Wis. | Jan 15, 1876

LyoN, J.

It is conceded that tbe minor son of tbe plaintiff was severely bitten by tbe defendant’s dog, and that, if tbe _ plaintiff is entitled to recover anything, tbe damages were assessed at a reasonable sum. Tbe principal question to be determined is, whether there was sufficient testimony tending to show that tbe defendant knew tbe vicious propensities of tbe dog, to justify tbe court in submitting the question of scienter to tbe jury. Or tbe question is, rather, whether there was any testimony in tbe case tending to prove such knowledge by tbe defendant; for if there was any testimony of that character, tbe question was properly left to tbe jury.

Tbe testimony tends to prove that tbe defendant bad owned tbe dog. two years before she bit tbe plaintiff’s son; that she was kept tied some portions of that time; that tbe defendant sometimes took her on tbe street tied with a rope, by means of which be kept her under bis control; that before she bit tbe plaintiff’s son, she bit several persons, mainly children, at different times, and at various other times violently attacked many other persons; that she frequently attacked persons passing along tbe street in tbe vicinity .of tbe defendant’s residence; and that she was a cross dog, and was known and shunned as such by the defendant’s neighbors. One witness testified as follows: “There was not a child in the neighborhood who was not afraid of this dog. She had bitten most of them, and all the neighbors complained about the dog.” About three months before the plaintiff’s son was bitten, the dog had bitten a boy named Clark; and the mother of the latter testified that she informed the defendant of the fact, but she could not remember whether it was before or after plaintiff’s son was bitten.

Much of the foregoing testimony was controverted on the trial, yet the jury may have believed it; and if the same is true, the presumption is very 'strong that the defendant, and his agents who had charge of. the dog when the defendant was absent, must have had some knowledge of the character and conduct of the dog. Ye think the testimony tended sufficiently in that direction to render the question of seienter a proper one for the determination of the jury, and hence, that the motion for a nonsuit was properly denied.

The defendant prayed three instructions to the jury, which the court refused to give. They were to the effect that the mere fact that the defendant confined his dog at times, unaccompanied by proof of other facts and circumstances tending to establish the seienter, would not, of itself; warrant the jury in finding such seienter, or that the dog was tied because she was vicious. The fact of confining the dog does not stand by itself, but is accompanied by proof of other facts tending to show that the defendant knew the character and conduct of his dog; and certainly it was not the duty of the court to instruct the jury what the consequences would have been had the fact of confining the dog been the only one proved having such tendency. The charge of the court to the jury is a full and fair statement of the law of the case, and no exception to it was taken.

This disposes of all the alleged errors, of sufficient importance to require notice, adversely to the appellant.

By the Court. — Judgment affirmed.