72 N.Y.S. 905 | N.Y. App. Div. | 1901
Lead Opinion
The action was brought to recover for the damages sustained by the plaintiff by reason of the bite of a dog owned by the defendant Wilson. There was no motion for a nonsuit at the end of the plaintiff’s case, but after the evidence was all in, the defendants moved for the direction of a verdict, which motion was granted as to both of the defendants. It seems that the defendant Wilson was in possession of certain premises in East Eleventh street, in the city of Hew York, and owned and maintained upon the premises a watch dog, usually kept chained in the daytime. Upon these premises there was a stable, and Wilson rented stalls in this stable and used the yard for the storage of trucks. He had entire charge of the premises, renting the stalls for horses and the yard for'trucks, and after deducting a percentage of the receipts, paid the balance
I think that the question as to Wilson’s liability for the injury inflicted upon the plaintiff was one for the jury. The plaintiff’s-father kept his horses and truck upon the premises and paid Wilson therefor. At the time in question he sent his driver to get this-team and truck, and as the driver did not speak English he sent the plaintiff, a boy about nine years of age, to act as interpreter. The hoy was thus lawfully upon the premises, and while waiting in the yard for the driver to bring the horses from the stable was-attacked by the dog and severely injured. It was said that the boy had been warned before of the character of the dog and was told not to come upon the premises, but the boy was upon the premises in connection with the lawful business carried on there, acting for his father who, under contract with Wilson, had the right to go-there, and the boy had no knowledge that at the time of the occurrence the dog was-unchained, and did nothing to provoke the dog. There is nothing to show that the plaintiff voluntarily assumed the risk of being bitten by this dog or that any act of his contributed to the injury. There was sufficient to justify the jury in finding-that Wilson had knowledge that this dog was a dangerous animal. As was said in Brice v. Bauer (108 N. Y. 432), “ the very purpose-for which the defendant kept him (the dog) charges him with, knowledge of his character, and he is, therefore, chargeable with, negligently keeping him, although it had not appeared that he had actually bitten another person before he bit the plaintiff; ” and the-court cited with approval what was said in Buckley v. Leonard (4 Den. 500) that aside from proof that the defendant had notice of the dog’s disposition, “ the fact that he usually in the daytime kept him confined, and in the night kept him in his store, is strong evidence that he was fully aware that the safety of his neighbors would be endangered by allowing him to be at large.” It would seem,.
A different question is presented as to the liability of the defendant Chisolm. The relation between Chisolm and Wilson is not very-clear from the plaintiff’s evidence. Wilson was called by the plaintiff and testified that prior to the year 1898 he was in possession of’ the premises under an arrangement that he had with one Cruikshank who was then its owner; that when he first went there lie went as a watchman at twenty dollars a month, and that continued until a malthouse, which was upon the premises, was torn down ; that after the malthouse was torn down there was no building upon the premises ; that Wilson then made an arrangement with Cruikshank by which he (Wilson) was to use the property for storage,. Wilson to receive thirty per cent of the proceeds ; that this arrangement continued until Chisolm bought the property, which seems to' have been about the 29th of July, 1898 ; that after Chisolm bought the property he saw Wilson and the arrangement that had theretofore existed was continued, Wilson remaining in possession of the property and renting it out for storage purposes and accounting to Chisolm for the amount that he collected, deducting thirty per cent for his services ; that sometime after Chisolm became the owner of’ the property he built a stable thereon and an arrangement was there made by which Wilson was to do his best to fill the stable and store trucks in the yard, keep an account of the receipts and take out his. commissions and pay Chisolm the difference, and that that was the arrangement upon which Wilson remained there ; that at the end of each month he rendered an account to Chisolm and paid him the amount due ; that Wilson managed the property entirely, made the bargains with the people, did the best he could, and searched for business, and Chisolm did nothing in regard to the business, except that at the end of each month he received his proportion of the amount realized by Wilson for the use of the premises. Wilson further testified that he owned the dog and kept him upon the premises for his own purposes. Chisolm was examined on the part of the defendants and testified that he leased the premises to Wilson who agreed to pay as rent therefor a percentage of the gross amount received for the use of the stable. It seems to me quite evident that, accepting either version of the relation that existed, Chisolm
The case of Marsh v. Hand (120 N. Y. 315) seems to be directly in point. That case was to recover damages for an injury caused by a buck sheep which made an attack on the plaintiff, and the court held that the evidence was sufficient to charge the owner of the sheep with liability for the damage sustained by the plaintiff. It appeared that the defendant Hand was the owner of the farm and certain stock; that he surrendered the entire control of the stock to one Cumber, who undertook to take care of it, and that Cumber as well as Hand had an interest in the stock, but the ram which did the injury complained of was not left upon the farm by the defendant Hand, or put there by him. It was purchased by Cumber after he went into occupancy, of which fact Hand had no notice.
It was contended that the trespass and injury was the result of the negligence of Cumber, and for his negligence Hand was liable; but it was held that that proposition could not be supported on the ground that he was their servant; that no such relation arose from the contract. The court say : “ Here Cumber, by the contract, undertook to occupy and work the farm and manage the stock left there, in his own way, with a view to results and without any contribution of the defendants Hand to the service, with the performance of which they had nothing to do. The practical effect of the
The plaintiff claims that the testimony of Wilson as to his relation with Chisolm was not entitled to credit, but Wilson was called as a witness by the plaintiff, and assuming that his testimony was not to be believed, we have no evidence as to Chisolm’s relation to the property, except his own, which was that he leased the property to Wilson. The fact that Wilson’s testimony could be discredited would not be evidence to justify a finding that Chisolm was the owner of, or maintained, this dog. To entitle the plaintiff to recover against Chisolm he had the burden of proving that Chisolm was responsible for the acts of the dog. Either with or without Wilson’s testimony there is not a particle of evidence that would justify a finding of Chisolm’s liability.
It follows that a direction of a verdict in favor of Chisolm was correct and should be affirmed; that the judgment for the defendant Wilson should be reversed, with costs to the plaintiff against Wilson to abide the event and the judgment in favor of Chisolm affirmed, with costs against the plaintiff.
Laughlin, J., concurred; Van Brunt, P. J., concurred as to defendant Chisolm, and dissented as to defendant Wilson ; Patterson and Hatch, JJ., dissented as to defendant Chisolm.
Dissenting Opinion
This action was brought to recover damages for personal injuries alleged to have been sustained by Andrew Lagnttuta, an infant nine years of age, from the bite of a vicious dog.
It is averred in the complaint as a cause of action that at the times therein mentioned the defendant Chisolm carried on, or
The defendant Chisolm by his answer alleges that he leased the-premises to Wilson ; denies the ownership and maintenance or harboring of the dog, knowledge of its vicious propensities and ajl the-material allegations showing liability on his part. The defendant-Wilson also denies all the material allegations of the complaint- tending to establish liability on his part, and both defendants aver that, the plaintiff’s injuries were caused by his own negligence or by the-negligence of third persons over whom the defendants had no control.
At the close of the evidence the court dismissed the complaint as-to both defendants, to which counsel for the plaintiff excepted, and asked to go to the jury upon various questions of fact, viz., as to the-viciousness of the dog; as to whether or not Wilson was in the-employ of Chisolm ; as to whether there was or was not a lease from Chisolm to Wilson; as to whether or not there was warning given to the plaintiff of the character of the dog, such as would defeat his-action ; on the question of contributory negligence, and on the question of damages. These motions were denied, to which ruling coun
It is clear beyond dispute that the question of Wilson’s liability ■for the injuries inflicted by the dog presented a question of fact for the jury. The evidence was abundant to show that Wilson was the owner of the dog; that he kept the dog upon the premises, and that the dog had, prior to the time when he bit the plaintiff, bitten one or more other persons. As to Wilson, therefore, there was every element in the case from which the jury would have been authorized to find that he was responsible for injuries inflicted by this dog, unless he was relieved therefrom by the misconduct of the person who received the injury. As to the defendant Chisolm the case is somewhat different. It was conceded that he was the owner of the premises, but the claim was made that he had leased them to Wilson, and that Wilson had sole charge of the premises as lessee, and that Chisolm was not connected therewith, and had no control, either over Wilson or the premises at the time when the dog was kept thereon and when he bit the plaintiff. If this were conclusively •established then it follows that Chisolm was relieved from liability for the act of the dog. The case comes, therefore, to rest in the main upon the question as to whether Wilson was the mere agent .and servant of Chisolm or whether he was the lessee having sole control of the premises. It appears that Chisolm purchased the premises, consisting of a stable, at a foreclosure sale. It is not •claimed that Chisolm ever executed any written lease of the premises to Wilson. The evidence upon the part of the plaintiff tended to establish that after the purchase Wilson took charge of the stable finder an arrangement with Chisolm by which he was to rent stable room to persons desiring such accommodation, collect the moneys therefor and pay the same over to Chisolm, less a certain percentage which he retained as his compensation. At first Wilson was authorized to retain thirty cents on the dollar as his commission, as he •expressed it, and subsequently Chisolm refused to allow that amount and reduced'it. to fifteen cents on the dollar. During the whole period Wilson collected the money and paid it over to Chisolm under this arrangement; and these were the terms _ under which
It is quite evident that Wilson had notice, at least the jury might so find, that the dog had bitten one or more persons prior to his biting the plaintiff', and he had caused to be put upon the premises a notice to beware of the dog.
If Wilson was Chisolm’s agent his knowledge became that of his principal, and with that relation established as the jury might find it under the evidence, every element would be present charging Chisolm with liability for the injury which the dog inflicted. I am of opinion, therefore, that the plaintiff made a case entitling him to go to the jury as to the liability of both defendants, and upon the questions upon which he requested to go to the jury.
The plaintiff was not chargeable with contributory negligence as matter of law. That also became a question for the jury. (Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362; Stone v. Dry Dock, etc., R. R. Co., 115 id. 104.) If the negligence of the parents could be imputed to the child, it was still a question of fact, under all the circumstances of the case, as the jury might well find that in committing the boy to the custody of the driver they were not negligent.
It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Patterson, J., concurred.
Dissenting Opinion
I dissent. I do not think that any case was made out against either defendant.
As to defendant Chisolm, judgment and order affirmed, with costs.
As to defendant Wilson, judgment and order reversed, new trial ordered, costs to appellant to abide event.
