Meibus v. Dodge, 38 Wis. 300

Meibus v. Dodge

38 Wis. 300 | Wis. | 1875

Lead Opinion

Cole, J.

The counsel for the defendant relies upon three exceptions, which were taken on the trial, to show error on the part of the court below in its rulings. And first, it is insisted that there was error in that portion of the charge in regard to contributory negligence by the child. Upon that question the court gave substantially this instruction: that if the jury should find from the testimony that the lad was meddling with the sleigh of the defendant where the dog was at the time, it would not be a defense, because the. negligence of the defendant’s act consisted in allowing the animal to run at large unmuzzled, knowing that the dog had been accustomed to bite other individuals, if that was a fact, and he did know it. And the jury were told that if they were satisfied that the little lad — hardly old enough to know whether it would be wrong to meddle with the sleigh —did meddle with it, and if the lad meddled with it by taking out a whip, or doing anything of that sort, it would be no defense to the action.

The counsel claims that if the boy was committing an act of trespass upon the defendant’s sleigh, which was being guarded by the dog, as by meddling with a whip lying in the sleigh, or was interfering with the property in any way, this would protect the defendant from liability, even though he knew the dog was accustomed to bite persons. For, he says, it was the duty of the child to keep away from the sleigh, and not expose himself to be bitten by a fierce dog guarding it.

We are quite unable to adopt this view as to the measure of liability which the law impo'es upon the defendant. The child *307was alone, and, in view of bis age and situation, could not reasonably be expected to exercise that degree of care and vigilance which an adult would, in the presence of such an animal. If he did meddle with the whip, “ through his childish instincts and thoughtlessness,” as some of the witnesses say he did, it was what might have been anticipated under the circumstances. There, is quite a conflict in the testimony, whether there was any' such whip in or about the sleigh; and also, as to whether the dog was in the sleigh at the time, or sitting on the ground by it, when he attacked the boy. The instruction, of cours'e, assumes that the jury might find there was such a whip in the sleigh where' the dog was at the time, and that the boy did meddle with it; and yet the ruling of the court is, that this did not excuse the defendant, and that he was responsible for the injury done by his dog, if he knew it was accustomed to bite persons. It seems to us that the ruling of the court was correct, and that it was great negligence in the defendant to leave his dog, which was a dangerous animal, in that place, where it was extremely probable he would do some harm. We think that when the owner has knowledge of the ferocious disposition of his dog —has notice that the animal has left the sleigh which he was guarding, while it was standing in a public street, and has attacked persons passing along the highway (as it appeared this dog had done at least on one occasion, but a few weeks before, in the village of Columbus, as the defendant knew or should have known), — then it is the duty of the owner to keep the dog under safe restraint at home; or, if he takes him abroad with him for the protection of his property, he must see to it that the animal is so muzzled or secured that he cannot bite and injure children and persons passing along the street, or resorting to the wagon or sleigh where the dog may be, for amusement and play. This obligation or duty the law imposes upon the owner of every dangerous animal; and many cases of the highest authority hold the owner to a stricter re*308sponsibility. We are not, however, called upon to go beyond the facts of this case. Here the dog was left unsecured and ■unmuzzled, in the sleigh, which was standing near the sidewalk in the village. It was where children naturally would be passing and playing. The defendant should have anticipated the danger when he left the dog there, and have taken some precautions to guard against it. It is no sufficient answer to say that the dog was left in that situation for the protection of the sleigh, and that if the child had exercised care and watchfulness, and kept at a distance from the sleigh, he would not have been injured. It is idle to claim that, the defendant had the right, for the protection of his property, to leave a fierce dog guarding it in a public street, unsecured. And surely this child did not forfeit all claims to protection because he attempted to pull a stick from the sleigh, and did not carefully keep away from the place where the dog was. A man is not permitted, for the protection of his property, under such circumstances, to use means endangering the life or safety of a human being. Children playing in the street are entitled to consideration, and certainly are entitled to protection from a ferocious dog left by the owner there unmuzzled. Nor can tbe owner of such a dog exempt himself from liability in case of an injury inflicted on a child, because it appears that the child did not act with the discretion and judgment of a person of mature years. Munn v. Reed, 4 Allen, 431-433. In the case of Brown v. Carpenter, 26 Vt., 638, C. J. Redeield uses the following language, in considering the sufficiency of a plea which put the defense for killing a dog upon the ground that the animal was hostis communis, a common enemy, which might be killed by any one if found at large. He says : “We think that a ferocious and overgrown dog, known to the owner or keeper to be accustomed to bite mankind, is to be regarded as at large, within tbe common import of those terms in a plea in bar, when be is so far free from restraint as to be liable to do mischief to man or beast; and this suck a dog is always liable to *309do when not physically restrained, in the language of the judge in the court below. His being in the presence of his beeper affords no safe assurance that his known propensities will not prevail over the restraints of authority. That is the case with men often, and always liable to be with ferocious animals, as is said by our judge. I think sufficient caution has not been used ; one who keeps a savage dog is bound to so secure it as to effectually prevent it doing mischief.” And, among other authorities, the learned judge cites, with approval, Smith v. Pelah, 2 Strange, 1264, where it was held that the master was liable for all damage done by a ferocious dog who had once bitten a man, even though it happened by such person treading on the dog’s toes. And many cases treat a savage dog as an outlaw and common nuisance, liable to be killed by any one. Brown v. Carpenter, supra; Blackman v. Simmons, 3 Carr. & P., 138; Sarch v. Blackburn, 4 id., 297; Hinckley v. Emerson, 4 Cow., 351; Loomis v. Terry, 17 Wend., 496; Putnam v. Payne, 13 Johns., 312. In Loomis v. Terry, where the owner was held liable for damages done by his dog' to the plaintiff’s son, who, at the time of the injury, was committing a trespass in hunting upon his grounds on Sunday, CowbN, J., makes these remarks: “ There can be no doubt that, as against a trespasser, a man may make any defensive erection, or keep any defensive animal which may be necessary to the protection of his grounds, provided he take due care to confine himself to necessity. But it has been held that in these and like cases, the defendant shall not be justified, even as against a trespasser, unless he give notice that the instrument of mischief is in the way.” p. 499. This same liability has been enforced against a. person keeping any other mischievous animal, with knowledge of its propensities, where it is held that he is bound to keep it secure at his peril. Blackman v. Simmons, supra; May v. Burdett, 9 Queen’s Bench R.. 101; Jackson v. Smithson, 15 M. & W., 563; Oakes v. Spaulding, 40 Vt., 347; Pickett v. Crook, 20 Wis., 358; Popplewell v. Pierce, 10 Cush., 509. May v. Burdett was an action for *310an injury received from a monkey, which the defendant knew to be accustomed to bite people. After verdict, it was objected, on the part of the defendant, that the declaration was bad for not alleging negligebce or some default of the defendant in not properly or securely keeping the animal. Lord DeNMAN, C. J., delivering the judgment, said : “ A great many cases and precedents were cited upon the argument; and the conclusion to be drawn from them appears to us to be, that the declaration is good upon the face of it; and that whoever keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous propensities.” In other words, the owner is held bound so to secure it as to keep it from doing an injury, at his 'peril. The law upon this subject is so fully expounded in the above cases, and in Card v. Case, 5 Man., Gran. & S., 622 (57 Eng. C. L.), that no further reference to authorities is deemed necessary. It will be seen that the law made it the duty of the defendant to use due and reasonable care and precaution in keeping his dog, knowing its savage disposition; and he had no right to leave him unsecured in a “public street where children were passing. And the fact that the child in this case was meddling with a whip in the sleigh where the dog was at the time, does not protect the owner from liability.

Another portion of the charge excepted to was the direction of the court in respect to exemplary damages. On this point the court instructed the jury that they might include in their verdict punitory or exemplary damages, providing they were satisfied from the evidence that the defendant had been guilty of gross and criminal negligence in allowing the dog to run at large without being muzzled — that is, had been guilty of such negligence as evinced a wanton disregard of the safety of others. *311This instruction, as a proposition of law, was fully warranted by the decision in Pickert v. Crook, supra. And that there was evidence to which such an instruction was fairly applicable, we think cannot be denied in view of what occurred at Columbus. The dog-on that occasion evinced a-most savage disposition, of which the defendant had notice. The counsel for the defendant argues that it was legitimate and proper for the owner, after a knowledge of that occurrence, to take the dog with him into a village to watch his sleigh and prevent theft. The law is otherwise settled.

If the case was one for exemplary damages in any aspect, there was no error in asking the witness as to the pecuniary circumstances of the defendant.

We think the judgment of the circuit court must be affirmed.

By the Court. — It is so ordered.

KyAN, C. J., took no part in the decision of this cause.

Rehearing

Upon a motion for a rehearing, the appellant’s counsel insisted that the question of plaintiff’s capacity, as bearing upon the defense set up, was properly one of fact for the jury, and was improperly taken from the jury by the trial court; and they cited to this point, in addition to cases mentioned in their former brief, Pa. R. R. Co. v. Lewis, Am. Law Reg. for November, 1875, p. 665, and distinguished the case of Loomis v. Terry, 17 Wend., 496, as one where the verdict covered every question of fact in the case. They also contended that if the question of punitory damages was properly allowed to go to the jury at all, then the evidence showing the conduct of plaintiff which provoked the attack upon him should have been allowed to go to the jury for the purpose of mitigating the punitory, damages (Moreley v. Dunbar, 24 Wis., 183); and that the jury were really forbidden to consider this evidence, by the instructions.

The motion for a rehearing was denied.