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 <div><div> <div href="/vid/888968685" data-vids="888968685" data-content-heading-label="Header"> <p><b><span>27 P. 17</span> </b></p> <p><span><b>1 Colo.App. 22</b></span></p> <p><b> <span>MELSHEIMER</span> </b><b> v. </b><b> <span>SULLIVAN</span>. </b></p> <p><span><b>Court of Appeals of Colorado</b></span></p> <p><span><b>June 23, 1891</b></span></p> </div> <p data-paragraph-id="92">
 <span data-paragraph-id="92" data-sentence-id="103">Appeal
 from <span>district court</span>, <span>Arapahoe county</span>.</span> </p> <div data-content-heading-label="Counsel"> <p data-paragraph-id="149">
 <span data-paragraph-id="149" data-sentence-id="160"><span>Browne
 &amp; Putnam</span>, for <span><span>appellant</span></span>.</span> </p> <p data-paragraph-id="193">
 <span data-paragraph-id="193" data-sentence-id="204"><span><span>W.B.
 Felker</span></span>, for <span><span>appellee</span></span>.</span> </p> </div> <div> <p data-paragraph-id="232">
 <span data-content-heading-label="Opinion (RICHMOND)"><span data-paragraph-id="232" data-sentence-id="243"><span><span><span>RICHMOND</span></span>,
 P.J.</span></span> </span></p> <p data-paragraph-id="259">
 <span data-paragraph-id="259" data-sentence-id="270"><span>Appellee</span>
 herein brought this action to recover for injuries received
 from being bitten and otherwise <span data-page_type="bracketed_cite" data-id="pagenumber_373" data-val="23" data-rep="Colo.App." data-vol="1" data-embedded="true"></span> injured by a
 dog kept by <span>the appellant</span>, and which, it is alleged,
 <span>appellant</span> knew was accustomed to attack and bite mankind.</span> <span data-paragraph-id="259" data-sentence-id="500"><span>Appellant</span> answered, specifically denying the allegations in
 the complaint, and as an additional defense claimed that the
 injury received was the result of <span>appellee</span>'s negligence.</span> <span data-paragraph-id="259" data-sentence-id="680">The record discloses the fact to be that <span>appellant</span> is the
 owner of a brewery, and in the alley adjoining the brewery,
 part of the premises belonging to him, <span>he</span> kept a dog chained
 in a kennel near the entrance to the cellar where <span>he</span> had
 stored his malt; that the length of the chain was between
 five and eight feet; that <span>appellee</span>, a policeman, was in
 pursuit of a suspicious character, and, believing that <span>he</span> had
 entered this alley, went into it hunting for the person, and
 that while so engaged <span>he</span>, without seeing the dog or the
 kennel, or having any knowledge of the fact that the dog was
 there, advanced near enough to the kennel to be bitten by the
 dog; that the alley, though private, was easy of access at
 one end, and frequented by employes of <span>appellant</span> and others.</span> <span data-paragraph-id="259" data-sentence-id="1464">The ownership of the dog and his ferocity were confessed at
 the trial, and are admitted in the argument here.</span> <span data-paragraph-id="259" data-sentence-id="1575">It is also
 shown that <span>appellee</span> received considerable medical attention
 for a period of 9 days, and that <span>he</span> was unable to do any work
 of any consequence for a period of 16 days.</span> <span data-paragraph-id="259" data-sentence-id="1755">The disposition
 of the dog to bite mankind was not only established by the
 admissions of <span>the appellant</span>, but also by evidence of other
 witnesses, and especially by his former master.</span> <span data-paragraph-id="259" data-sentence-id="1940"><span>The appellant</span>
 testified that <span>he</span> kept the dog chained in the same place at
 all times, never suffered him to go at large, and kept him
 for the purpose of protecting his premises from strangers and
 tramps;
 <span data-rep="P." data-id="pagenumber_2149" data-page_type="bracketed_cite" data-val="18" data-vol="27" data-page_gap="5" data-embedded="true"></span>
 that if a stranger should approach the kennel the dog would
 certainly bite him.</span> <span data-paragraph-id="259" data-sentence-id="2233">Trial by jury.</span> <span data-paragraph-id="259" data-sentence-id="2248">Verdict for <span>plaintiff</span> in
 the sum of $800.</span> <span data-paragraph-id="259" data-sentence-id="2291">On <span>motion for a new trial</span>, <span>the court</span>
 requested <span>plaintiff</span> to remit $300, which was done, and
 judgment on the verdict for $500 was entered.</span> <span data-paragraph-id="259" data-sentence-id="2431">To reverse this
 judgment this appeal is prosecuted.</span> </p> <p data-paragraph-id="2484">
 <span data-rep="Colo.App." data-id="pagenumber_2496" data-page_type="bracketed_cite" data-val="24" data-vol="1" data-page_gap="6" data-embedded="true"></span> <span data-paragraph-id="2484" data-sentence-id="2497">In the argument of <span>the case</span> <span>appellant</span> says that
 the true question involved is, <span>"May the owner of
 property keep on his own premises a vicious dog, when
 constantly confined on the premises, and kept from running at
 large, for the protection of his property?"</span></span> <span data-paragraph-id="2484" data-sentence-id="2758"><span>He</span> answers
 this in the affirmative, and displays much facetiousness,
 ability, and ingenuity in presenting his side of <span>the
 proposition</span>.</span> <span data-paragraph-id="2484" data-sentence-id="2896"><span>We</span> will accept the foregoing <span>proposition</span> in the
 following language: <span>"That one is not liable for the
 damages caused by his dog, though <span>he</span> knows <span>he</span> has vicious
 propensities, if <span>he</span> exercises proper care and diligence to
 secure him so that <span>he</span> will not injure any one who does not
 unlawfully provoke or intermeddle with him."</span></span> <span data-paragraph-id="2484" data-sentence-id="3222">But this
 principle is not applicable to the circumstances in this
 particular case.</span> <span data-paragraph-id="2484" data-sentence-id="3307"><span>The appellee</span> assumed that, in the pursuit of
 his duty, <span>he</span> had a right to enter this alley in search of the
 person whom <span>he</span> was seeking.</span> <span data-paragraph-id="2484" data-sentence-id="3444">True it is that <span>he</span> was there
 voluntarily, but <span>he</span> was there innocently; and, being there
 under those circumstances and receiving the injury which <span>he</span>
 did, <span>we</span> feel no hesitancy in saying that <span>he</span> was entitled to
 recover.</span> </p> <p data-paragraph-id="3665">
 <span data-paragraph-id="3665" data-sentence-id="3676">This
 question has received the attention of some of the ablest
 judges in this country and in England, and a careful review
 of <span>the cases</span> leads <span>us</span> to the conclusion that the gist of the
 action is in the keeping of the animal after knowledge of its
 mischievous disposition.</span> <span data-paragraph-id="3665" data-sentence-id="3952">In <span><a href="/vid/906457011" data-vids="906457011" data-reftype="reporter" data-prop-ids="sentence_3952"><span>Marble v. Ross</span>, <span>124 Mass. 44</span></a></span>,
 MORTON, J., lays down this rule: <span><span>"The law imposes a
 stringent responsibility upon a man who knowingly keeps a
 vicious and dangerous animal.</span> <span><span>He</span> is liable to any person who,
 without contributory negligence on his part, is injured by
 such animal, and <span>he</span> cannot exonerate himself by showing that
 <span>he</span> used care in keeping and restraining the animal.</span> <span><span>He</span> takes
 the risk of being able to keep him safely so that <span>he</span> shall
 not injure others.</span> <span>The owner's negligence is in keeping
 the animal knowing that it is dangerous."</span></span></span> <span data-paragraph-id="3665" data-sentence-id="4504">In <span><a data-refglobal="case:mullervmckesson,73ny195,201,29amstrep123" data-reftype="reporter" data-prop-ids="sentence_4504"><span>Muller v.
 McKesson</span>, <span>73 N.Y. 196</span></a></span>, the rule is announced that, <span>"in
 an action against the owner of a ferocious dog or other
 animal, for injuries inflicted by it, the gravamen of the
 action is the keeping <span data-page_type="bracketed_cite" data-id="pagenumber_4712" data-val="25" data-rep="Colo.App." data-vol="1" data-embedded="true"></span> of the animal with
 knowledge of its propensities; and, as to the latter, proof
 that the animal is of a savage and ferocious nature is
 equivalent to express notice."</span></span> <span data-paragraph-id="3665" data-sentence-id="4881"><span><span>"The owner is bound
 to keep the animal secure at his peril, and, if it does
 mischief, negligence is presumed.</span> <span>This presumption cannot be
 rebutted by proof of care on the part of the owner in keeping
 or restraining it, and <span>he</span> is absolutely liable, unless
 relieved by proof of some act or omission on the part of the
 person injured."</span></span></span> <span data-paragraph-id="3665" data-sentence-id="5219">In <span><a data-refglobal="case:partlowvhaggarty1871,35ind178" data-reftype="reporter" data-prop-ids="sentence_5219"><span>Partlow v. Haggarty</span>, <span>35 Ind. 178</span></a></span>, it
 was held that <span><span>"whoever keeps an animal accustomed to
 attack or bite mankind, with knowledge of its dangerous
 propensities, is prima facie liable to an action for damages
 at the suit of any person attacked or injured by the animal,
 without proof of any negligence or fault in the securing or
 taking care of it.</span> <span>The gist of the action is the keeping of
 the animal after knowledge of its mischievous
 disposition."</span></span></span> <span data-paragraph-id="3665" data-sentence-id="5678">In <span><a href="/vid/887674510" data-vids="887674510" data-reftype="reporter" data-prop-ids="sentence_5678"><span>Sherfey v. Bartley</span>, <span>4 Sneed, 58</span></a></span>, it is
 said: <span>"The <span>defendant</span> knew his dog was vicious, and
 disposed to attack and bite persons, and was bound to have so
 confined him as to prevent him from doing mischief."</span></span> <span data-paragraph-id="3665" data-sentence-id="5889"><span><a href="/vid/897034050" data-vids="897034050" data-reftype="reporter" data-prop-ids="sentence_5889"><span>Brooks v. Taylor</span>, <span>65 Mich. 208</span>, <span>31 N.W. 837</span></a></span>, was an action
 for injuries inflicted by a bull, and it was held that
 <span><span>"the negligence in such <span>a case</span> consists in keeping such
 an animal after notice of its dangerous habits; and whoever
 keeps an animal accustomed to attack and injure mankind is
 prima facie liable in an action on <span>the case</span> at the suit of
 any person injured, without any averment of negligence or
 default in securing and taking care of the animal.</span> <span>If in such
 <span>a case</span> it is shown, as a matter of defense, that <span>the
 plaintiff</span> willfully provoked the animal, or was grossly
 negligent in going near it, with knowledge of its vicious
 habits, <span>he</span> cannot recover."</span></span></span> <span data-paragraph-id="3665" data-sentence-id="6563">In <span><a data-refglobal="case:earlvvanalstine,8barb630,631nygenterm1850" data-reftype="reporter" data-prop-ids="sentence_6563"><span>Earl v. Van Alstine</span>, <span>8
 Barb. 630</span></a></span>, after reviewing the various authorities, SELDEN,
 J., says: <span>"The authorities seem to point to the
 following conclusions: First, one who owns or keeps an animal
 of any kind becomes liable for any injury the animal may do,
 only on the ground of some actual or <span data-page_type="bracketed_cite" data-id="pagenumber_6862" data-val="26" data-rep="Colo.App." data-vol="1" data-embedded="true"></span>
 presumed negligence on his part; second, it is essential to
 the proof of negligence, and sufficient evidence thereof,
 that the owner be shown to have had notice of the propensity
 of an animal to do mischief; third, proof that the animal is
 of a savage and ferocious nature is equivalent to proof of
 express notice."</span></span> <span data-paragraph-id="3665" data-sentence-id="7186"><span><span><a href="/vid/894154984" data-vids="894154984" data-reftype="reporter" data-prop-ids="sentence_6563"><span>Pickering v. Orange</span>, <span>1 Scam. 492</span></a></span><span>;</span> <span><a href="/vid/885405334" data-vids="885405334" data-reftype="reporter" data-prop-ids="sentence_6563"><span>Brice
 v. Bauer</span>, <span>108 N.Y. 428</span>, <span>15 N.E. 695</span></a></span></span>.</span> <span data-paragraph-id="3665" data-sentence-id="7264">The principle here
 contended for by <span>appellant</span> is most thoroughly covered in
 <span><a data-refglobal="case:laveronevmangianti,41cal138,10amrep269" data-reftype="reporter" data-prop-ids="sentence_7264"><span>Laverone v. Mangianti</span>, <span>41 Cal. 138</span></a></span>.</span> <span data-paragraph-id="3665" data-sentence-id="7378">In <span>that case</span> <span><span>RHODES</span>,
 C.J.</span>, delivering <span>the opinion of <span>the court</span></span>, said: <span><span>"It is
 insisted, on behalf of <span>the defendants</span>, that a person may
 lawfully keep a ferocious dog,--one that is accustomed to
 bite mankind.</span> <span>That position may be conceded, and it may also
 be conceded that <span>he</span> has the same right to keep a tiger.</span> <span>The
 danger to mankind and the injury, if any is suffered, comes
 from the same source,--the ferocity of the animal.</span> <span>In
 determining the responsibility of the keeper for an injury
 inflicted by either animal, the only difference I can see
 between the two <span>cases</span> is that, in the case of an injury
 caused by a dog, the knowledge of the keeper that the dog was
 ferocious must be alleged and proven, for all dogs are not
 ferocious, while, in the case of a tiger, such knowledge will
 be presumed from the nature of the animal."</span></span></span> <span data-paragraph-id="3665" data-sentence-id="8219">The
 circumstances in <span>that case</span> were that <span>"the dog was
 chained under the steps leading to <span>the defendant</span>'s house
 in such a manner that <span>he</span> could not reach any one ascending
 the steps; that <span>the plaintiff</span>, in entering the house upon a
 lawful business, was ascending the steps, when one of the
 steps, which was loose, slipped from its position, and <span>the
 plaintiff</span>'s leg went through the
 <span data-rep="P." data-id="pagenumber_8608" data-page_type="bracketed_cite" data-val="19" data-vol="27" data-page_gap="7" data-embedded="true"></span>
 opening, when it was seized and bitten by the dog under the
 steps."</span></span> <span data-paragraph-id="3665" data-sentence-id="8680">This is a much stronger case for <span>the defendant</span>
 than <span>the case at bar</span>, for here, in an alley frequented by the
 employes of <span>the defendant</span> and by other persons, as testified
 to by Downing,--an alley easy of access at one end,--this dog
 was kept chained, but so chained that it was capable of
 inflicting <span data-rep="Colo.App." data-id="pagenumber_8984" data-page_type="bracketed_cite" data-val="27" data-vol="1" data-page_gap="8" data-embedded="true"></span> an injury, and did inflict an
 injury, and its disposition to inflict such injury was well
 known to <span>the defendant</span>.</span> <span data-paragraph-id="3665" data-sentence-id="9101">One of the best-considered <span>cases</span> is
 <span><span>the case</span> of <a data-refglobal="case:johnsonvpatterson,1840,14conn1,35amdec96" data-reftype="reporter" data-prop-ids="sentence_9101"><span>Johnson v. Patterson</span>, <span>14 Conn. 1</span></a></span>, wherein this
 language is used: <span><span>"A man may not, in this country, use
 dangerous or unnecessary instruments for the protection of
 his property against trespassers.</span> <span>Such instruments may be
 used in England, but the principles on which their decisions
 purport to rest are not sustainable or applicable here.</span> <span>The
 true principles of the common law are recognized here, and a
 man may use that force which is necessary to protect his
 property, and no more; and <span>he</span> may keep and use such
 instruments and no other, as the same necessary degree of
 force will justify.</span> <span>A dog is an instrument for protection.</span> <span>A
 ferocious one is a dangerous instrument, and the keeping of
 him on the premises to protect them against trespassers is
 unlawful, upon the same principle that setting spring guns or
 concealed spears or placing poisonous food is unlawful."</span></span></span> <span data-paragraph-id="3665" data-sentence-id="10031"><span>This case</span> is followed and approved by <span>the supreme court of
 Connecticut</span> in <span><a data-refglobal="case:woolfvchalker,31conn121,81amdec1751alrpage1123" data-reftype="reporter" data-prop-ids="sentence_10031"><span>Woolf v. Chalker</span>, <span>31 Conn. 121</span></a></span>.</span> <span data-paragraph-id="3665" data-sentence-id="10138">In the
 particular <span>case at bar</span> it is admitted that the dog was
 vicious,--accustomed to bite.</span> <span data-paragraph-id="3665" data-sentence-id="10232"><span>We</span> must, to use the language of
 <span>the court in <span><a data-refglobal="case:woolfvchalker,31conn121,81amdec1751alrpage1123" data-reftype="supra" data-prop-ids="sentence_10232"><span>Woolf v. Chalker</span>, <span>supra</span></a></span></span>, say that <span><span>"the
 <span>defendant</span> had no right to keep such a dog for any purpose,
 unless in an inclosure or building in the night season, and
 cautiously, as a protection against criminal wrong-doers.</span> <span>Certainly <span>he</span> could not keep him on his premises in the
 day-time in such manner that a person, by accident, mistake,
 or a voluntary or involuntary trespass, might be exposed to
 his fury and be injured.</span> <span>In <span>this case</span>, if <span>the plaintiff</span> was a
 trespasser at all, <span>he</span> was so unintentionally, involuntarily,
 and by mistake."</span></span></span> <span data-paragraph-id="3665" data-sentence-id="10818">This, it occurs to <span>us</span>, is quite
 sufficient to settle the liability of <span>the defendant</span> to <span>the
 plaintiff</span> or <span>appellee</span> for the injuries sustained.</span> <span data-paragraph-id="3665" data-sentence-id="10961">It is
 assigned for error that <span>the court</span> erred in its instructions
 to the jury.</span> <span data-paragraph-id="3665" data-sentence-id="11042">Without giving in detail the instructions, <span>we</span>
 think it is sufficient to say that <span>we</span> do not concur with <span data-page_type="bracketed_cite" data-id="pagenumber_11146" data-val="28" data-rep="Colo.App." data-vol="1" data-embedded="true"></span> <span>appellant</span>'s <span>counsel</span> in this view.</span> <span data-paragraph-id="3665" data-sentence-id="11181"><span>We</span> see
 nothing in the instructions not sustained by the authorities
 cited, and, for the same reason, <span>the court</span> was warranted in
 refusing the instructions asked by <span>defendant</span>.</span> <span data-paragraph-id="3665" data-sentence-id="11358">The last and
 only error to which our attention is called is that the
 damages are excessive.</span> <span data-paragraph-id="3665" data-sentence-id="11452">In view of the fact that the jury
 found a verdict for $800, and that <span>the trial court</span>, which
 heard all the testimony, determined that it should sustain a
 verdict for $500, <span>we</span> do not feel at liberty to disturb the
 judgment.</span> <span data-paragraph-id="3665" data-sentence-id="11678">Our conclusion is that the three allegations
 necessary to be made and proved in <span>a case</span> of this
 character--First, that the dog was vicious and in the habit
 of biting mankind; second, that <span>the defendant</span> knew it; third,
 that <span>he</span> bit and injured <span>the plaintiff</span> without any neglect or
 fault on his part--were fully and satisfactorily established.</span> <span data-paragraph-id="3665" data-sentence-id="12023"><span>We</span> think the verdict ought not to be disturbed.</span> </p> <p data-paragraph-id="12071">
 <span data-paragraph-id="12071" data-sentence-id="12082">The
 judgment will be affirmed.</span> </p> </div> </div></div>
 </div> </div>