139 Iowa 563 | Iowa | 1908
Plaintiff claims that while driving along a public highway near defendant’s residence, his (defendant’s) dog came out and attacked the team she was driving,
IY. In.one of its instructions the trial court directed the jury as follows:
The statute provides as follows: * It shall be lawful for any person to kill any dog caught in the act of worrying, maiming or killing any sheep or lamb, or other domestic animal, or any dog attacking or attempting to bite any person, and the owner shall be liable to the party injured for all damages done, except where the party is doing an unlawful act.’ This statute creates liability, where it is shown that a party is injured, for all damages done by a dog caught in the act of worrying, maiming, or killing any sheep, lamb, or other domestic animal, or where the damages result to the party injured by reason of being attacked or bitten by a dog, and the owner is liable to the person injured for all damages done*567 of which the act of the dog in so doing is the proximate canse, but you will notice that this absolute liability only attaches where the dog is shown to have been guilty of these acts, which, under the statute hereinbefore set out, justifies the killing of the dog. So it is material for you to determine what this dog did, if anything, with respect to the plaintiff and the team she was driving. If he was worrying the team, biting their heels, or snapping at them, or was attacking the plaintiff, or attempting to bite plaintiff, and you are satisfied, by the preponderance of the evidence, that the dog was doing these acts which justified the taking of his life, and that the doing of these acts caused plaintiff’s team to run away, without any fault or negligence on her part, and are the proximate cause of plaintiff’s injury of which she complains, then your verdict should be for plaintiff, but if the plaintiff failed to satisfy you by a preponderance of the evidence that the dog was doing any of these acts, which, under the statute hereinbefore set out, justifies the killing of the dog, or has failed to show that the doing of these things by the dog, if they were done, was the proximate cause of the injury of which she complains, then she cannot recover in this actipn under the statute, for to justify a recovery under the statute, which makes the owner liable to the party injured for all damages done, it must be made to appear that the injury was caused by the dog while in the act of doing some of those things which, under the statute, makes it lawful for any person to kill the dog.
The complaint made of the instruction is so peculiar that we here copy from counsel’s brief all that he says upon the subject:
While as a general rule this may be correct, and that usually a person would be justified in killing a dog, yet not necessarily so. The dog might be a young, untrained pup, and playfully ran in the road and chased the team. If a very valuable pup it would hardly be in good conscience to say the person would be justified always on such occasions in killing him, yet the owner might be liable for the injury he caused. Under this instruction an extra burden was placed upon the jury. They were required to first ascertain whether plaintiff would have been justified in killing*568 the dog. Some men are very tender towards a dog, and do not feel that a person would be justified in killing a dog because he chases their team in the road, and if they should have felt that way, they would have been required to have found for defendant, otherwise, if they had not found the killing justifiable.
The judgment must be, and it is, affirmed.