110 Me. 306 | Me. | 1913
The plaintiff, a boy fourteen years of age, recovered a verdict of $470 as compensation for an injury received from the bite of the defendant’s dog. The ease comes to the Raw Court on the defendant’s motion to set aside the verdict as against the law and the evidence.
The action is based on Sec. 52 of Chap. 4, R. S., which declares that, “When a dog does damage to a person or his property, his owner or keeper . . . forfeits to the person injured the amount of damage done, provided said damage was not occasioned through the fault of -the person injured.”
The primary lexical meaning of the word “fault” is defect or failing. Hence, in the language of the law and in the interpretation of statutes, it is held to signify a failure of duty, and deemed to be equivalent of negligence, 19 Cyc., 460; 12 Am. & Eng. Enc. Law, 886. It was accordingly incumbent on the plaintiff to prove that the injury received by him from the bite of the dog was not occasioned by any want of due care on his own part. It was not necessary, however, that the statute should expressly impose upon the plaintiff the burden of proving that the injury was not occasioned by his own fault. That burden was necessarily implied in the obligation to prove that the act of the dog was the cause of the injury. If it was occasioned by his own fault, it was not, in a legal sense, caused by the act of the dog.
But in the case of children who have not arrived at years of discretion, the exercise of due care does not require the thoughtfulness and judgment of persons of mature years. In Plumly v. Birge, 124 Mass., 57, it appeared that a 'boy thirteen years old endeavored to prevent a dog from crossing a narrow bridge, which he had a right to cross unmolested, by striking at him with a stick about three feet long, and as the dog came within reach for the purpose of crossing, he struck him over the back with the stick, and thereupon the dog snapped at and bit the plaintiff on the leg as he passed him. But in consideration of the thoughtlessness and heedlessness natural to boyhood, the court refused to disturb a verdict of the jury in favor of the injured boy. In the opinion, it is said, “The plaintiff may have been old enough to know, if he had stopped to reflect, that striking a dog would he likely to provoke him to bite and yet, in striking him, he may have been acting as a boy of his age would ordinarily act under the same circumstances.”
In the case at bar, the plaintiff was a boy fourteen years of age. His home was about an eighth of a mile from the residence of the defendant; and for three years he had been going there every evening to obtain- milk. He had also been in the habit of playing on the premises with- the defendant’s sons, one of whom was about his own age. The dog in question had been there during all that time, but the plaintiff had not been accustomed to play with him, although it does not appear that he had ever heard that the dog had bitten any one, or been warned that he was vicious.
It appears that the dog was generally kept in the defendant’s barn. On the evening of the injury, after playing together for a while on the lawn, the boys all went into the barn and stood near the barn door.
With respect to his own movements and the action and appearance of the dog immediately preceding and at the time of the attack
The plaintiff’s testimony on this point is corroborated by the defendant’s son, the only person besides the plaintiff who saw the occurrence, who testifies as follows: “He stooped over to him and was talking to him and he was down so low that he bit him.” This witness does not claim that he saw the plaintiff touch the dog at any time; but he testifies that after the plaintiff went into the house, he heard him say that he patted the dog when he said “Hello” to him.
But the surgeon who dressed the wound says: “The boy’s face was wrapped up, and when the bandage was taken off, his lip on his right side was torn down clear to the gum, and laid right over. . There was a little piece gone near the center of the lip, and that flap was turned right over here, and of course the support being taken away from that comer, the rest of the lip dropped down. Of course there was a good deal of hemorrhage.” It was necessary to take eight stitches to give the wound proper surgical dressing. It is contended for the plaintiff that it is wholly improbable that the boy, with his mouth in the condition described, attempted to make any statement in regard to the occurrence.
But upon the facts of this case it is immaterial whether the plaintiff was patting the dog or not at the time he was bitten. According to the rule laid down in the Massachusetts cases above cited, and adopted by this court in Garland v. Hewes, 101 Maine, 549, the plaintiff was held only to the exercise of such- thoughtful
Motion overruled.