35 Neb. 638 | Neb. | 1892
The plaintiff in error was informed against in the county court of Gage county because he did unlawfully, maliciously, and willfully shoot and kill a certain house dog, the property of John A. Dobbs, of the value of $50. He was found guilty in the county court and appealed to the district court, where he was again found guilty, and the jury also found that the dog was of the value of $1; and the plaintiff in error was sentenced to five days’ imprisonment in the county jail and to pay a fine of $2 and the costs.
The prosecution was instituted under section 109 of the
Section 191, Consolidated Statutes, provides: “It shall be the duty of every owner or owners of any dog or dogs to securely place upon the neck of such dog or dogs a good and sufficient collar with a metallic plate thereon, on which shall be plainly inscribed the name of such owner. It shall be lawful for any person to kill any dog found running at large, on whose neck there is no collar, as aforesaid, and no action shall be maintained for such killing.
“Sec. 192. Every person who shall harbor about his or her premises a collarless dog for the space of ten days shall be taken and held as the owner, and shall be liable for all damages which such dog shall commit. -
“Sec. 193. The owner or owners of any dog or dogs who shall permit the same to run at large for ten days after this act shall take effect, without such collar as hereinbefore described being securely placed upon the neck of such dog or dogs, shall be deemed guilty of a misdemeanor and fined in any sum not exceeding twenty-five dollars, which, when collected, shall be paid to the county treasury for the benefit of the school fund of the county in which the fine was imposed.”
The testimony shows that Mr. Dobbs’s house was about 100 feet from the public road; that there was no fence between the house and the road; that the dog was in the habit of running out on the road when persons or teams were passing, and barking furiously; that he had run out in a belligerent manner nearly every time that the plaintiff
Jacob Dell, a witness called by the defendant, testified :
Q,. Did you know John Dobbs’s dog?
A. Yes, sir.
Q,. The one that was shot?
A. Yes, sir.
Q. Tell what you know about his attacking you going by there.
A. Well, when I came past with a team he nearly always came out in a vicious, severe manner, just as though he intended to eat something up if he could get hold of it; first, my team isn’t easily scared; he didn’t scare the team very much; he always tackled me when I went by on foot, •he came out very savagely; he came out within three or four feet of me; I knew the dog was going to bite me; I turned around and kicked at him; he barked and growled; he is as cross as any dog I had to encounter; he followed me three or four rods and then he turned back.
Q. Did he put you in fear ?
* * * * * * *
Q. State what effect this attack had upon you and your mind, at this particular time; I allude to the time of-the attack.
A. I don’t know that it had any effect, only that it scared me.
Q. What were you scared about?
A. I was afraid he was going to bite me.
Other witnesses testify to substantially the same facts.
The testimony also shows that the dog came out on the road when the plaintiff in error was passing that place and commenced barking in a hostile manner, whereupon the plaintiff in error shot and killed the dog.
Second — The design of the statute is that all dogs shall wear collars, so that it shall be known who the owners are. If a dog is found on the public road without a collar and away from his owner or the person having charge of him, the statute in effect authorizes the destruction of the dog.
But it is said the dog was not running at large when he was killed. The words “running at large,” in the connection in which they are used, mean running on the public road or off from the owner’s premises without any person claiming an interest in the dog being near at hand.
In Commonwealth v. Dow, 10 Met. [Mass.], 382, it was held that a dog is going at large in a town if he is loose and following the person who has charge of him at such a distance that he cannot exercise control over the dog.
In McAneany v. Jewett, 10 Allen [Mass.], 151, the dog was on the owner’s premises, disturbing no one when the defendant entered thereon and shot the dog, and it was held that the dog was not at large.
In Loomis v. Terry, 17 Wend. [N. Y.], 496, it was held that if a person permit a mischievous dog to run at large on his premises and a person is bitten by him in the daytime the owner will be liable for the damages, although the person injured was trespassing on the ground of the owner at the time. It is made the duty of the owner to put a collar on his dog, so that his ownership .may be known. If he fails to do so and the dog is killed, off from the owner’s premises, there can be no recovery.
Third — The testimony would warrant the jury in find
An attempt was made to show that other dogs attacked people in passing along the roads. Evén if proved, it would not aid this case. [Maxwell v. Palmerton, 21 Wend. [N. Y.], 408.) In the case cited Chief Justice Nelson says: “If a dog be in fact ferocious, at large, and a terror to the neighborhood, the public would be justified in dispatching him at once.” The same statement had previously been made in Putnam v. Payne, 13 Johns. [N. Y.], 312, and is no doubt the law.
No person has a right to keep a dog that persistently assails travelers passing peaceably along the public road, and the fact- that many persons permit their dogs to do so does not justify the practice. In any view of the case, therefore, the judgment cannot be sustained.. The judgment is reversed and the cause remanded to the district court for further proceedings.
Reversed and remanded.