Nelson v. Barrett

85 N.Y.S. 817 | N.Y. App. Div. | 1903

Hooker, J.:

The plaintiff sued the owner of a vicious dog, and. a jury in the Municipal Court of the city of New York has found a verdict for. the defendant.. Hpon that verdict a judgment was entered, from which the plaintiff appeals.

There'was abundant evidence of the vicious propensities of the dog, and the court correctly presented that branch of the case to the jury,

Hpon the question of scienter, however, We think the court erred in its instructions to the. jury. The witness Seimérs, who kept ,a saloon next door to the defendant’s home, testified that on many occasions prior to the biting of the plaintiff by the dog, he told the defendant that he had complaints from his customers and passers-by that the dog had interfered with them, and said that something Would have to be done about the dog, to which defendant replied that they would have to chain it up. The witness. Meyers testified that, prior to plaintiff’s experience she heard Seimers tell defendant that there would be trouble some time if he did not chain . the dog up. The defendant does not deny this evidence, but said that Seimers told him that it hurt his trade, and that it was better to get rid of the dog and tie him up; he testified that no one ever notified him that the dog had bitten any one or was vicious, and ■ never, to his own knowledge, did he know of the dog biting any one. The court, however, instructed the jury several times during the course of the charge that the plaintiff must establish that actual notice was brought home to the defendant that the dog had bitten some one or attempted to do so. At the close of the charge the plaintiff requested an instruction that, if the facts were sufficient to have put a reasonable man upon inquiry as to whether the dog was dangerous or not, and the defendant failed to heed the warnings or totally disregarded them, he was liable; to which the court replied that it would leave that question to the jury. In the. light of the antecedent charge in respect to notice f to the owner, this remark, coupled with the court’s failure to charge as requested, could n'ot well have been considered by the jury otherwise than a refusal, and presented substantial and prejudicial error. Much less evidence than is presented in this case has been held to establish notice. (Duval v. Barnaby, 75 App. Div. 154; and cases there cited.) The proposition urged by the- appellant is well within the authority of those cases, and the doctrine there announced requires us to reverse the judgment.

The judgment and order should be reversed and a new trial

ordered, costs to abide the event.

Bartlett, Hirsohberg- and Jerks,, JJ., concurred.

Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide the event.