This is an action for damages against the owner of a dog. The petition alleges that the dog was vicious, which fact was known by the defendant prior to the attack by said dog upon the plaintiff. The defendant’s answer denies the allegations of the petition and further avers that the plaintiff’s physical condition is not due to any attack or frightening by defendant’s dog.
In passing, we observe that the procedure followed by the trial court is in line with the modérn prevailing tendency toward practicalism which seeks to shorten and to simplify judicial procedure. It is-the well-established law of this state, as well as of others, that the trial court has the right and power to vacate, set aside, amend or correct any judgments or orders made by it during the same term. Such orders may be entered upon the court’s own motion as well as upon the motion of counsel. Douglas County v. Broadwell,
¡ In order to charge one with liability for the acts of a dog, it must of course be established that he is the owner .or keeper. It is so established in this case. It then devolves upon the plaintiff to show that the dog was vicious and that the owner knew the dog to be vicious. The law clearly recognizes the right of the owner of a vicious dog to keep it for the necessary protection of life and property. But as such a dog is inherently dangerous, one exercising the right to keep it must do so at his own risk, and is held strictly liable for any damage resulting to another. 1 R. C. L. 1116, sec. 59. In the case of injury, the gravamen of the action is the knowledge of the owner that the dog has vicious or mischievous propensities. Warrick v. Farley,
The appellee contends and the trial court ruled, that there could be no recovery for injury as a result of shock caused by the attack of a dog unless it was accompanied by a bite. We think this position untenable. Let us review briefly the evidence in this case. This dog had attacked her upon a previous occasion and had been dragged away from her by a member of defendant’s family. At the time involved in this controversy, plaintiff was walking along the street where she had a right to pass without interference, when she heard the dog growl, saw him start toward her, crouch down and bare his teeth, whereupon she fainted and knew nothing more until she was picked up. The dog did not leave the owner’s premises but was close to the sidewalk. As a result of the shock received from this attack, the plaintiff has suffered from nervous prostration. Much is made in argument of defendant about the small size of the Spitz dog which started this litigation. We may remark that the fear of a dog is not so much caused by his size or his bark as by his biting ability, and that a large part of the fear of a dog is caused by the popular apprehension of tetanic or hydrophobic poison from the bite and the evil results thereof. This is as obvious as that a small bandit behind a good gun will produce just as much fear as a large man. This also is a question of fact.
We have heretofore held that there is a liability for damages for physical injuries which are proximately caused by
The owner of a dog, known by him to have vicious and mischievous propensities, owes a legal duty to every one to protect them from injury. He especially owes this duty to a traveler passing along the highway adjacent to his premises. The owner of a dog has no right to let such a dog run at large, attacking and assaulting persons upon the highway. Nehr v. State,
We reluctantly reach the conclusion that there was liability on the part of the defendant to the plaintiff for her injuries and that the action of the trial court in sustaining the motion for a directed verdict and dismissing the action was erroneous. Having reached this conclusion, it follows that the judgment must necessarily be reversed. Section 20-1926, Comp. St. 1929, provides that upon reversal the court shall remand the cause to the district court for such judgment as it should have rendered. In this case, the trial court considered the question of the liability of the plaintiff and instead of granting a new trial vacated the judgment and verdict and dismissed the action. The only question presented by the record is the one discussed herein. It necessarily follows that the first error of the trial court was committed by the entry of the order vacating the judgment and the verdict. In a case such as this, where the trial court sought to correct a supposed error in overruling motion for directed verdict by vacating verdict and judgment thereon and then dismissing the action, this court will, upon reversing the judgment of dismissal, if no other error is presented by the record, remand the cause to the district court, with directions that the verdict and judgment be reinstated. This rule finds support in Roberson v. Reiter,
In Porter v. Sherman County Banking Co., 40 Neb 274, we held: “Except where the decision of an appellate tribunal necessitates a trial of an issue for which the Constitution guarantees a trial by jury, it rests in the discretion of the appellate tribunal, upon the reversal of a judgment, to enter in the appellate court a proper judgment, or to remand the case to the court from which it was appealed, either with directions to enter a specific judgment, for a retrial of particular issues, or for a new trial of the whole case.” See, also, Armstrong v. Mayer,
The judgment of the trial court in dismissing the action-is reversed and the cause remanded, with directions to the trial court to reinstate the verdict and judgment thereon. Since the trial court has not yet ruled upon the motion for new trial, it will then be its duty to pass upon said motion.
Reversed.