April 15, 1924. The opinion of the Court was delivered by
The plaintiff recovered damages in a Magistrate's Court for the killing of his dog as the result of a collision with an automobile, driven by the defendant on one of the streets of Westminster. The judgment of the Magistrate was affirmed by the Circuit Court, Hon. J.F. Carter, Special Judge, presiding, in a carefully considered order. From that order the defendant has appealed to this Court.
All points raised by the exceptions are fully and satisfactorily covered in the order of the Circuit Judge, and, for the reasons therein stated, we are content to affirm the judgment of the Circuit Court.
One contention, however, earnestly urged upon our attention by appellant's counsel, may possibly justify brief additional discussion. On the trial before the Magistrate the defendant requested the Court to charge, in substance, that under the authority of Fowles v. RailwayCo., 73 S.C. 308; 53 S.E., 534, and McDaniel v. Railway Co., 101 S.C. 415; 85 S.E., 957, the operator of an automobile approaching a dog, not apparently in a helpless or disabled condition, has a right to rely upon the presumption that the dog will take care of itself and get out of the way and escape injury, "but if such a kind of dog does not get out of the way and gets injured or killed, then the person that killed it would not be liable under the laws of this State." The line of cases, commencing with Wilsonv. Railroad Co., 10 Rich., 52, relied upon to support that position, decide nothing more than that the rule in Danner'sCase, 4 Rich., 329; 55 Am. Dec., 678, raising a presumption of negligence from the fact of the killing of certain animals on a railroad track, does not apply to the killing of a dog. Unquestionably, the mere fact of the killing of a dog, either by the driver of a locomotive engine on a railroad track, or by a motorist upon a highway, raises no presumption that the killing was negligently done. If appellant's requested instruction had been directed solely to that point, clearly his position would have been tenable. But the requests to charge embraced the proposition that where a dog, in apparent possession of his faculties, is killed by a motorist, there is no liability as a matter of law for the reason that the driver of an automobile "has a right to rely upon the presumption that the dog will take care of himself and get out of the way." As properly held by the Circuit Judge, the motorist's liability for negligence in those circumstances is to be tested by the application of the standard of due care, untrammeled by presumptions of any kind.King v. Holliday, 116 S.C. 463; 108 S.E., 186. In the application of that standard the extent to which the driver of a motor vehicle on a street or highway may safely or properly rely upon the intelligence and agility of a dog to avoid a collision is a matter for the consideration of the triers of fact, whose duty it is, in the light of common experience, to determine the degree of care required of the
driver of the vehicle in the circumstances of the particular case.
The judgment of the Circuit Court is affirmed.
MESSRS. JUSTICES WATTS, FRASER and COTHRAN concur.
MR. CHIEF JUSTICE GARY did not participate in this case.