79 Mo. App. 376 | Mo. Ct. App. | 1899
The material averments of the petition are that Gustav Speckmann is a youth nine years old; that William O. Richardson, by and through whom he sues, is his duly appointed guardian; that on August 11, 1897, and for some time prior thereto, defendant was the owner and keeper of a dangerous and vicious dog and known to the defendant to be such; that on said day the plaintiff was sent by defendant into the yard of defendant to deliver some chickens; that at the time the dog was running loose in the yard and while plaintiff was performing the errand and while in defendant’s yard he was attacked by the dog, and his leg was badly lacerated and torn by it, whereby he suffered injuries and was damaged in the sum of $5,000, for which he asks damages.
The answer' was a general denial and a special plea of contributory negligence. The special plea was put in issue by a reply. A trial was had to a jury, resulting in a verdict and judgment for plaintiff for $600, from which defendant duly appealed.
The facts not controverted, briefly stated, are that plaintiff with his mother went to defendant’s place of Business (7009 8. Broadway) in the city of St. Louis with a dozen chickens for sale, which the defendant purchased and ordered his hired man (Baumgartner) to take to his bam and to turn them loose, that plaintiff accompanied Baumgartner to the barn; on their return they passed through the defendant’s back yard where defendant’s dog was running loose; that the dog attacked the plaintiff, threw or pulled him to the ground, and tore and lacerated his left ieg above the knee, making a severe and painful wound, which was treated for five weeks
“Eirst. If the jury find from the evidence that the defendant on and before the 11th day of August, 1897, was keeping the dog mentioned in the evidence as biting the plaintiff, and if the jury find from the evidence that said dog
“And if the jury find from the evidence that the defendant knew of said vicious disposition of said dog before the 11th day of August, 1897, and if the jury find from the evidence that on the evening of August 11th, 1897, the plaintiff was on the premises of the defendant with his mother to sell and deliver chickens, and whilst so on said premises of the defendant the plaintiff was bitten by said dog on account of said disposition to bite strangers, and if the jury find from the evidence that plaintiff was at the time on defendant's premises with the assent of defendant, plaintiff is entitled to recover if he was exercising ordinary care according to his age and discretion, such as boys of his age and discretion would ordinarily use under like circumstances.
“If the jury find for the plaintiff they should assess his damages at such sum as they believe from the evidence will compensate him for any pain of body or mind that he has suffered, not exceeding the sum sued for.''
The court gave the following instruction asked by defendant:
“The court instructs the jury that if they find from the evidence that plaintiff, by the exercise of such care as an ordinarily prudent and careful person of the age, experience, capacity and intelligence of the boy Gustav Speekmann would ordinarily exercise under similar circumstances would have avoided the happening of the injury complained of the verdict should be for the defendant.”
The court refused the following asked by the defendant:
“Third. The court instructs the jury that before plaintiff can recover in this case he must satisfy the jury by a preponderance of evidence.
“First. That prior to the biting complained of, the defendant's dog was vicious, harmful, mischievous, dangerous, or had a propensity to bite mankind.
“Third. That the alleged biting was occasioned by the negligent act or acts of defendant, and unless the jury find from the evidence that such facts have been proven by plaintiff, the verdict must be for the defendant.
“Eifth. If the jury find and believe from the evidence that the plaintiff was not directed to go into the yard of defendant and had no lawful purpose for going in there, and was not in there by consent, knowledge or permission of defendant, and that the entrance to said yard was made in the night time when the dog in question was loose, then your verdict should be for defendant.”
The contention of appellant is that the basis of the action is negligence, and that his refused instructions should have been given. If it was incumbent on the plaintiff to entitle him to recover to show that defendant negligently sent him to the barn then the appellant’s contention is undoubtedly correct. The evidence leaves no room for the shadow of a doubt that defendant knew of the vicious propensity of the dog. The fact that a dog is kept as a watch dog (as this one was) and is kept tied in the day and turned loose at night, is notice to the master that he is dangerous. Brice v. Bauer, 2 Am. St. Rep. 458; Brice v. Bauer, 108 N. Y. 428; Montgomery v. Koesler, 35 La. Ann. 1091; Good v. Martin, 57 Md. 606. Defendant’s own testimony shows that he knew the dog was dangerous and that he knew or had good reason to believe the dog was loose at the time the plaintiff went into the yard; indeed scienter by defendant of the vicious propensity of the dog is not controverted. The law is the dog being a vicious one of which propensity the defendant had knowledge, he kept it at his peril. Strauss v. Lieff, 46 Am. St. 122; Conway v. Grant, 30 Am. St. Rep. 145;