186 Mass. 176 | Mass. | 1904
This is an actipn to recover of the defendants, who are husband and wife,'damages for the bite of a dog which belonged to the wife. The judge directed a verdict for the husband, to which no exception was taken and left the case to the jury as against the wife. We shall speak of the wife as the defendant. The jury returned a verdict for the defendant, and the case is here on exceptions by the plaintiff to the refusal of the judge to give certain instructions that were requested, and to those that were given. When he was bitten the plaintiff was upon the premises occupied by the defendant and her husband, a short distance from the driveway that led from the street to the barn, and there was testimony tending to show that he was in the act of taking up a rope, which lay upon the grass, when the dog bit him. In addition to the general verdict found by them for the defendant, the jury answered three questions that were submitted to them by the judge as follows: “ 1. Was the plaintiff in the exercise of due care at the time he was bitten by the dog? Answer: No. 2. Was the plaintiff taking the rope and did he have the intent to steal it at the time he was bitten ? Answer: 1. He was taking up the rope. 2. No intent to steal it.” The remaining question related to the amount of damages.
The burden of proof was on the plaintiff to show that at the time when he was bitten he was in the exercise of due care (Raymond v. Hodgson, 161 Mass. 184), and whether he was or not was a question of fact for the jury. The first instruction requested, which was, in substance, that the evidence would not warrant a finding that he was not in the exercise of due care, was rightly refused. There was a sign on the barn “ Beware of the dog ”, and the jury could well find, as they did, that taking all of the circumstances into account the plaintiff’s conduct was not that of a prudent man. It could not be ruled as matter of law that there was no evidence that he was not in the exercise of due care. The defendant had a right to keep a watch dog to protect herself and the premises occupied by her husband and herself and the property therein from thieves, tramps and burglars. If there was an implied license to the plaintiff to enter on the premises in the usual course of his vocation, it was con
Exceptions overruled.