89 A.D.2d 809 | N.Y. App. Div. | 1982
Order and amended judgment unanimously modified in accordance with memorandum and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Wyoming County, for a new trial on the issue of damages. Memorandum: Plaintiffs Hazel and Theodore Wheaton brought this action to recover for injuries sustained by Hazel Wheaton in an incident involving defendant’s Labrador Retriever, Kuro. The case was tried by a jury which returned a verdict in the amount of $70,000 for Hazel and $50,000 for Theodore on his derivative action. The court granted defendant’s motion to set aside the verdict to the extent of setting aside the verdict for Theodore and an amended judgment was entered thereon. Defendant appeals and plaintiff cross-appeals from that amended judgment. Plaintiffs own and operate a dairy farm. Hazel Wheaton testified that she and her husband had recently acquired Ginger, a female German Shepherd, who at the time of the incident was in heat. On the evening in question, while Ginger was chained to a fuel tank in the Wheatons’ yard, Kuro came into the yard and attempted to mate with her. Hazel went out to unhook the chain in order to take Ginger inside. While stooping to unfasten the chain, she was knocked over. Apparently rendered unconscious for a few moments, she awoke to find