Wolff v. Lamann

108 Ky. 343 | Ky. Ct. App. | 1900

Opinion of the court by

JUDGE BUR'NAM

Reversing.

This is an action for tort, brought under section 68 of the Kentucky Statutes, to recover damages for an injury to plaintiff, a girl of eleven years of age, from, the bite of a dog alleged to have been owned and ke.pt by the defendants. The answer of the defendants is in two paragraphs. In the first they deny that any of them owned or kept the dog at the time and place referred to in the petition, or at all; and in the second paragraph they plead contributory negligence, and allege that the dog was quiet and good-natured, and that he was provoked to bite tlie plaintiff by her attempting to take from him a piece of meat which he was eating, and otherwise teasing and annoying him. Plaintiff replied, denying that the dog was quiet and good-natured, or that she attempted to take the meat from him, or otherwise teased or annoyed him. The trial resulted in a verdict and judgment in favor of plaintiff for $1,000, which the defendants say was attributable to a number of errors committed to their prejudice by the trial court.

First, it is insisted that the court erred in failing to sustain their motion for a judgment notwithstanding the verdict, because the petition does not state a cause of .action at common law, for the reason that it does not allege that appellants knew the dog was vicious, — knowledge of such viciousness being the foundation of such an action at common law; and, second, that it does not state a cause of action under the statute, because it fails to allege that the injury did not occur upon the premises of the owners of the dog after night, or that she was not engaged in some unlawful act in the daytime.

The petition alleges that the dog was owned and kept ■by the defendants, and while so owned and kept toy them, it bit the plaintiff. These are the essential allegations, under the statute, to authorize a recovery in a proceeding of this sort, and it was not necessary for the plaintiff to have negatived the existence of the exceptions provided by the statute as a ground of defense. This question was considered in the opinion rendered in the case of Bush v. Wathen, (Ky.), 47 S. W., 599; and it was there held that “the plaintiff in an action under this statute, to recover damages for an injury inflicted by a dog, is not required to negative the exceptions,” so. it will therefore be unnecessary for us to again consider that question. We are of opinion that the averments of the petition were sufficient to support a cause of action under the statute, and that the motion for judgment upon the pleadings was properly overruled.

The trial court refused to instruct the jury upon the issue of contributory negligence raised by the second paragraph of the answer, upon the ground that it was not in violation of the rights of the defendants for the infant plaintiff to tease or annoy the dog when it was eating meat, or to attempt to take the meat from him, and was not an unlawful act, under the statute. It was held in Bush v. Wathen, supra, that contributory negligence was. available as a defense in an action under this statute, and that “the act of the plaintiff in.-teasing and worrying the dog, and but for which the dog would not have bitten him, might be pleaded;’’ and this seems to be the general rule. It was held in Keightlinger v. Egan, 65 Ill., 235, that “if the plaintiff wantonly irritated and aggravated the dog, and the dog bit him in repelling the aggression, and not from a mischievous propensity, the plaintiff should not be allowed to recover for damages caused by his,own wrong;” and in Fake v. Addicks, 45 Minn., 37, (47 N. W., 450,) that “where a person voluntarily and unnecessarily . provokes a vicious animal, and thus invites- or induces the. injury, knowing the probable consequences, he is not entitled to recover.” And the ruling in Muller v. McKesson, 73 N. Y., 195, and in Lynch v. McNally, Id., 347, is to the same' effect. It is a matter of common knowledge that dogs, and indeed, all wild animals, are especially irrata-ble when eating, and that any interference with them at this time is attended with more or less danger of retaliation on their part; and to have attempted to take away from the dog the meat which he was eating, or to have other-, wise teased or annoyed him at that time, is such evidence-of contributory negligence as authorized the submission of this question to the jury. But it is proper to say that the age of the plaintiff is -an important fact for the consideration of the jury in passing upon this question, and a child of eleven years of age should not be put upon the-same plane of care and diligence as an adult. Due care on ber part did not require tbe judgment and thoughtfulness vyhich would be expected of an adult under the same circumstances, and she is entitled to recover, if, under the circumstances, she exercised that degree of care which under line circumstances would reasonably foe expected of a girl of her years ánd capacity. See Meibus v. Dodge, 38 Wis., 300; Plumley v. Birge, 124 Mass., 57; and Linck v. Scheffel, 32 Ill. App., 17.

Other errors are complained of, in the rejection of testimony, but, as they are not likely to again occur, they will not be considered. For the reasons indicated, the judgment is reversed, and the cause remanded for a' new trial consistent with this opinion.