Opinion
July Term, 1902.
W.H. Dunn, for the appellant.
H.S. Haff, for the respondent.
The record does not disclose on what grounds the learned County Court reversed the judgment of the Justice Court. The action was tried before a justice without a jury and a judgment rendered for $100 damages. The plaintiff, a boy of fifteen years of age, was severely bitten by a "yellow bull dog." There is abundant evidence that the dog was vicious in fact. That his nature was vicious and his propensity was to attack and bite men and boys were sufficiently proven. This dangerous propensity was proven to date back more than a year prior to this biting of which plaintiff complains. The defendant, Julia Barnaby, as a witness, testified that she owned the house and premises where the dog was harbored; that she had fed the dog for three years; that she "kept the dog in barn to look after my things as a watch dog; never kept the dog tied up or muzzled or locked up during the daytime; dog would make a fuss if anyone went near the barn at night." Being asked to whom the dog belonged, she replied: "To the house." From the testimony of Peter Barnaby it appears that the dog belonged to one of the children in defendant's family. The defendant also testified that sometimes the dog went away with the children of her family. He was with one of these children on the day plaintiff was bitten. He was also with the same person when the dog bit a boy by the name of Charles King some two weeks before plaintiff was bitten. He was with the same person about a year previous when he bit a boy named Frank King. The defendant denies that she had any knowledge that the dog had bitten any one before the plaintiff was bitten.
Considering the vicious nature of this species of the dog kind, the fact that he was kept as a watch dog to ward off trespassers and shut in the barn nights for that purpose, and that he made "a fuss if anyone went near the barn," that within the previous year, while in company with a member of her own family, he had bitten two other boys, I think it became a question of fact whether defendant did not have sufficient knowledge that the dog was vicious and dangerous and liable to do the very thing the plaintiff here complains of. The evidence warrants the finding that it was the duty of defendant to so restrain the animal by muzzle or otherwise as to prevent the injury to others so natural to apprehend from a "yellow bull dog" with vicious reputation.
The following language is quoted in Brice v. Bauer ( 108 N.Y. 432) with approval: "All dogs may be mischievous, and, therefore, a man who keeps a dog is bound either to have it under his own observation and inspection, or, if not, to appoint some one under whose observation and inspection it may be, and that person's knowledge is the knowledge of the owner." This bears directly on the question as to whether the knowledge of a member of defendant's family, who seems to have had custody of the dog when away from defendant's house, is not also to be imputed to the defendant. In the same case the following language is also quoted with approval: "The defendants admitted that the dog was purchased for the protection of their premises. Unless of a fierce nature he would hardly have been useful for that purpose." I think it requires a degree of watchfulness on the part of the owner of a "yellow bull dog" kept and used as a watch dog, with every indication of a vicious propensity to bite mankind, and that the owner is fairly warned, and is not justified in waiting until some one has had his flesh torn off before he restrains the brute. It becomes a question of fact for a jury to determine in such cases whether the owner has not had the knowledge which would move a prudent man to remove this animal from opportunities to injure others. Did she have reasonable cause to apprehend the injury complained of? "Scienter" means no more than that.
It was said in Hahnke v. Friederich ( 140 N.Y. 224, 227): "When a person keeps a dog for the purpose of guarding his property against trespassers or criminals, it is not unreasonable to infer knowledge on his part of the propensity of the dog to attack and bite mankind and negligence in allowing him to be at large."
The question being one of fact it was properly disposed of in Justice Court.
The defendant was held liable for harboring the dog. This was not error. ( Quilty v. Battie, 135 N.Y. 201.) The exceptions taken on the trial to the admission of evidence present no error which authorized the County Court in reversing the judgment.
The judgment of the County Court is reversed, with costs to appellant, and the judgment of the Justice Court is affirmed, with costs in the County Court.
All concurred.
Judgment of the County Court reversed, with costs to appellant, and judgment of the Justice's Court affirmed, with costs in the County Court.