Majority
p. 606Eugene Fitzgerald, by Kate Fitzgerald, His Guardian ad Litem, Respondent, v. Joseph Warholy, Appellant. Second Department, December, 1905.
Headnote
Scienter of vicious character of dog.Evidence that the owner of a dog has seen it rush at people and snap at them and has called the dog back under such circumstances, is sufficient to show knowledge that the dog was likely to attack and bite persons upon the highway.
Hooker, J., ,dissented.
Appeal by the defendant, Joseph Warholy, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered in -the office of the clerk of said Court on the 30th day of September, 1904,, upon the verdict of a jury for $500, and also from, an order made at the close of the trial denying the defendant’s motion for a new' trial made upon the minutes.
George C. Andrews, for the appellant.
Thomas F. Curran, for the respondent.
Eugene Fitzgerald, by his guardian ad litem, brings this action to recover damages • alleged to have been sustained by being bitten by a dog owned by the defendant while the plaintiff was upon one ■ of the public streets of the city of Yonkers. There is no dispute as
p. 607
to the ownership of the dog, and practically no conflict of evidence as to the fact of the plaintiff being attacked and injured by the dog, and the only question of any importance bearing upon the liability of the defendant is as to the latter’s knowledge of the vicious character of the dog. There was evidence to show that the dog had been seen to run out and attack people who were getting on and off of street cars which passed the defendant’s premises where the dog was kept, and that the defendant had at times seen the dog rushing at people and had called him back. Witnesses testified that the dog had snapped at them; that this was done by grabbing at them with his open mouth, and one witness testified that he had seen the dog tear a woman’s dress as she was getting off the- street car. Some of these things appear to have been doné in the presence of the defendant, and while he denies that he had any knowledge of any vicious tendencies on the part of the dog, we are persuaded ■that the evidence was sufficient to justify the jury in finding that the defendant knew of facts which were sufficient to apprise him that the dog was likely to attack and bite persons upon the highway.
There was an effort to show that the plaintiff brought the damages upon himself by reason of his teasing the dog, but the evidence fails to show that the boy was doing anything at the time the attack was made.
■ The judgment and order appealed from should be affirmed, with costs.
Bartlett and Miller, JJ., concurred; Hooker, J., dissented.
Judgment and order of the City Court of Yonkers affirmed, with costs.