Turner v. Craighead — 31 N.Y.S. 369

Majority

p. 369

(83 Hun, 112.)

TURNER v. CRAIGHEAD.

(Supreme Court, General Term, Second Department.

December 10, 1894.)

Headnote

Vicious Dogs—Knowledge op Owner.

It is a question for the jury whether defendant ought to have known that his dog was savage, where the evidence shows that the dog had bitten other persons, and that it was his habit to rush out and bark at people passing by.

Appeal from Westchester county court.

Action by William I. Turner against Horace Craighead. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

p. 370

Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.

William A. Boyd, for appellant.

Frederick W. Sherman, for respondent.

This action was brought to recover damages resulting from being bitten by a dog owned by the appellant, in July, 1893. The exceptions present a single question only, viz. whether the evidence was sufficient to charge the appellant with knowledge of the vicious habits and character of the dog. It was proven that the dog had bitten persons on two occasions prior to the attack made upon the plaintiff, and that it was his habit, as also that of two other dogs owned by the appellant, to rush out at persons passing upon the highway, and bark at them. A witness named Owens, who had been in the employ of the appellant during the year 1892, testified that the dog had made an attack upon him and bitten and torn his clothing; that he had attacked and bitten a carpenter upon the appellant’s premises; that when any person passed along the highway the three dogs would all rush out after him; that the dog in question was ugly, and would jump at horses’ heads and try and catch them by the snout. There was no evidence to show that the appellant knew of those occurrences, and Owens testified that he never informed him of the habits or characteristics of the dog. The court denied a motion to dismiss the complaint, and in a charge to which there was no exception submitted it to the jury to determine whether the appellant ought to have known that the dog was savage and likely to bite, charging them that if a person keeps an animal upon his place, and fails to exercise ordinary supervision over it, and lets it run, and fails to obtain the knowledge which ordinary supervision over it would give, he is chargeable with the same knowledge he would have obtained had he inquired and supervised in the ordinary and usual way. This ruling of the court was correct, and is sustained by abundant authority. Brice v. Bauer, 108 N. Y. 432 , 15 N. E. 695 ; Whart. Neg. § 905; Knowles v. Mulder, 74 Mich. 202 , 41 N. W. 896 . The judgment and order must be affirmed, with costs. All concur.