Webber v. Hoag — 28 N.Y. St. Rep. 630

Majority

p. 630

Pauline Webber, Resp’t, v. Edward C. Hoag, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

1. Animals—Liability oe owner oe vicious.

Proof that defendant’s dog habitually assailed people on the street, and that defendant had been informed thereof, is sufficient to show knowledge on his part of the vicious nature of the dog.

p. 631

2. Same—Evidence.

In an action for injuries caused by the bite of the dog, evidence that ilaintiff was nervous and would spring from the bed saying: “There isloag’s dog,” is competent as a part of the manifestation of the injury.

3. Same.

Evidence that after the accident the dog was more closely confined is competent.

4 Same.

In such case it is also admissible to combat the allegation that if a mad dog be killed the person bitten cannot have hydrophobia.

Appeal from judgment in favor of plaintiff for $2,720.17, entered on the verdict of a jury.

Action to recover damages for the bite of a dog. Plaintiff was a servant in the employ of one Carpenter, who was a neighbor of defendant.

On the evening of the 12th of January, 1888, she stepped out of the kitchen to get a pail standing outside, when she was attacked by defendant’s mastiff dog, which bit her on the breast and arm. The wounds have not healed, and she still suffers great pain.

The defendant denied that it was his dog that caused the injury.

On the trial evidence of plaintiff’s brother was admitted under objection to the effect that plaintiff had to be watched, and that every five minutes she would jump out of bed saying, “ There is Hoag’s dogalso evidence that she was very nervous; that after the accident the dog was kept closer indoors and out of the streets. A witness was also allowed to testify that persons have hydrophobia as a result of dog bite after the dog is dead.

The court excluded the answer to the question put to a witness, Did he say to you yesterday that he could get you $50 if you would swear a single word in reference to this case ?”

The court, in its charge to the jury, said: “ How, what do you desire? Did this dog bite this girl ? Is that any evidence of a propensity to do mischief ? Do you want any more evidence of savagery than laying hold of ahúman being? If you do, you should say so.”

A. J. Adams, for app’lt; Charles Haines, for resp’t.

The cause of action was fully proven. The plaintiff was a servant with one Carpenter. She went out of the house in the evening to get a pail and the defendant’s dog, without the slightest warning, sprang upon her and bit her. This act is sufficient to stamp the character of the dog as vicious and dangerous, and the master was bound to keep him in subjection without further notice. Brice v. Bauer, 108 N. Y., 428 ; 13 N. Y. State Rep., 765.

There is abundant proof of knowledge upon the part of the owner of the savage nature of the dog.

It was proven that he attacked a driver on an ice wagon. He habitually assailed people on the street near the owner’s premises before plaintiff was bitten. The plaintiff’s employer informed the defendant of this habit of the dog to assail him on his own prem

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ises. The defendant was informed that the dog assailed one Dis-brow and tore his coat. The dog was proven to have attacked one Francis in the road in the presence of the defendant.

The animal must have been a terror in the neighborhood and as dangerous as a wild beast in view of his size and ferocity. The words of the judge were proper as applied to this case if the jury believed the plaintiff’s testimony.

There was no error committed upon the trial. In giving evidence of the nervous terror of the plaintiff her expression as to the presence of “ Hoag’s dog ” was admissible. It did not prove the biting by this dog, but it was a necessary part of the manifestation of plaintiff’s injury. The answer as to the general character of the kind of dog which bit plaintiff was stricken out and the answer of the witness given, therefore, was not objected to.

The evidence as to the treatment of the dog after the bite was proper, as tending to show the character before the same was made. It was proper to combat the allegation that if a mad dog be killed the person bitten cannot have hydrophobia. It was not proper for one witness to testify .as to an offer which another witness said he could get for testimony.

The character of any dog other than defendant’s mastiff Jane, was wholly unimportant.

There are no other exceptions on the trial of importance.

The judgment should be affirmed, with costs.

Pratt, J., concurs.