Bachman v. Clark

• Decision Date: 05 April 1916
• Docket Number: 10.
• Citation: 97 A. 440,128 Md. 245
• Parties: BACHMAN v. CLARK.
• Court: Maryland Court of Appeals

97 A. 440

128 Md. 245

BACHMAN v. CLARK.

No. 10.

Court of Appeals of Maryland

April 5, 1916

Appeal from Baltimore City Court; James P. Gorter, Judge.

"To be officially reported."

Action by John L. Clark, infant, by James Clark, his father and next friend, against Anna Bachman. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Isaac Lobe Straus, of Baltimore, for appellant.

Israel B. Brodie, of Baltimore (Harry B. Wolf, of Baltimore, on the brief), for appellee.

PATTISON J.

In this case the infant appellee was attacked and bitten by a dog of the appellant, and suit was brought in the Baltimore city court to recover damages for the personal injuries resulting therefrom. A verdict was rendered in favor of the plaintiff for $200, and a judgment was entered thereon, from which this appeal is taken.

The record discloses that the appellee, John L. Clark, a boy ten years of age, was, at the time of the accident, on May 18 1914, living with his parents on Wilkens avenue in the city of Baltimore. The accident occurred about 8 o'clock in the evening, and when bitten the boy was standing by a post on the north side of Wilkens avenue about a block from his home, and opposite, or nearly opposite, the defendant's house. He was playing with some of his young friends when the dog came across from the defendant's yard, and as he describes it in his testimony, grabbed him by the leg and bit him several times. The accident is probably best described by the witness Johnson, a butcher, residing at Violetsville Baltimore county, who testified:

"That (on the evening of the accident) in walking down Wilkens avenue he saw boys playing on the north side of the street and the dog ran out through a couple of palings in the fence, ran across the street, knocked the plaintiff down jumped on him and was biting him. When witness got there the dog had bitten plaintiff two or three times and then had him by right thigh; plaintiff was lying back on pavement; witness tried to get the dog off by choking her; being unsuccessful, he picked up a scantling and told the plaintiff to take his hands away from the dog's head, and the plaintiff pulled his hands away, and the dog let go, and as she let go she started up to the region of the stomach, and before she got up (to the stomach) he (witness) knocked her over; that a companion of witness picked the plaintiff up and carried him to his house."

And from his home he was carried to St. Agnes Hospital, and subsequently took the Pasteur treatment at the Mercy Hospital. The mother of the plaintiff in her testimony stated that when her son was brought home he was "unconscious," and "was in such a condition that she did not know whether he was living or dead. *** Blood all over him." The dog was spoken of by some of the witnesses as a bulldog, but her owner and others said she was a bull terrier.

Charles Hesterberg, one of the boys who was playing with the plaintiff at the time of the accident, when produced on the part of the defendant testified that he saw the dog when she was running across the street just before the accident, and that she first jumped upon Edward Vogelsang, the grandson of the defendant, "to be petted" as witness said, then quickly jumped on the plaintiff, and when she did so he pushed her off with his elbow when she again jumped on him, and this time he saw the dog biting the boy while lying upon the ground, and continued to bite him until she was struck and killed by the witness Johnson.

At common law, the owner of a dog is not liable for injuries caused by it, unless it has a vicious propensity, and notice of that fact is brought home to him. But when it is once established that the dog is of a vicious nature, and that the person owning or keeping it has knowledge of that fact, the same responsibility attaches to the owner to keep it from doing mischief as the keeper of an animal naturally forocious would be subject to, and proof of negligence on the part of the owner of the dog is unnecessary. 3 C.J. 97. This is the recognized and well-settled law of this state. Goode v. Martin, 57 Md. 606, 40 Am. Rep. 448; Twigg v. Ryland, 62 Md. 380, 50 Am. Rep. 226; Buck v. Brady, 110 Md. 568, 73 A. 277, 132 Am. St. Rep. 459.

At the trial of this case in the court below, the plaintiff offered but one prayer, which was granted. The defendant offered nine prayers. The first four of these were rejected, the others were granted. The rejected prayers asked that the case be taken from the jury; the first for want of legally sufficient evidence, the second for want of such evidence under the pleading, the third for want of legally sufficient evidence of the dog's alleged vicious propensity, and fourth because there was no legally sufficient evidence that the defendant knew that the dog had a vicious propensity.

It must first be shown, in order to render the owner liable for damages to one bitten by his dog, that the dog had a vicious propensity,...