Brewer v. Furtwangler, 24355.

• Decision Date: 08 February 1933
• Docket Number: 24355.
• Parties: BREWER v. FURTWANGLER et ux.
• Court: Washington Supreme Court

18 P.2d 837

171 Wash. 617

BREWER v. FURTWANGLER et ux.

No. 24355.

Supreme Court of Washington

February 8, 1933

Department 1.

Appeal from Superior Court, King County; John A. Frater, Judge.

Action by Florence Brewer against Albert Furtwangler and wife. Judgment for plaintiff, and defendants appeal.

Affirmed.

Shorett Shorett & Taylor and Bausman, Oldham, Cohen & Jarvis, all of Seattle, for appellants.

Ryan Desmond & Ryan and Howard W. Sanders, all of Seattle, for respondent.

MILLARD J.

While an unintentional trespasser upon the defendants' land plaintiff was attacked and seriously injured by a vicious dog owned by the defendants. This action was instituted to recover for the personal injuries sustained by the plaintiff. The trial of the cause to a jury resulted in a verdict for $2,600, which was reduced by the trial court to $1,800, in favor of the plaintiff. From judgment on the reduced verdict the defendants have appealed.

Appellants admit that the dog was vicious, and that they knew the dog was vicious. They concede the correctness of the instructions given, and that the judgment, as reduced, is not excessive for the injuries sustained. Appellants' sole contention is that the trial court erred in not granting the motion for judgment notwithstanding the verdict. It is argued that respondent's contributory negligence (trespassing on the land of the appellants at the time of the dog's attack) bars recovery by her.

The accident occurred in the daytime February 3, 1931, in an industrial area of Seattle. Respondent operated a boarding house in Georgetown. Appellants resided at the northeast corner of Brandon and Utah streets, a few blocks west of respondent's boarding house. The course of Brandon street is east and west. Utah street intersects Brandon street at right angles, is one block west of First Avenue South and one block east of East Marginal way. The scene of the attack was the appellants' property on the southwest corner of Brandon and Utah streets, where the offending dog was kept. On the north side of Brandon street was a dirt road and a similar dirt roadway down the middle of Utah street. It appears that both streets were ungraded. There was testimony that the south portion of Brandon street was not used for travel. A defined roadway extended from the intersection of Utah and Brandon streets in a southwesterly direction onto appellants' property at the southwest corner of the intersection.

Appellants testified that, on entering their property by this road, one could not help but see a galvanized iron sign on top of a corner post, carrying the warning 'Beware of the dog.' Respondent testified, as did another person who was bitten some years previously by the dog, she never saw the sign. Appellants and their son were not in accord, by a number of years, as to the length of time the sign was on the post. The verdict reflects acceptance, by the jury, as true the testimony of the respondent that she did not see the sign, or that no sign was there. Entering on the appellants' land by this roadway, one passes a garden patch on his left, inclosed by a board fence. After passing that garden, the road dwindles out, opening into a yard or court. Within this open area--it is partly inclosed on the south by the appellants' barn and on the west by their garage, but is not fenced on the north, or east of the barn, or south of the garden patch--the appellants kept a watchdog, a vicious dog. The dog was securely fastened to a steel chain twenty-four feet in length, which permitted the dog to reach the door of the barn and the door of the garage. It was not possible for the dog to get off of appellants' land. Entering this tract of land of appellants by the roadway extending from the southwest corner of the intersection of Utah and Brandon streets in a southwesterly direction, one had to travel a distance of seventy-six feet out into the middle of the uninclosed area to come within the dog's radius of travel. Appellants testified that on the garage in plain view were two signs: One warns, 'Beware of the dog,' and the other, 'Keep out.' Respondent never saw those signs, so she testified.

On the day of the accident, the respondent departed from her home with the intention of visiting appellant wife, and also to go to a manufacturing plant, then commencing construction on East Marginal way about one block west and four blocks north of the appellants' residence, which was situated just north of the northeast corner of Brandon and Utah streets. No one was at the appellants' home when the respondent called. She then went back to the intersection of Brandon and Utah streets. Respondent did not go on the north side of Brandon street to reach East Marginal way. That road was muddy. Instead, she followed a fork of the road to the south, the private road of the appellants which entered their property from the southwest corner of the intersection and coursed in a southwesterly direction. Respondent testified that she took the dry road without knowledge that it was a private road. She did not see anything to indicate that it was a private road. She did not see any signs warning her to beware of a dog. She did not know a dog was on the premises. She walked down this private road a distance of approximately seventy-six feet into the open area described above. She became confused when she discovered she could not continue the way she started. She stopped, probably wandered around a bit in her confusion and her endeavor to get her bearings, faced the east, and was attacked by the dog.

The terms 'negligence' and 'contributory negligence' are employed, for convenience and not in a strictly legal sense, in actions of the class in which the case at bar falls. The ground of liability in an action for injuries caused by a vicious dog is not negligence in the ordinary sense, hence, in its ordinary meaning, contributory negligence is not a defense. 1 R. C. L. § 65, p. 1122. Upon one who keeps, with knowledge, a vicious dog,...