Brice v. Bauer

• Decision Date: 28 February 1888
• Citation: 108 N.Y. 428,15 N.E. 695
• Parties: BRICE v. BAUER.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 428

15 N.E. 695

BRICE

v.BAUER.¹

Court of Appeals of New York.

February 28, 1888.

Appeal from general term, supreme court, Second department.

This is an appeal from a judgment of the general term of the Second department, affirming a judgment in favor of the plaintiff, Daniel Brice, entered upon the verdict of a jury. The complaint stated that the defendant, Paul Bauer, unlawfully kept a dog, well knowing him to be of a ferocious, mischievous, and vicious disposition, and accustomed to attack and bite mankind; that on the 7th of December, 1883, the dog wrongfully came upon the plaintiff's premises, and there attacked and wounded him. The answer was (1) a general denial; (2) that the plaintiff committed a wanton and malicious assault upon the dog, and whatever the dog did to the plaintiff was by way of and in his own defense. After evidence on both sides, the defendant moved for a nonsuit upon the ground that there was ‘no evidence that the defendant owned the dog, or was in any way responsible for what the dog might have done; no evidence that the dog was vicious; and that there is evidence that the injury the plaintiff sustained was brought about by his own act, interfering on another person's premises in matters he was not requested to interfere in.’ The motion was denied, and, after a charge to which no exception was taken, the jury gave a verdict to the plaintiff.

Jos. S. Ridgway, for appellant.

A. Limis, Jr., for respondent.

DANFORTH, J., ( after stating the facts as above.)

That the plaintiff was very seriously injured by the unprovoked and persistent attack of the dog is not denied. Indeed, no evidence was given, upon the trial, showing or tending to show the slightest foundation for the affirmative defense set up in the answer. It is alleged, however, by the defendant that the evidence failed to show either (1) that the dog was owned or harbored by the defendant, or (2) that the dog was vicious,-accustomed to bite,-or (3) that the defendant had knowledge of such propensities. The last objection was not made at the trial, but, upon all points, we find quite enough evidence in the record to support the conclusion of the court below. The dog was a cross between a mastiff and a bloodhound, or a Newfoundland, in color dark brown or between black and brown, of an unusually large size, solid and heavy, having a short, thick neck, and was in fact very ferocious. He came upon the plaintiff's premises in the evening, attacked and bit certain pigs which were gathered there, and only desisted from doing so when, seeing the plaintiff, he turned upon him, ‘went for his throat,’ which the plaintiff protected by his arms, and in spite of resistance the dog threw him upon the ground, bit him ‘seven times on one arm and five on the other,’ and kept his hold in spite of the plaintiff's struggles and every effort on the part of neighbors, who, hearing the plaintiff's cries, had come to his assistance, until one, having a gun, shot the dog dead as he was making again for the plaintiff's throat. He had before bit the defendant's coachman, one Robinson, and his wife. After he was killed his body was thrown into the street, and was there seen and identified as a dog belonging to the defendant. One witness, a workman employed by defendant, described the dead dog, and, being asked to give the appearance of the dog before that time seen by him at defendant's, said, ‘The same appearance exactly,-the same in color, hair, and size.’ Being asked, ‘You don't know whether it was the same dog or not?’ said: ‘I could not swear positively, but it looked like the same dog.’ The dog he saw at defendant's was at the time chained up in his stable, and being asked whether ‘you know anything about his disposition,’ said: ‘He looked to be vicious to me.’ Another witness speaks of the dog as one once owned by himself, and afterwards ‘around’ defendant's, ‘probably from a year to 15 months.’ Asked: ‘The dog that Mr. Bauer [defendant] had this length of time at his place,-did you previously own him?’ Answered: ‘Yes, sir.’ Asked: ‘What is your best impression as to whether the dog lying in the road was the same dog that was in Mr. Bauer's place?’ Said: ‘I judge it was the same dog, to the best of my belief.’ Asked: ‘How was that dog kept at Mr. Bauer's place; chained?’ Said: ‘When I saw him he was chained up in the yard.’ Again he testified that he saw him in defendant's yard ‘three or four times,’ each time before December, and ‘always chained up.’

The defendant in his own behalf testified that he had not seen the dead dog, but that, while he kept always ‘half a dozen dogs,’ they were always in chains day and night; at night tied out to the buildings, in the day-time in the house; ‘never unchained.’ He, however, said that he did not ‘attend to them personally,’ having in his employ a dozen men; Robinson among others. He had not heard that any of his dogs had been killed or were missing, or that Robinson had been bitten by any dog. Robinson was not called. The evidence of identity was as good as could be expected, and whether it was the dog harbored or owned by the defendant was a question which the jury might reasonably be expected to be able to answer. The defendant was properly...