Colby v. Lee

• Decision Date: 01 May 1928
• Citation: 142 A. 115
• Parties: COLBY v. LEE.
• Court: New Hampshire Supreme Court

142 A. 115

COLBY

v. LEE.

Supreme Court of New Hampshire. Merrimack.

May 1, 1928.

Exceptions from Superior Court, Merrimack County; Young, Judge.

Case by Chester A. Colby against Michael J. Lee. Verdict for the plaintiff, and bill of exceptions was allowed. Exceptions overruled.

Case under P. L. c. 150, § 24, to recover double damages for personal injuries caused by the bite of a dog. Trial by jury. Verdict for the plaintiff. A bill of exceptions was allowed.

The defendant seasonably requested the court to charge the jury as follows:

"(1) If the plaintiff, by the exercise of reasonable care, could have avoided injury from the dog, then he cannot recover, and your verdict must be for the defendant."

"(3) If the plaintiff, by the exercise of ordinary care, could have avoided being bitten by the dog, then he cannot recover, and your verdict must be for the defendant."

"(7) If the plaintiff went upon the defendant's premises for the purpose of attacking or provoking the dog, then he would be a trespasser, and he cannot recover for any injuries received while so engaged."

"(10) If the plaintiff attacked the dog when it was not reasonably necessary to protect himself, and in consequence was bitten, then the plaintiff cannot recover."

Except so far as they were embodied in the charge, these requests were denied, and the defendant excepted.

During the argument of plaintiff's counsel, the defendant took exceptions which are stated in the opinion, and at the close of the charge he excepted as follows:

"The defendant excepts to so much of the instructions as tell the jury that the plaintiff may recover, if bitten by the dog, provided the plaintiff did not do any unreasonable act to bring the injury upon himself. We maintain the duty of the plaintiff was to exercise reasonable care under the circumstances, and to exercise reasonable care to avoid injury."

Other facts appear in the opinion.

John M. Stark and David F. Dudley, both of Concord, for plaintiff.

Robert W. Upton and Joseph C. Donovan, both of Concord, for defendant.

BRANCH, J. 1. The first claim of error argued by the defendant is that the charge of the court upon the issue of contributory negligence was inadequate and inconsistent, that it did not clearly submit to the jury the question of the plaintiff's fault, and that the denial of the defendant's requests Nos. 1 and 3 was therefore error.

The subject of contributory fault was touched upon by the presiding justice no less than seven times in the course of his charge. The jurors were told, first, that the keeper of a dog "is liable to one who is injured by such dog if such injury * * * was not brought upon himself by his own unreasonable conduct and could not have been avoided by reasonable or due care." They were next informed that, in order to entitle the plaintiff to a verdict, he must prove that he "did not by any unreasonable act of his bring the injury upon himself." They were then told that one of the questions for them to consider was, "Did the plaintiff negligently bring the injury upon himself?" In a later paragraph, the subject was elaborated as follows:

"The plaintiff was required to do everything which a reasonably prudent person would have done under the same circumstances and existing conditions to avoid injury from the dog. In other words, if he was at fault or to blame, and that fault or blame caused or brought upon him the injuries complained of, he cannot recover. If, on the. other hand, he acted as a reasonable person would have acted under the same circumstances and confronted by the same conditions, he would be free from fault or blame."

Subsequently it was stated that the keeper of a dog "is liable for such injury as the dog does, provided the person injured * * * did not bring the injury upon himself by any unreasonable act on his part." Still later the jury was told that, if they found "that the plaintiff unwisely caused or brought the injury upon himself," their verdict should be for the defendant; and finally, by way of summary, the court included among the facts which must be proved to entitle the plaintiff to a verdict, the following: "That the plaintiff did not cause or bring the injury upon himself."

The foregoing instructions plainly included accurate statements of the law. The full paragraph above quoted, standing alone, gave a correct exposition of the principle of contributory negligence which was entirely adequate for this case. In fact, the defendant admits that "the correct rule of law was stated twice in the course of the instructions." Therefore, although it may be conceded that the abovementioned requests were also accurate statements of the law (Quimby v. Woodbury, 63 N. H. 370), their denial was not error. The presiding justice had the privilege of choosing his own language. State v. Mannion, 82 N. H. 518, 526, 136 A. 358; Romani v. Railroad, 81 N. H. 206, 209,123 A. 233. It follows that the present claim of error must be overruled, unless the charge, in addition to its correct statements of law, contained inaccuracies of such a character that the jury might have been misled, to which exception was specifically taken. West v. Railroad, 81 N. H. 522, 129 A. 768, 42 A. L. R. 176.

The only ground upon which the defendant excepted to the charge was that it permitted the jury to find for the plaintiff, "provided the plaintiff did not do any unreasonable act to bring the injury upon himself." The contention therefore must be that the charge was misleading because the word "unreasonable" was three times used in connection with "acts" and "conduct" instead of the word "negligent." Since the idea of reasonable conduct under a given set of circumstances underlies the legal conceptions of due care and negligence, and since the duty of the plaintiff to act as a reasonably prudent man was correctly stated to the jury, the impropriety of using the familiar word "unreasonable" instead of the legal adjective "negligent" when describing conduct which would bar recovery is not apparent, nor has it been pointed out by counsel how the jury could have been misled by it. Since negligent conduct is, by its definition, unreasonable conduct under the circumstances, it follows that all negligent conduct is unreasonable, and hence all negligent conduct was included within the terms "unreasonable acts" and "unreasonable conduct" which were used by the court. If it is not conversely true that all unreasonable conduct is negligent, then it was the plaintiff and not the defendant who suffered by the use of the word "unreasonable" in the charge, since this is the more inclusive term, and the jury was told that any unreasonable conduct on the part of the plaintiff would bar a recovery. It follows that the charge, if possibly inaccurate in its phraseology, was sufficiently favorable to the defendant, and the exception must be overruled. Parkinson v. Railroad, 61 N. H. 416.

2. The defendant's second assignment of error is that the court wrongfully denied his requests numbered 7 and 10. He argues that the charge contains no adequate instructions with reference to his claims that the plaintiff was engaged in a trespass at the time of his injury, first, because he made an unjustified attack upon the dog; and, second, because he went upon the defendant's premises for this purpose. He asserts that the denial of his seventh request in particular "took from the defendant an important part of his defense almost as effectively as if the issue had been wholly withdrawn from the jury."

There is no substantial basis for these criticisms of the charge. The jury was told no less than four times, in the language of the statute, that the plaintiff could not recover if, at the time of his injury, he was "engaged in the commission of a trespass or other tort" (P. L. c. 150, § 23), and similar expressions were twice used in other parts of the charge. The meaning of the word "trespass" was thus explained:

"By trespass we mean any illegal or unlawful interference with the property of another. A reasonable use of the highway, including the sidewalks thereon does not render one a trespasser. Neither would one become a trespasser' who uses or attempts to use a walkway to another's building or premises, if the use or attempted use was for a lawful purpose, and made in a lawful reasonable manner, under reasonable circumstances."

With reference to the...