Davis v. Williams

• Decision Date: 26 April 1892
• Docket Number: 464
• Parties: DAVIS v. WILLIAMS
• Court: Indiana Appellate Court

31 N.E. 204

4 Ind.App. 487

DAVIS v. WILLIAMS

No. 464

Court of Appeals of Indiana

April 26, 1892

From the Clark Circuit Court.

Judgment reversed.

M. Z Stannard, for appellant.

L. A Douglass, for appellee.

OPINION

REINHARD, J.

On the night of April 30, 1879, as the appellee was returning in a conveyance from the city of Jeffersonville, along the public highway running through the town of Clarksville to her home in said town, her horse became frightened at the carcass of a large Newfoundland dog belonging to the appellant and lying on the side of the highway, and suddenly leaping to one side the horse fell into a ditch, turning the buggy over and throwing the appellee to the ground and severely injuring her and killing itself. For the injury to herself the appellee brought this action in the court below where, by a jury trial, she recovered damages in the sum of $ 200. The appellant's motion for a new trial having been overruled she appeals to this court, and urges upon our consideration among other alleged errors, the insufficiency of the evidence.

The evidence showed that the dog died in the appellant's cellar on the night previous to that of the injury, and that, immediately after its death, the appellant's two sons carted the carcass of the animal to a place in the rear of the State's prison, known or designated as the large commons, in the city of Jeffersonville, and there placed it within an enclosure that had been used by the prison authorities as a pig pen. Later in the same night three boys, whose names it is not necessary to set out here, passed by the enclosure, discovered the carcass of the dog, and carried it away and put it upon the front doorstep of James Watson, the appellant's nearest neighbor, "in order to practice a joke on Watson," as one of them testified. When at 6 o'clock the next morning Watson found the dog upon his doorstep, he threw it into the highway in front of his house. Between 7 and 9 o'clock that morning appellant was informed by Watson that he had found the carcass of his dog upon his doorstep and had thrown it in the street in front of his (Watson's) premises. Appellant being busily engaged with his work as foreman of the car works, took no steps to remove the dead animal until 5 o'clock that evening, after he had stopped his day's work. At that time he made search for the dog at the place where appellant had told him it was, but, failing to find it there, he concluded it had been buried and abandoned the search. During the day the carcass had been removed by some boys (others than those who had placed it on the appellant's doorstep) down the roadside some distance, where they dug a hole and placed the dog within it. As to the depth or size of this hole, or whether the carcass was still in the same when the accident happened, the evidence is not clear. Assuming that the dead animal was lying upon top of the ground, the evidence further discloses that about an hour before the injury the appellee, on her way to Jeffersonville, drove past the place where the dog was lying, and she testified that her horse shied at its sight, which attracted her attention, and that she then noticed it lying there. Having finished her errand in Jeffersonville, she started to return home to Clarksville, it being then about dark. When the horse came to where the dog lay it was frightened, and hence the accident first above mentioned.

This was the evidence, in substance. We are of opinion that it does not make a case against the appellant. The theory upon which the action is predicated is that of negligence, and hence before there can be any recovery there must be some evidence that the defendant, or those for whose conduct he is accountable, was guilty of some negligent act to which the injury may be directly traced. There is not the slightest evidence of this in the case at bar. The contention of the appellee's counsel is that the placing of the dead animal in the enclosure aforesaid was the establishment of a nuisance. There is, however, no evidence from which the jury could infer that, for the time being at least, this was not a proper place for the dog to remain until it could be buried or otherwise disposed of. As the burden was upon the appellee to prove negligence she should have introduced some testimony upon this subject, at least.

But if it be conceded that the act of depositing the carcass of the animal in such a place might be taken as...