Denison v. Lincoln

• Decision Date: 30 June 1881
• Citation: 131 Mass. 236
• Parties: Nettie L. Denison v. Truman S. Lincoln
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

131 Mass. 236

Nettie L. Denison v. Truman S. Lincoln

Supreme Court of Massachusetts

June 30, 1881

Argued September 21, 1880

Franklin. Tort, under the Gen. Sts. c. 88, § 59, to recover double the amount of the damage alleged to have been caused by the defendant's dog. Trial in the Superior Court, before Allen J., who allowed a bill of exceptions, in substance as follows:

The plaintiff offered evidence tending to show that she was riding with her husband in a carriage drawn by her husband's horse, in October 1878, upon a highway; that the defendant and his dog were in a lot occupied by the defendant; and that the dog bounded furiously down the lot leaped down the bank wall of the lot by the highway into the road, in front of the horse, as though to attack the horse and frightened the horse so that he shied over the opposite bank and upset the carriage and badly injured her. The defendant offered evidence that the dog did not act offensively to the plaintiff or the horse, and did none of the acts mentioned; that nothing occurred or was done by the dog that would naturally cause the horse to shy, or that afforded any excuse or reason for the horse to act as he did that the horse behaved badly and improperly; and that the accident to the plaintiff was caused by the improper and bad conduct of the horse.

The defendant also introduced evidence, which was contradicted by the evidence for the plaintiff, that the horse had shied and run and conducted improperly upon other occasions, and in a way that indicated he was vicious and unmanageable.

The defendant further introduced evidence that the plaintiff stated after the accident that the dog did not attack the horse, and did no more than come down to the bank wall, which was fifteen feet from the road, and put his paws on the wall. It was conceded that the dog did not bark or make any noise or touch the horse or the plaintiff.

The defendant contended that, if the accident was caused by the bad conduct of the horse, or if his bad conduct contributed to the accident, the plaintiff could not recover.

The judge instructed the jury, "that the plaintiff must prove that her injury was caused by some act of the dog directed against or towards the horse, and amounting to an attack or a demonstration of attack upon the horse, such as would naturally cause a horse to shy as this horse did; that such act of the dog must be the sole and proximate cause of the shying of the horse; and that, if the horse had a habit of shying amounting to a vice, and upon this occasion shied by reason of said vicious habit, or if such vicious habit contributed to the accident, the plaintiff could not recover but if the shying of the horse was not by reason of any vicious...