Fake v. Addicks

• Decision Date: 12 December 1890
• Citation: 47 N.W. 450,45 Minn. 37
• Parties: FAKE v ADDICKS.
• Court: Minnesota Supreme Court

45 Minn. 37

47 N.W. 450

FAKEvADDICKS.

Supreme Court of Minnesota.

Dec. 12, 1890.

(Syllabus by the Court.)

1. In an action to recover damages for an injury caused by a vicious and dangerous domestic animal, owned and kept by the defendant, the gravamen is the neglect of the latter to restrain such animal after notice of its vicious propensity. The notice thereof must be such as to put a prudent man on his guard.

2. Upon the question of notice in connection with other evidence tending to prove the same, and that other persons had been previously attacked or injured by the animal, it may be shown that the fact of its savage disposition or propensity was notorious in the neighborhood where the owner has kept it.

3. Where a person voluntarily provokes a vicious animal, and thus invites or induces the injury, knowing the consequences, he is not entitled to recover; but an accidental interference with him, (as where a person inadvertently steps upon a dog,) which interference or provocation arouses and becomes merely the occasion for the exhibition of such propensity, will constitute no defense.

Appeal from district court, Wright county; SMITH, Judge.

Eaton & Cutting, for appellant.

Wm. E. Culkin and J. T. Alley, for respondent.

VANDERBURGH, J.

The plaintiff was bitten and injured by a dog alleged to be dangerous and accustomed to bite mankind, and kept and owned by defendant, with knowledge of his vicious propensities. There was sufficient evidence to prove his vicious disposition, and that it was not safe to permit him to be at large. The testimony in plaintiff's behalf was sufficient to show that the dog had attacked and bitten, or attempted to bite, several persons before the injury complained of. There was also evidence enough to support the verdict that the defendant had notice sufficient to warn him of his duty to kill or confine the animal. The defendant's brother testifies that in 1887, before the mischief complained of, he was bitten by the dog, while passing through defendant's yard, and that defendant saw it. Defendant had owned and kept this dog between two and three years. One of his own witnesses states that he “was cross, ugly, and vicious;” and there is evidence tending to show that he had, on several occasions, attacked persons in defendant's yard, or going past his house, to the knowledge of members of the family. Upon the question of scienter, evidence was also admitted of the general repute in the neighborhood of the vicious nature of the dog. If one keeps upon his premises a dog which has attacked or bitten a considerable number of persons coming upon or passing by them, and is notoriously cross and vicious, it may safely be assumed that the owner has some knowledge of the fact. The evidence of general repute is, in such cases, received, not to prove the particular fact of the dangerous propensity of the animal, but the public notoriety, and as tending to support the inference of knowledge on the part of the owner, of such propensity; and for such purpose it was received, in this instance, in connection with other evidence on the subject. The court was sufficiently guarded in its instructions to the jury on this branch of the case, and we think there was no error in permitting it to go to the jury. Jones v. Parry, 2 Esp. 482; 1 Greenl. Ev. § 101; Meier v. Shrunk, 44 N. W. Rep. 209;Murray v. Young, 12 Bush, 337;Keenan v. Hayden, 39 Wis. 558.

The gravamen of the action is the neglect of the owner of an animal known by him to be vicious and liable to attack and injure people, to restrain him so as to prevent the risk of damage; and the notice of such propensity must be such as to put a prudent man on his guard.

At the time of the injury complained of the plaintiff and defendant, who had his dog with him, were present on the premises of a neighbor, who was engaged in threshing his grain. In the afternoon the plaintiff got into a...