Jones v. Craddock

• Decision Date: 23 September 1936
• Docket Number: 92.
• Parties: JONES v. CRADDOCK.
• Court: North Carolina Supreme Court

187 S.E. 558

210 N.C. 429

JONES v. CRADDOCK.

No. 92.

Supreme Court of North Carolina

September 23, 1936

Appeal from Superior Court, Buncombe County; McElroy, Judge.

Action by May F. Jones against Mrs. Robert J. Craddock. From a judgment of nonsuit, the plaintiff appeals.

Judgment reversed.

On motion for nonsuit, plaintiff's evidence is to be considered in its most favorable light for plaintiff.

Action for damages for the death of a valuable dog alleged to have been caused by the negligence of the defendant in the operation of an automobile on a street in the city of Asheville, N.C. At the close of plaintiff's evidence defendant's motion for judgment as of nonsuit was sustained, and from judgment dismissing the action, plaintiff appealed.

J. Y Jordan, Jr., of Asheville, for appellant.

Harkins Van Winkle & Walton, of Asheville, for appellee.

DEVIN Justice.

The only question presented by this appeal is whether the court below erred in granting the motion for nonsuit. It therefore becomes necessary to examine the evidence presented in support of plaintiff's action in order to determine whether it was of sufficient probative force to be submitted to the jury. On this motion the evidence is to be considered in its most favorable light for the plaintiff. Teseneer v. Henrietta Mills Co., 209 N.C. 615, 184 S.E. 535.

The plaintiff offered evidence tending to show that she was the owner of a registered pedigreed Sealyham terrier dog answering to the name of "Jimmy Whiskers." That on August 16, 1934, about noon, the dog, with leash attached, escaped from plaintiff's house and ran into the street, the plaintiff and her sister pursuing and calling the dog. There was no traffic on the street. Plaintiff's car was parked against the curb in front of her house. When the plaintiff reached the edge of the sidewalk she saw the defendant's car coming from the south, making a roaring sound, and the dog, 6 feet out in the street, barked at the on-coming car. Plaintiff yelled, "Stop that car, you will kill my dog," defendant's car being then 200 feet away. At the sound of her voice the dog ceased to bark, turned toward his mistress and started in her direction. The dog was then 6 feet and 9 inches from the curb. The street at that point was 43 feet wide and straight. The defendant, without slackening speed, or swerving or making any change in her direction, drove over and killed the dog. Defendant's car barely missed plaintiff's car parked against the curb. Plaintiff testified: "The defendant's car made no effort to stop, or to swerve to the west and avoid striking my dog. I saw no indication that any brakes were applied in an endeavor to stop or swerve to the west and avoid striking my dog. At the time that I first screamed, when defendant's car was at the place I have indicated, there was ample room, and ample opportunity on Montford Avenue where the accident happened, for defendant's car to have swerved and avoided striking my dog. At that point Montford Avenue is 43 feet wide from curb to curb."

While from the earliest times dogs have been the companions of man, for a long period their legal status was of low degree, and it was formerly held they were not property, and hence not the subjects of larceny. But in more recent times this ancient doctrine has given place to the modern view that ordinarily dogs constitute species of property, subject to all the incidents of chattels and valuable domestic animals. Cruelty to a dog is an indictable offense. It is now well settled that an action for negligent injury to a dog is maintainable. 2 A. J., 761-766; Dodson v. Mock, 20 N.C. 282, 32 Am. Dec. 677; Perry v. Phipps, 32 N.C. 259, 51 Am.Dec. 387; Mowery v. Salisbury, 82 N.C. 175; State v. Smith, 156 N.C. 628, 72 S.E. 321, 36 L.R.A. (N.S.) 910; Scott v. Cates, 175 N.C. 336, 95 S.E. 551; Wilcox v. Butt's Drug Stores, 38 N.M. 502, 35 P.2d 978, 94 A.L.R. 726; Citizens' Rapid-Transit Co. v. Dew, 100 Tenn. 317, 45 S.W. 790, 40 L.R.A. 518, 66 Am.St.Rep. 754; Columbus R. Co. v. Woolfolk, 128 Ga. 631, 58 S.E. 152, 10 L.R.A. (N.S.) 1136, 119 Am.St.Rep. 404.

Even in the days of Blackstone, while it was declared that property in a dog was "base property," it was nevertheless asserted that such property was sufficient to maintain a civil action for its loss. 4 Bl.Com. 236.

This is the first instance in which this court has been called upon to consider an action for negligent injury to a dog when it has been run over and killed by an automobile in the street but the established principle is the same as in other...