Plumley v. Birge

• Decision Date: 08 February 1878
• Citation: Plumley v. Birge, 124 Mass. 57 (Mass. 1878)
• Parties: Ellis W. Plumley v. Sidney Birge
• Court: Supreme Judicial Court of Massachusetts

124 Mass. 57

Ellis W. Plumley v. Sidney Birge

Supreme Court of Massachusetts

February 8, 1878

Argued September 25, 1877

Hampden. Tort, under the Gen. Sts. c. 88, § 59, to recover double the amount of the damage sustained from the bite of a dog.

At the trial in the Superior Court, before Brigham, C. J., there was evidence tending to show that the plaintiff, a boy thirteen years old, while upon a narrow foot bridge, which the defendant's dog was about to cross, and which he had a right to cross unmolested, endeavored to prevent him from crossing, by striking at him with a stick about three feet long, which he held in his hand, and that, as the dog came within reach for the purpose of crossing, he struck him over the back with the stick, and thereupon the dog snapped at and bit the plaintiff on the leg, giving a single grip as he passed him. The dog was a large dog, weighing about one hundred pounds.

The judge gave general instructions not excepted to, and, at the plaintiff's request, instructed the jury as follows:

"1. If the plaintiff did strike the dog, and if he thereby did by his own act bring the injury upon himself, he may notwithstanding, recover in this case, if the jury believe the boy acted with such care as under the same circumstances would have ordinarily been exercised by boys of ordinary intelligence and prudence, of his years.

"2. If the plaintiff was old enough to know that striking the dog would be likely to incite the dog to bite, and did strike the dog, and did thereby incite the dog to bite him, he may nevertheless recover, if the jury think he was in the exercise of such care as would be due care in a boy of his years."

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the above rulings.

Exceptions overruled.

H. B Stevens, for the defendant.

M. B. Whitney, (G. M. Stearns with him,) for the plaintiff.

Morton, J. Endicott & Lord, JJ., absent.

OPINION

Morton, J.

This is an action of tort, brought under the Gen. Sts. c. 88, § 59, to recover damages for an injury to the plaintiff, a boy of thirteen years of age, from the bite of a dog kept by the defendant. The only question presented is as to the correctness of two rulings given by the court at the request of the plaintiff. Other instructions were given which were not excepted to, and which we must assume to have been full and accurate. We need consider only the second ruling given, because, if it was correct, it includes and necessarily determines the first.

The second ruling was that "if the plaintiff was old enough to know that striking the dog would be likely to incite the dog to bite, and did strike the dog, and did thereby...