Plumley v. Birge
Decision Date | 08 February 1878 |
Parties | Ellis W. Plumley v. Sidney Birge |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
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:
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.
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...
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