Sherfey v. Bartley

• Decision Date: 30 September 1856
• Parties: SAMUEL SHERFEY v. ROBERT BARTLEY AND WIFE.
• Court: Tennessee Supreme Court

36 Tenn. 58

SAMUEL SHERFEY

v.ROBERT BARTLEY AND WIFE.

Supreme Court of Tennessee.

September Term, 1856.

FROM GREENE.

This was an action commenced before a justice of the peace of Greene county by Bartley and wife against Sherfey, to recover damages for injuries sustained by Mrs. Bartley from the bite of a dog owned by the defendant, and suffered to go at large by him, with knowledge of his vicious propensities. There was judgment before the justice for the plaintiffs, and an appeal to the circuit court by defendant. It seems that, at the time of the injury, Mrs. Bartlett was gathering wild berries in the field of defendant, one-fourth of a mile from his house; and the court, Judge Patterson presiding, charged the jury that, although the injured party was at the time of the injury a trespasser, and liable to an action on the part of the defendant, yet this constituted no defence to the present action; that if the defendant, knowing that the dog was dangerous, suffered him to go at large, and, while thus at large, he bit the plaintiff, the defendant was liable in damages. At the October term, 1855, there was verdict and judgment for the plaintiffs for $25; from which defendant appealed in error to this court.

Britton and Arnold, for the plaintiff in error; Wm. Hawkins, for the defendants in error.

Harris, J., delivered the opinion of the court.

This action was commenced by the defendants in error before a justice of the peace of Greene county, for injuries inflicted upon the plaintiff, Phoebe, by a vicious dog of the defendant, Sherfey. The justice gave judgment for the plaintiff for $25 damages, and the defendant removed the cause into the circuit court of Greene county by appeal, where the justice's judgment was affirmed, and the defendant has appealed in error to this court.

The proof shows that the defendant's dog bit Mrs. Bartley in an old field of the defendant, where she was gathering berries, about one-fourth of a mile from the house of defendant; and that if defendant had not driven off the dog, he might have killed her; that there was corn growing in that portion of the field near the house of defendant, and that the neighbors were in the habit of going to the field to pick berries. Several witnesses state that the dog had attacked them on the road, and, on one occasion, as far as a mile from the house of his owner. Witness Russell stated that in the spring of 1853 (more than a year before the plaintiff was bitten) defendant told him “that his dog would sometimes bite, and for him to be careful how he came about his premises.” The proof shows that the damage sustained by the plaintiff was at least $25. Upon this state of facts, the court instructed the jury “that, in order to recover in this case, the plaintiff must...