Todd v. Danner

• Decision Date: 08 April 1897
• Docket Number: 2,138
• Citation: 46 N.E. 829,17 Ind.App. 368
• Parties: TODD v. DANNER
• Court: Indiana Appellate Court

46 N.E. 829

17 Ind.App. 368

TODD v. DANNER

No. 2,138

Court of Appeals of Indiana

April 8, 1897

From the Switzerland Circuit Court.

Reversed.

W. R Johnston, Frank B. Shutts and Geo. S. Pleasants, for appellant.

F. M Griffith and Vanosdol & Francisco, for appellee.

OPINION

ROBINSON, J.

Appellee seeks to recover damages for personal injuries sustained by reason of appellant's alleged negligence. Upon issue joined by the general denial, a verdict was returned by the jury in appellee's favor for $ 1,200.00 for which sum judgment was rendered over appellant's motion for a new trial.

The overruling of the motion for a new trial is the only error assigned.

The reasons for which a new trial was asked were that the verdict is not sustained by sufficient evidence and is contrary to law, and for error of the court in refusing to give instructions one, two, three, five, six, seven, eight, and nine, requested by defendant. Counsel for appellant, in their brief, have argued only the court's refusal to give the instructions asked.

The complaint avers that, on the 1st day of June, 1893, the appellant was the owner of a large steer, which was of dangerous and vicious disposition, hooking and attacking men and animals; all of which the appellant at the time well knew; that without disclosing, or in any manner informing appellee of the dangerous and vicious disposition of said steer to attack and injure mankind and animals, and appellee being ignorant thereof, appellant placed the steer in appellee's care and with appellant's consent turned the steer at large in appellee's pasture with appellee's cows and horses and near to appellee's residence; that while the steer was in appellee's pasture, without notice or knowledge of his dangerous disposition, and without any fault or negligence on appellee's part, appellee was attacked by the steer and severely injured.

To entitle the appellee to a verdict, he must aver in his complaint and prove the negligence of the appellant, and his own freedom from any negligence which proximately contributed to the injury. A failure in either of these particulars will defeat his right to a recovery. These principles are so well settled that the citation of authorities is unnecessary. Appellant had the right to have the jury fully instructed on this subject, and the only question here is whether that was done.

No exception was taken to any of the instructions given by the court, and they cannot be considered by us, except in so far as they do or do not, as a whole, state the law of the case and fail to cover any particular branch of the case upon which an instruction was asked by appellant.

The court gave the jury instructions one and two, requested by appellee, as follows:

"1. In order to charge the defendant with knowledge of the vicious propensities of the animal to attack mankind, it is not necessary that he have notice that the animal has frequently 'broken through the tameness of his nature' into acts of aggression on man, or upon animals in the dominion and ownership of man. It is unnecessary to prove more than that the owner has good cause for supposing that the animal may so conduct itself. And if the jury find from the evidence in this case that the animal in question before the injury complained of made a vicious lunge or attack upon Samuel Vaughn or Thomas Richtor, or either of them, in the presence of the defendant, then, upon such facts, if established, you would be authorized to find that the defendant had knowledge of the vicious propensities of said animal to attack mankind, although he may not have had knowledge of attacks of said animal upon other persons.

"2. If you find the plaintiff is entitled to damages, in estimating the sum, you may take into consideration his occupation, habits of industry, health, and prospects of life at the time he received the injury, governed by ordinary human knowledge and experience, as to the age he would likely have remained capable of labor, also, the expenses incurred by him for medical attendance, nursing, loss of time, incapacity for labor, after the injury, and pain and suffering sustained by him consequent upon such injury, if, in your judgment the same is warranted by the evidence. You should look to the nature and extent of the injury inflicted, whether temporary or permanent, the circumstances under which it was inflicted, and then determine from the evidence what is just and proper under all the circumstances in evidence."

Also the following instruction requested by appellant:

"4. The want of ordinary care and prudence on the part of a person injured, contributing directly and approximately to the injury complained of, is contributory negligence."

The court of its own motion gave the following instructions:

"The complaint in this case is in two paragraphs. It is not claimed, however, that there were or are two separate causes of action. But the same cause of action is stated in somewhat different language. The defendant has filed as his answer the general denial which puts in issue the material allegations of the complaint. To recover on either paragraph of the complaint it must appear from the plaintiff's evidence that the defendant owned the animal mentioned in the complaint, that such animal was vicious and dangerous as alleged, that the defendant had knowledge of the character of such animal and that the plaintiff did not know of such vicious character. It must also appear that the injury to the plaintiff did not result from his own contributory negligence. If you find for the plaintiff you will award him such damages as, judging from the evidence you may think he has sustained. If you find for the...