Twigg v. Ryland

• Decision Date: 19 June 1884
• Citation: 62 Md. 380
• Parties: MARY E. TWIGG, and JESSE TWIGG, her husband v. ANDREW J. RYLAND.
• Court: Maryland Court of Appeals

62 Md. 380

MARY E. TWIGG, and JESSE TWIGG, her husband v. ANDREW J. RYLAND.

Court of Appeals of Maryland

June 19, 1884

APPEAL from the Circuit Court for Washington County.

The case is stated in the opinion of the Court.

First Exception.--Stated in the opinion of the Court.

Second Exception.--The plaintiffs prayed the Court to instruct the jury as follows:

1. That if the jury believe from the evidence in the cause, that Andrew J. Ryland, the defendant, owned or kept on his premises, in the City of Cumberland, Md., a certain dog, and shall further find that said dog attacked and inflicted the injuries upon Mary E. Twigg, as testified to, and detailed by the witnesses in the cause, then the plaintiffs are entitled to recover such proper damages as the jury may consider commensurate to the injuries thereby inflicted and sustained provided they shall further find, that the said dog was of a ferocious disposition, and known to be so to the defendant either of his own knowledge, or by having notice of the fact communicated to him by others, before the injury to the plaintiff.

2. That in passing upon the question of knowledge of the defendant of the vicious character of the dog, the jury may find that the defendant had such knowledge, if they believe that he knew or was notified, prior to the attack on said Mary, if they find such attack, of one or more attacks by said dog on other persons.

3. That in passing upon the question of the ferocious disposition of the dog referred to in the first prayer, it is competent for the jury to take into consideration the place and manner of the attack he made upon Mary E. Twigg, if they shall believe he made said attack; and further, that it is not necessary that the jury shall find that the said dog had actually bitten any one before he attacked the said Mary, or that any actual injury had ever been committed by him; provided they find that he had evinced a savage disposition by attempting to bite or injure persons.

4. That if the jury believe from the evidence in the cause, that Lloyd Burgee was in the employ of the defendant as driver of his delivery wagons, and for the purpose of attending to things generally in and about his slaughter-yard, and that the said Burgee had or was allowed to assume the general management of the dog referred to in the plaintiffs' first prayer; and if they further believe, that the said Burgee knew or had knowledge of the ferocious habits and vicious propensities of said dog, then said knowledge on his part is evidence from which the jury may infer knowledge of said habits on the part of the defendant.

5. That if the jury shall believe from the evidence that Lloyd Burgee was in the employ of the defendant before and at the time the plaintiff, Mary E. Twigg, received the injury testified to by the witnesses, and that his duties were to help at the defendant's slaughter house in the killing of cattle, &c., and to drive the defendant's delivery wagon, and to be generally useful about the premises of the defendant, and that the dog in question was generally with the said Burgee at the slaughter house, or with him when driving the wagon, or on the street, and that the dog was kept at the slaughter house by the defendant to watch and guard the defendant's premises and property, and that the said Burgee knew before the plaintiff, Mary E. Twigg, was injured by said dog, if they find she was injured by said dog, that said dog was a vicious and dangerous dog, the presumption of law, as against the defendant, is, that he, the defendant, knew that the dog was of a vicious, dangerous disposition.

6. That if the jury shall find a verdict for the plaintiffs, then they, in estimating the damages, are to consider the health and condition of the said Mary, before the injuries complained of, as compared with her present condition, in consequence of the said injuries, and whether they are in their nature permanent, and how far they are calculated to disable her from engaging in those business pursuits, for which, in the absence of such injuries, she would have been qualified, and also the physical and mental suffering to which she has been subjected by reason of said injuries, and to allow such damages as in their opinion will be a fair and just compensation for such injuries.

7. That there is no such sufficient evidence in this cause to show that the plaintiff, Mary E. Twigg, contributed by her own negligence to the bringing about of the injury complained of, as will constitute a defence to this action.

The defendant offered six prayers, of which the following were granted:

1. In order to enable the plaintiffs to recover in this action, they must satisfy the jury, first, that the dog which injured Mrs. Twigg, was the property of the defendant, or under his control and management, or that the duty of keeping said dog had been assumed by him; secondly, that the dog was of a ferocious and vicious disposition; and thirdly, that his ferocious and vicious disposition was known to the defendant prior to the injury complained of. And unless the jury find each and all of these propositions in the affirmative, their verdict must be for the defendant.

3. If the jury find that the injury complained of in the plaintiffs' declaration, was done on the premises of Mrs. Twigg, and not on the premises of the defendant, and that her premises, and those of the defendant are half a mile apart in the City of Cumberland, and that Mrs. Twigg knew or believed that the dog was of a vicious disposition, (if the jury believe he was a vicious dog,) and with that knowledge or belief, had the dog with and about her on many occasions, both on the streets of Cumberland, and at her own house, and had enticed said dog to follow her and visit her own house, without the knowledge of the defendant, and that, at the time of said injury, the dog was at her house, because he had been encouraged and enticed to visit said house by the plaintiff and without the knowledge of the defendant, then the defendant is not responsible for the injury done to Mrs. Twigg by the dog, and the plaintiffs cannot recover in this action.

4. That if the jury believe from the evidence in the cause, that the dog which committed the injury complained of in this case, was at the time the exclusive property of Norman B. Ryland, the defendant's son, and that said Norman had owned its mother, and had raised said dog from a pup, and that said Norman had sole charge, custody and control of said dog, and that the defendant never had the custody, care or control of said dog; and that said Norman was, at the time, above the age of twenty-one years, and was in no manner under the control of, or subject to, the defendant, and that the injury complained of occurred off the premises of the defendant, and upon the premises of the plaintiff, Mary E. Twigg, a half mile apart, that then the defendant is not liable in this action, and the plaintiffs cannot recover, although they may find that the defendant allowed said dog to be kept by his son on or about his premises.

The Court, (SYESTER and HOFFMAN, J.,) granted the first, second, third and sixth prayers of the plaintiffs, and rejected their fourth, fifth and seventh. It granted the defendant's first, third and fourth prayers, and refused his second, fifth and sixth. The plaintiffs excepted, and the verdict and judgment being for the defendant, they appealed.

The cause was argued before ALVEY, C.J., STONE, MILLER, ROBINSON, IRVING, and BRYAN, J.

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