Warrick v. Farley
| Decision Date | 13 March 1914 |
| Docket Number | 17,523 |
| Citation | 145 N.W. 1020,95 Neb. 565 |
| Parties | MYRL A. WARRICK, APPELLEE, v. WILLIAM I. FARLEY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Hamilton county: GEORGE F CORCORAN, JUDGE. Reversed.
REVERSED.
Hainer Craft & Aylsworth and John A. Whitmore, for appellant.
J. H Grosvenor and W. A. Prince, contra.
HAMER, J. ROSE and SEDGWICK, JJ., not sitting. FAWCETT, J., concurring.
The plaintiff, Myrl A. Warrick, recovered a judgment against the defendant, William I. Farley, in the district court for Hamilton county, for damages by reason of an injury sustained through the bite of defendant's dog. The defendant appeals.
The defendant objects that the verdict is not sustained by sufficient evidence. This involves a consideration of the disposition of the dog, whether to bite mankind, and whether the defendant knew or had reason to believe that his dog had such a disposition. We have read the evidence. It appears that the defendant owned a bulldog. The plaintiff owned a coach dog. The plaintiff seems to have been standing on the sidewalk in front of a drug store in the city of Aurora, and was talking with a gentleman named Elmore. He had with him his coach dog. The daughter of the defendant came along, and the defendant's bulldog was with her. The defendant's dog seems to have attacked the plaintiff's dog, and the plaintiff separated the dogs and put his dog in the drug store. Shortly afterwards the defendant's daughter returned, and she was accompanied by the defendant's dog. Immediately there was a resumption of hostilities between the two dogs. In trying to separate the dogs the plaintiff was severely bitten by the defendant's dog. The defendant set up the defense that his dog was gentle, and that he himself had no knowledge of the fact that he was inclined to bite any person. He also claimed that the dog was accustomed to play with his own children and the children of the neighborhood; that he was of a gentle disposition; and there is much testimony tending to show that fact, although it is not claimed that he did not fight other dogs. He would perhaps have been an unnatural bulldog if he had not had some fights with other dogs. It is also claimed that the plaintiff was negligent in the manner in which he handled the dogs when he undertook to separate them, and that his injury occurred because of such negligence in handling and attempting to separate two infuriated, fighting dogs then in a fight.
It is to be considered (1) whether the defendant's dog had a propensity to bite mankind; and (2) whether the defendant had notice of such propensity.
John Powell, chief of police, knew the defendant's dog, and had seen him on the streets with the Farley children, Alice and John. He gave his opinion that he did not think that the dog was a very bad dog. Robert Mitchel, the night watch, testified that he had not noticed anything wrong with the dog in its conduct toward persons. Mrs. Steenburg testified that she saw the dog every day; that the dog played with the Farley children, with Blanche McKey, Thomas Peterson, with the Williamson children, the Haughey girls, Arthur Ronin, and her own boys. She saw the boys pick the dog up by his feet and handle him in a very rough manner, and he did not get angry at this. He seems to have been willing to endure almost any amount of rough treatment at the hands of these children. Mrs. Haughey, the wife of Dr. Haughey, testified that she knew the Farley dog; she saw him; and that her children played with the dog, especially the youngest girl, who was about 12 years old; she also saw the Williamson children, Thomas Peterson, and Dr. Steenburg's boys playing with the dog. They would run and hide, and the dog would hunt them. Mrs. Williamson testified as to the gentleness of the dog and its daily companionship with the children. Her children were seven, nine and eleven years old. She knew that the dog was always gentle with these children. Walter Boyd testified that the dog was with his brother-in-law's little boy, a little fellow three years of age, and that the dog and the child would play in the house. Mr. Ronin testified that the dog was the companion of his little grandson and other neighborhood little children. He had seen the dog on his porch and in his yard playing with his little grandson and other little children. The grandson was seven years old. George Verbeck testified that he had observed the Farley children and other children playing with this dog; that he had seen him a great many times with other children than the Farley children. The children and the dog would chase each other about the place. He never saw the dog show his teeth, growl, or show any tendency to bite anybody. He appears to have been the pet and companion of the children of the neighborhood.
The defendant's daughter testified that she had seen many children, ranging in age from four to twelve years, play with the dog; that they would tie a rope on his collar, and the dog would pull them on roller skates in front of the house; sometimes they would roll over him; at other times they would tie a handkerchief around his nose and watch him get it off with his paw. They also fed him candy. The defendant's wife testified to the same facts. The defendant's testimony is along the same line. He had seen the children tie his feet together with a handkerchief or a string. He had seen them tie a handkerchief about the dog's nose. Mr. Serf testified that he frequently saw the dog, and that when he went by the house the dog would come out in a friendly way. He frequently went by the Farley home and often in the nighttime. The dog was always friendly. He would come out and walk a little ways with the witness. Lewis G. Bald testified that the dog was unusually friendly. He testified to meeting the dog and petting him, and that the dog went with him. He often saw the dog play with the children. R. Y. Barnes, who had formerly been the city marshal, testified that for two years he had passed the Farley residence as often as at least twice a day, and sometimes four times a day, and that he always found the dog playful and friendly. He described the dog as a very pretty dog, and clean and nice, and he would speak to him and pet him. He had never seen any tendency on the part of the dog to attack any person.
The evidence shows conclusively that the dog was generally of an amiable disposition, and that he played with the children in the neighborhood. The evidence would seem to indicate that there was no reason to apprehend danger from this dog under ordinary circumstances. That he would fight dogs was, perhaps, natural for a bulldog--perhaps for most breeds of dogs.
W. J. Elmore, a witness for the plaintiff, testified that Mr. Warrick separated the dogs when the defendant's dog first came by, and put his coach dog in the drug store; that the defendant's dog went on down the street; that there was a little girl with the dog. Presently the little girl came back. By that time the coach dog was out of the drug store, and the bulldog came by. "
Glenn Mason, witness on the part of the defendant, testified:
Luther French, a witness for the plaintiff, testified: "Mr Warrick stepped out of the way, and Mr. Farley's dog had hold of Mr. Warrick's dog about the shoulders or neck; and Mr. Warrick...
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