Whittet v. Bertsch
| Decision Date | 12 April 1910 |
| Docket Number | No. 4920.,4920. |
| Parties | WHITTET v. BERTSCH. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.
Trespass by Ada Whittet against Christian M. Bertsch. There was a verdict for plaintiff, and defendant excepted. Exceptions overruled, and case remitted, with directions to enter judgment on verdict.
George J. Sheehan, of Providence, for plaintiff. Daniel P. Macdonald, of Providence, for defendant.
This is an action of trespass brought by the plaintiff against the defendant to recover damages for injuries resulting from the bite of a dog.
The suit is brought under section 3 of chapter 135, General Laws of Rhode Island, which provides that:
"If any dog * * * shall assault or bite, or otherwise injure, any person while traveling the highway or out of the inclosure of the owner or keeper of such dog, the owner or keeper of such log shall be liable to the person aggrieved as aforesaid, for all damages sustained * * * and it shall not be necessary, in order to sustain any such action, to prove that the owner or keeper of such dog knew that such dog was accustomed to do such damage."
The declaration of the plaintiff is in two counts. The first count alleges that a dog kept by the defendant assaulted and wounded the plaintiff while the plaintiff and said dog were "upon an open lot of land adjoining the property of the defendant and while said dog was out of the inclosure of its owner, the said defendant." The second count alleges that the defendant "did keep on his premises a dog, well knowing that the said dog was vicious and of such a nature as to bite mankind," and because of the negligence of the defendant in failing to secure and fasten the said dog it assaulted the plaintiff "while she was on the defendant's land, which was not inclosed."
At the trial the plaintiff testified that while she was playing with one of the children of the defendant upon an open lot, near to or adjoining the defendant's premises, she was assaulted and bitten by the defendant's dog. She is corroborated to some extent by the doctor, who attended her and probed her wounds, and who testified that such wounds were in his opinion made by the teeth of a dog. Testimony was offered by the defendant to the effect that the plaintiff came upon his premises, and, while there, her feet, through the natural movements of the dog, became entangled in a chain some 10 or 15 feet in length, with which the dog was secured to a doghouse, and was thrown down, and that her injuries resulted from her contact with some broken glass on the ground. The defendant does not claim that on May 19, 1914, the date of the alleged injury, his premises were inclosed by a fence or any other device designed to bar access thereto or exit therefrom.
The jury returned a verdict for the plaintiff for $150. A motion for a new trial was denied by the trial judge, and the case is now before us upon the defendant's exceptions.
The defendant in his brief has considered his exceptions numbered 5, 6, and 7 together, and we think that they may properly be so considered by this court as they involve substantially the same questions.
The fifth exception is to certain portions of the charge of the trial judge in which, after referring to the statute before quoted, he instructed the jury that:
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Wilbur v. Gross
...have been rather incidental and not vital to the determination of the cases in which they have been made, except in Whittet v. Bertsch, 39 R.I. 31, 97 A. 18, L.R.A.1916E, 710, which will be fully discussed infra. In none of the opinions in those cases has there been any careful consideratio......
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Bernhart v. Nine, 77-97-A
...protects the premises against encroachment. The father's request was based upon a 1916 ruling made by this court in Whittet v. Bertsch, 39 R.I. 31, 97 A. 18 (1916). Ada Whittet had been bitten by Christian Bertsch's dog while Ada was playing with one of Bertsch's children on an open lot "ne......
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Pritsker v. Greenwood
...construction of the statute, and held that the language of the act was broad enough to sustain plaintiff's action. In Whittet v. Bertsch, 39 R. I. 31, 97 A. 18, L. R. A. 1916E, 710, defendant was held liable for injury caused by his dog in the uninclosed part of his premises used by him as ......
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Sak v. Pytel
...I. 544, 37 A. 12; Peck v. Williams, 24 R. I. 583, 54 A. 381, 61 L. R. A. 351: Palmer v. Saccocia, 33 R. I. 476, 82 A. 265; Whiffet v. Bertsch, 39 R. I. 31, 97 A. 18, L. R. A. 1916E, 710), and we find no reason for disturbing the decision of the trial justice denying the defendant's motion f......