Citations
- 121 A.D. 268
Full opinion text
Rich, J.:
The only question to he considered is whether the plaintiff .made out a case entitling him to go to the jury. While the evidence might not he regarded as entirely satisfactory, yet there was sufficient, if the jury believed it, upon which to base a finding that this was a ferocious, dog,, kept by defendant for several year's, with knowledge of his vicious disposition, arid that the attack -on plaintiff '.was not invited; that he was not at fault. Plaintiff entered the stable where the dog’ was confined, at the request of defendant’s stableman in -charge, to hold a lantern, and was immediately attacked by the dog and severely bitten. , - .
We think the plaintiff made out-a case éntitling him to go'to the jury upon all the questions involved,- and the' judgment must, therefore, be reversed and a new trial ordered, costs to abide the event.
Woodwabd, Jenks, Hookee and' Gaynoe, JJ., concurred; the latter in separate memorandum. •
Gaynor, J.
(concurring):
Why the justice dismissed this case^at the close of the plaintiff’s evidence does not appear. The jury could, have found that the defendant’s stableman invited the plaintiff into the .defendant’s stable to hold a lantern, and that as soon as he went in the defendant’s dog rushed at him and bit him. There was ample evidence that the dog had- previously bitten other people, and that the defendant knew it. The justice was about to dismiss the case on. thé ground as he stated that there was no evidence that the stableman “had control of this dog”. The'evidence all showed that the dog had been kept there for a long time; and in'whose charge would he be presumed to be except in that of the man in charge of the building.' But how did that matter ? - He was kept there by ■the defendant, whoever had charge of him. The .plaintiff then called the stableman and showed that he was in charge,’frustrated all the while however by objections and rulings that should have no place in the trial' of a cause; but the justice still persisted in dismissing the case. ■ - .
The judgment should be reversed.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.