Boylan v. Everett

Lathrop, J. The bill of exceptions in this case does not state that it contains all of the evidence material to the issue involved, and the question whether the defendants were the keepers of the dog, within the Pub. Sts. c. 102, § 93, was a question of fact for the jury. Barrett v. Malden & Melrose Railroad, 3 Allen, 101. Collingill v. Haverhill, 128 Mass. 218. McLaughlin v. Kemp, 152 Mass. 7. Whittemore v. Thomas, 153 Mass. 347. O'Donnell v. Pollock, 170 Mass. 441. The first instruction requested was, therefore, rightly refused. The first part of the second instruction requested was given in substance. We do not think that the judge was required to give the last part of this request as matter of law: “ The mere fact that a dog is kept by its owner on the premises of another with the knowledge, or acquiescence, or permission of the owner of such premises, does not of itself make the owner of said premises the keeper of the dog.” Whittemore v. Thomas, ubi supra. Nor can we say that the facts that the defendants fed and caressed the dog, called it in and sent it out, and that it was treated “ the same as anybody would that had a dog at their home,” which is the testimony of the defendants, and which we assume to be the meaning of the last part of the second request, required the .judge to rule, as matter of law, that the defendants were therefore the keepers of the dog, irrespective of the fact [458] that the dog belonged to their nephew, who was a boarder with them. As to the third request we do hot think that if the defendants exercised some control over and had some custody of the dog, it therefore followed that the plaintiff was entitled to a ruling, as matter of" law, that the defendants were responsible for him as keepers. We are further of opinion that the judge was not bound, as matter of law, to give the fourth ruling requested. While the acts recited may be evidence of keepership, more or less significant according to the other facts appearing in the case, it cannot be said that they are conclusive. The exception taken to the charge is only so far as it is inconsistent with the requests made. It seems to us that the requests were rightly refused ; and that the case was properly submitted to the jury on the evidence. Exceptions overruled.