Worthen v. Love

Tbe opinion of tbe court was delivered by Ross, J. On tbe facts found by tbe County Court, its judgment for tbe defendant was correct. Tbe owner of a dog known to be vicious, has the right to keep him, if he exercises proper care and diligence to secure him so that he will not injure any one who does not unlawfully provoke, or inter-meddle with him. Tbe court has found that the defendant knew tbe dog was vicious and képt him chained during the day time in his barn, and that he broke away and injured tbe plaintiff by reason of being unlawfully provoked by tbe plaintiff, who bad no lawful occasion to go to tbe barn where the dog was chained. Hence, tbe only question for consideration is whether the court improperly excluded tbe offered testimony [287] of Eugene Alexander. The defendant bad conceded that he knew the vicious propensity and character of the dog, and that, ever since he had that knowledge, he had kept him securely chained in his barn during the day time with the barn doors open, but left him unchained in the barn nights with the barn doors securely closed. This testimony tended to show that the defendant had exercised due care and diligence in restraining the dog, and that if he broke away on the occasion of the injury, it was owing solely to the negligence, or unlawful conduct of the plaintiff, in provoking the dog. The rejected testimony of Alexander tended to show that the defendant did not keep the dog securely chained during the day time, but left him so insecurely chained that only a few days before the injury of the plaintiff, the dog when unprovoked, broke away from its fastenings, and injured the witness’ young daughter, when passing on the street, and that this was known to the defendant. This offered testimony bore directly upon the care and diligence of the defendant in keeping the dog, and of his knowledge that he was insecurely fastened. It also tended to impeach the credibility of the defendant as a witness. It was therefore admissible. The fact that the court supposed that it only bore upon the character of the dog, and the defendant’s knowledge of it, — which had been conceded, — did not without inquiry, or having the purpose for which the testimony was offered, stated, authorize its rejection. Camp v. Camp, 59 Vt. 667, is a recent and full authority on this point. As it cannot be known what facts would have been found if this testimony had been admitted, the judgment must be reversed and cause remanded for a new trial.