Linck v. Scheffel

Conger, J. This was an action of trespass on the case. The appellee was a boy aged about seven years, and on the morning of the 28th of November, 1887, was passing appellant’s residence with a hand-sled, and there being a slight inclination in the sidewalk in the duration the boy was going he threw himself down upon his sled to coast down the incline when appellant’s dog sprang upon him and bit him in the hip. There was some attempt upon the part of the appellant to show that the instant before the boy was bitten he had kicked the dog, or attempted to do so, but the jury, in a special finding, found that he did not, and also that appellant’s dog was accustomed to bite mankind prior to the 28th day of November, 1887, and that appellant had knowledge of such fact, which findings, we think, were justified by the evidence. The jury returned a verdict for seventy-five dollars, upon which judgment was rendered, and appellant brings the case here for review. It is urged that the instructions given upon the measure of damages is not a correct statement of the rule applicable to such cases. The answer to this objection is two-fold: first, no point was made in the court below upon motion for a new trial that the damages were excessive. As said in Jones v. Jones, 71 Ill. 563, “ Where the damages are excessive the presumption is that on being asked, the court below will require a remittitur to the proper amount or grant a new trial. And when no such request is made of the judge trying the case the party must be regarded as having had no objections to the amount of the finding, or , if he had, that he waived them.” Second, the damages, in our judgment, are not excessive, and hence appellant has in no way been injured by the instructions complained of, even if erroneous. Complaint is made by appellant that the court refused the following instructions: 5. The court instructs the jury that if they believe from the evidence that the dog's biting the plaintiff was prevoked by the plaintiff’s kicking the dog, and was due to that fact alone, then they should find the defendant not guilty, notwithstanding the plaintiff is a minor. 7. The jury are instructed that if they believe from the evidence that the defendant’s dog was irritated and aggravated to bite the plaintiff, by being kicked by the plaintiff, that the plaintiff can not take the advantage of his own wrong and receive as damage for an injury received as a result of his own carelessness and recklessness; and if the jury believe from the evidence that the defendant’s dog bit the plaintiff, as the sole result of being kicked by the plaintiff, and not from the fact of being a dangerous and savage animal naturally, they will find for the defendant. When it is remembered that appellee at the time of the occurrence was only about seven years old, it can be seen that these instructions were calculated to mislead the jury and were properly refused. They virtually place appellee upon the same plane of care and diligence as an adult, entirely ignoring the principle that the jury must determine from the age and general intelligence of appellee at the time, whether or not he used the care required of him by the law. C. & A. R. R. Co. v. Murray, 71 Ill. 601, and cases there cited. The court below refused to permit appellant to show that his dog at other times and to other persons than those referred to by appellee’s witnesses, was quiet, and had never offered to bite them, and this ruling we think was right; for it matters not what the dog’s general character for peaceableness was, if it could be shown that he had in fact bitten people without justification prior to his assault upon appellee, and that appellant had knowledge of it. Neither would it have been proper to show that appellee at other times and planes than the one where bitten, had teased and worried the dog. It would be a dangerous rule to hold that because a thoughtless child should at one time strike or worry a dog he might afterward be bitten with impunity. We think the verdict is well sustained by the evidence, and no such substantial error occurred upon the trial below as to require us to interfere. The judgment of the Circuit Court will therefore be affirmed. Judgment affirmed.