Ahlstrand v. Bishop

Mr. Presiding Justice Sears delivered the opinion of the court. There is no evidence to sustain the allegation of the narr. that appellant negligently permitted the dog to run at large, or, as expressed, in the declaration, “ to go unrestrained,” whereby, etc., for the evidence establishes that the dog was kept upon a chain in appellant’s yard. The case went to the jury upon those counts which alleged only that appellant kept a dog known to be vicious; that appellee was lawfully upon the premises, without negligence upon his part, and was attacked and injured by the dog. If it were necessary to allege and establish by evidence some negligence in the manner of securing the dog, in order to hold appellant liable, the case here would be deficient. ' But the law is that the very keeping of an animal known to be vicious and likely to attack and injure men, is of itself such negligence as will render the one keeping such animal liable for injury done by it. Hammond v. Melton, 42 Ill. App. 186; 1 Hilliard on Torts (4th Ed.), p. 593; 1 Addison on Torts (Wood’s Ed.), p. 283; Cooley on Torts (2nd Ed.), p. 404. Judge Cooley says: “ When the owner is notified that his dog has been accustomed * * * to attack persons, if he still keeps him, he becomes, from the time of such notice, responsible for all injuries of the sort he may thereafter commit, and the fact that he endeavors to so keep the dog as to prevent the mischief will not protect him, but by keeping him he will take upon himself all risks.” Addison puts the rule as follows : “ Whoever keeps an animal accustomed to attack or bite mankind, with knowledge of its dangerous propensities, is prim,a facie liable to an action for damages at the suit of any person attacked or injured by the animal, without proof of any negligence or default in the securing or taking care of it." The gist of the action is the keeping the animal after knowledge of its mischievous disposition.” And Hilliard says: “ The property in the animal raises the duty, on the part of the owner, to guard against the mischievous propensities, and failing in this, it holds him answerable for its injurious acts, without regard to the degree of care bestowed in controlling it. * * * It is not a question of want of due care on the part of the owner.” In Hammond v. Melton, supra, the court, speaking through Mr. Justice Cartwright, said: “ The gist of the action is not the manner of keeping the vicious animal but the keeping him at all with knowledge of its vicious propensity. * * 1 * In such case it is not necessary to prove a want of care in methods of stabling or fastening.” Citing Stumps v. Kelley, 22 Ill. 140; Flansburg v. Basin, 3 Ill. App. 531; Wood on Nuisances, Sec. 759; and the authorities above quoted. The vicious disposition of the dog, the scienter, and the injury, being established without contradiction, it only remained to submit to the jury the question of any lack of due care upon the part of appellee. The evidence, though conflicting, was sufficient to warrant the jury in finding that he was not guilty of any contributory negligence. Appellee might well have relied upon the presence of the employe, and afterward of the son, of appellant, to protect him from injury while performing his duty. He had only been warned against entering the premises when no one was present to attend to the dog. There is no error in procedure warranting a reversal. Upon all the evidence we can not say that the amount of the judgment is excessive. The judgment is affirmed.