Harris v. Hoyt

Vinje, J. Defendant correctly contends that sec. 1620,. Stats. 1913, does not impose upon tbe owner or keeper of a dog an absolute liability to respond in damages to any one bitten by it no matter under wbat circumstances. Tbe section provides: “Tbe owner or keeper of any dog wbicb shall have injured' or caused tbe injury of any person or property or- killed, wounded or worried any horses, cattle, sheep or lambs shall be-liable to tbe person so injured and tbe owner of such animals for all damages so done, without proving notice to tbe owner or keeper of such dog or knowledge by him that bis dog was-mischievous or disposed to kill, wound or worry horses, cattle, sheep or lambs.” Its purpose was to abrogate tbe necessity of alleging and proving scienter on tbe part of tbe owner or keeper, not to impose an absolute liability. Schaller v. Connors, 57 Wis. 321, 15 N. W. 389; Meracle v. Down, 64 Wis. 323, 25 N. W. 412; Legault v. Malacker, 156 Wis. 507, 145 N. W. 1081. But it does not follow from this that tbe circuit court erred in setting aside tbe judgment of tbe civil court and in granting a new trial. It was evidently tbe opinion of tbe court that a jury might properly find defendant guilty of a want of ordinary care in keeping tbe dog at home, as she did, where it might injure any stranger who accidentally, as tbe plaintiff did, or otherwise, opened tbe door to tbe flat where it was kept. Can we say that such a conclusion was clearly erroneous? In order to reverse we must be able to do that. Plaintiff was-not a trespasser at tbe time she was injured. She was right [501] fully in tbe vestibule when tbe dog bit ber. Tbe mistake of opening tbe wrong door as sbe did was one that might happen to any one, and did not spell negligence on ber part. The-construction of tbe entrances of tbe two flats was such that a jury might reasonably conclude tbe defendant ought to have-anticipated that such a mistake as tbe plaintiff made might readily occur and hence sbe should have kept tbe dog so secured that be could not injure an innocent intruder. It is. shown also that sbe bad knowledge of tbe fact that tbe dog bad once before under very similar circumstances bitten the-band of a boy who was opening tbe door of a room where it. was. Defendant relies upon tbe rule as to tbe duty owing to trespassers stated in Zartner v. George, 156 Wis. 131, 145 N. W. 911. For tbe reason already stated that plaintiff in this case was not a trespasser, as well as for tbe further reason that the-rule in Zartner v. George applied obviously to tbe physical condition of tbe premises and not to tbe keeping of vicious, animals, it can have no application to tbe instant case. Just bow far tbe fact that plaintiff is a trespasser, where such is. tbe case, may modify tbe rule of liability need not be determined. Tbe authorities, however, are quite uniform that tbe mere fact of plaintiff being a trespasser is not always a complete defense. Meibus v. Dodge, 38 Wis. 300; 1 Ruling Case Law, p. 1123; 3 Corp. Jur. pp. 97 et seq. Since there must be a new trial in which a jury will pass-upon the question of defendant’s negligence in keeping tbe dog under tbe circumstances shown by tbe evidence, we forbear to comment upon its probative force on that question further than to state that it can support a finding either way. By the Gourt. — Order affirmed.