The complainant and the opponent dog owners lived across the street from each other. The complainant child was a playmate of the opponents’ eight-year old son and the children visited with each other at both homes. The opponents owned a dog which they had restrained by tying him to a run near the garage by means of a 10-foot chain. When the opponent dog owners were away from the house, the children were playing in their driveway. The child stopped to pet the chained dog and when the animal growled, he walked away. His friend testified that he told the complainant child that when the dog growled it’s not in the mood to be petted at all. The complainant’s friend further stated that the complainant went back a second time and walked away again when the dog growled, but that on a third occasion he went back up again and he was starting to get away when the dog bit him. A portion of the examination before trial of the opponent was read into evidence. She stated that about three months before the biting incidentin the instant case the dog had bitten another child. As a result of the dog bite, the child suffered three facial wounds which have left three permanent scars.
To enable an owner of such an animal to interpose a defense, acts should be proved with notice of the character of the animal, which would establish that the person injured voluntarily brought the calamity upon himself. In considering the evidence, the jury should have been charged that the opponents had the burden of proving that the injured child had full knowledge of the dog’s character and voluntarily brought the injury upon himself.
Although the injured child noted objection to certain portions of the charge and made requests to charge, the dog owners failed at the trial to object or except to the contributory negligence instructions. Under the law, failure to make one’s objections known before the jury retires may restrict review upon appeal, for only those charges, or refusals to charge as requested, to which appellant objected are subject to review by the appellate court.
The trial court also denied the dog owners’ requested instruction on evidence of the dog’s vicious propensities. Although standing alone may not rise to the quality of error which would require reversal, the denial of dog owners’ request to charge did not aid the jury in focusing on the issue of vicious propensities. The request stated that in determining whether the dog has vicious propensities they may consider the nature of the dog’s attack on the child, the result of the dog’s attack on the child, whether the dog has bitten before, whether the dog was chained up or not. Pattern Jury Instructions recommends such an instruction. The cases support the request that such evidence be considered on the issue of vicious propensities. Nonetheless, the court’s limited definition of vicious propensities did convey the correct rule. Thus, the failure to detail relevant factors without more might be considered harmless. However, when considered in the light of the erroneous contributory negligence instruction, the refusal to charge as requested is further reason for a new trial.
Although our determination makes it unnecessary to address the child’s two other contentions, a brief comment with reference to them may be helpful. At the close of the proof both parties moved for directed verdicts and their motions were properly denied. The proof presented questions of fact for jury determination and neither party was entitled to judgment as a matter of law. There is no conclusion which could be reached by the court at the time the motions were made as to whether the prior dog bite had been provoked or the child’s knowledge of the dog’s disposition and the significance of petting the dog.
The dog owners’ argument that the verdict is against the weight of the evidence is also without merit. A jury verdict should be set aside only where it seems palpably wrong and it can be plainly seen that the preponderance is so great that the jury could not have reached their conclusion upon any fair interpretation of the evidence. In the circumstances the judgment was reversed and a new trial granted.
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