knew he was hit by a car probably a great deal of pain probably significantly enters well so if she's got her arms around the dog the dog died just a few seconds later it's been critically injured was a significant injury from being struck peacefully conducting himself in a place where he may lawfully be unless the person provokes the animal and then there's the definition of provocation so this is the only jury instruction that provided in the young but we have here w claim which appears to be that there would be an argument by why wasn't at all in the burden of proof obstruction that you submitted was given by the court because we didn't hear the instruction that she could not recover we   you know is that in a separate instruction and not part of the burden of proof obstruction because that's what sets out what the jury has to find for the plaintiff to recover or not recall right right  standard but as this court actually held in a case that actually changed the i p i for the dog by statute it's this reasonable doxy so the issue is you know how an animal and similar circumstances respond are actually read to the jury and the appellate version of their jury is and all that was provided in the court said based on brown we cannot say that the jury instruction issues were probably insufficiently specific enough to preserve the issue and the issue is way if the court looks at the jury instruction conference in the record on appeal or found in page two seventy nine to eighty six on the record there's four sentences during the section with the proposed eight and nine from the defen given if we don't is it is there any i p r instruction that would tell a jury that if the plaintiff had custody of the dog or whatever she could not recover there is no we need to look at what he she and whatever group the structures were given to the jury here or the judge here and when we look at the issue instruction that the judge hole or decided he would give defendants number ten it was a version like the i twenty point zero one it is that were rejected that there wasn't sufficient evidence in the case to justify him that there's nothing here to really show that she had any control over the dog i think i think that right that argument was made at different stages in the summary judgment stage and i don't know that it was made at the jury instructions ok so nobody said anything about these two instructions of the time the court refused them on the record on the record they did not ok so so we really don't have all day matthew to first answer your question your honor about that you're a conference and we were not restricted in arguments while only a portion of it was held on record we could have a s this for the jury and that's all we can do the jury was given one ten point zero four and the defendant pounded that jury instruction off for trial we can't tell the jury how to now defend its position is that plaintive because he was reacting to a mortal wound but we have to look at the whole circumstances here while they don't hit the dog was hit because at least two times that day he got out of the yard ran into the street same thing it's certainly forseeable that visitors are going to come to your house and certainly first feel that if you don't keep your dog on your property in your yard your dog run out into the street and get hit by a car is it possible that this jury felt that this is exactly what trying until they get the result that they want the instruction given to the jury is one to know for he says the term provoked means any action or activity whether intentional or unintentional which could reasonably be expected to cause normal animal in similar circumstances to react in a manner similar to that shown by the evidence so it's we're back to the reasonable dog field right so it was up to the jury to decide what a reasonable dog would do under the same or question the robinson case also reminds us that if the provocation was unintentional which it anything in this case travis certainly didn't need to provoke the dog if it was an intentional you have to look at the dog's reaction and whether or not was proportionate to what happened council says that all reasonable dog there hit by a car will might tend to differ with that this is a question for the jury the nelson versus lewis case tells us that we have to look provocation could be established merely by showing that an animal's attack resulted from some outside stimulus and was not merely spontaneous which is what the band if it's a plaintiff would almost never be able to prevail was present to this court but we presented it to the judge in the summer that's the case that's our position desert and we presented him the jury instructions conference and my exact words are discussing those acting as a custodian there's not enough there in the to fully instruct the jury there needs to be some additional jury instruction so the dreaming of the session of ownership or in this case acting as a historian the time how my trying to argue it really changes the fact that we didn't have the appropriate structures here