#### Harris, Respondent, vs. Hoyt, Appellant.

*October 27*

November *16, 1915.*

*Dogs: Liability of owner for injury to person: Trespassers: Negligence of owner.*

1. Sec. 1620, Stats. 1913, abrogates the necessity of alleging and' proving *scienter*on tlie part of the owner or keeper of a dog-which has injured a person or property, but does not impose an, absolute liability for such injury.

2. Plaintiff, wishing to visit a lady who lived upstairs in a duplex. flat, entered a door from the street into a common vestibule,, from which a door to the right led to the lower flat occupied by defendant, and a door to the left led to the upstairs flat. The-two doors were about a foot apart. Plaintiff had never been in\ the flat before. She rang the bell of the upper flat and was told to come up by the occupant thereof, who pressed the electric-button which released the lock of the door leading to it. Plaintiff tried the left-hand door, which she thought led to the upper-flat, but as it did not readily open she concluded it was the-wrong door, and tried the right-hand door, which opened and a dog came out and bit her while she still had her hand on the door knob. *Held,*that plaintiff was not a trespasser at the-. ’ time she was injured.

3. A jury in the Milwaukee civil court having found that defendant was negligent in the keeping of the dog, having in mind the prevention of injuries to any person, and the civil court having set aside the verdict and dismissed the action, it is *held*that under ■ the evidence the circuit court was not clearly wrong in reversing such judgment and granting a new trial on the ground that. whether defendant was negligent was properly a jury question..

Barnes,-J., dissents.

Appeal from an order of tlie circuit court for Milwaukee-county: J. C. Ludwig, Circuit Judge.

*Affirmed.*

Action to recover damages resulting from being bitten by a. dog kept by the defendant. August 5, 1914, plaintiff desired' to visit a Mrs. Harrow, who lived upstairs in a duplex flat, the lower flat being occupied by the defendant. A common door-opened from the street into a vestibule three or four feet deep and eight feet wide. Erom this common vestibule the door to-*499tbe right led to tbe flat of tbe defendant and tbe door to tbe left to tbe flat upstairs occupied by Mrs. Narrow. Tbe two ■doors were about a foot apart. Plaintiff bad never been in •tbe flat before. After entering tbe common vestibule sbe rang tbe bell leading to Mrs. Narrow’s flat. Mrs. Narrow' •answered immediately and asked wbo was there. On being informed sbe told plaintiff to come up, and pressed tbe electric button that released tbe lock of tbe door to her flat. Tbe plaintiff beard tbe click of tbe released lock, took bold of tbe left-hand door which sbe supposed was tbe one leading to Mrs. Narrow’s flat, but as it did not readily open sbe concluded sbe was attempting to open tbe wrong door, so sbe took bold of tbe right-band door, opened it far enough so that tbe ■dog kept by tbe defendant could pass through, which be did, and bit her while sbe still bad her band on tbe door knob. Tbe defendant was about sixty years old and kept tbe dog — a French bull- — for a companion, as sbe was left alone a great deal. It bad never given any trouble before except once about eighteen months previously, when it was in tbe bouse and a boy opened tbe door and it bit tbe boy’s band. On tbe day in question tbe defendant was in tbe dining room with tbe dog, and on hearing a noise at the door sbe spoke to tbe dog and said “There comes Harlowe,” meaning her son, and tbe dog immediately ran for tbe door with tbe result stated. Defendant’s door was usually locked, but owing to its swelled condition it had not been shut tight enough to permit the lock to catch at the time of plaintiff’s injury.

Tbe action was begun in tbe civil court, where the jury found (1) that plaintiff was free from contributory negligence; (2) that tbe defendant failed to exercise ordinary care in the keeping of tbe dog, having in.mind tbe prevention of injuries to any person; and (3) damages in tbe sum of $925.50. Tbe court, however, set aside the verdict and entered judgment dismissing tbe action. From such judgment plaintiff appealed to the circuit court. That court entered an *500order reversing tbe judgment of tbe civil court, and granted a new trial in tbe circuit court, from wbicb order tbe defendant appealed.

Eor tbe appellant there was a brief by *Oochems & Wolfe^*and oral argument by *H. 0. Wolfe.*

Eor tbe respondent tbe cause was submitted on tbe brief of *Gurlis & Mode.*

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*501fully 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.

Barnes, J.

(dissenting). I think tbe plaintiff was technically a trespasser, in that sbe entered a private dwelling place without license or invitation. It was no fault of de*502fendant that plaintiff made a mistake. This question aside, in my judgment the defendant should not be held liable. She ' was sixty years of age and “was left alone in the house a great deal, particularly nights — sometimes in the daytime, and many times a week alone in the building.” She testified without contradiction that she kept the dog to look after her and to take care of her. She had owned the dog for seven years, and once about eighteen months before it had bitten a boy slightly, under just what provocation does not appear, but it occurred on the back doorstep outside of the house in which plaintiff was then living. When taken out of the house in Milwaukee the dog was always held in leash. During an existence of seven years this animal had only one mark to his discredit, which would be a good record for most members of the animal kingdom. This dog was not a man-eater. I think the defendant had a right to keep him in her home for companionship and protection against marauders, and that she was not guilty of any negligence in so doing. I further think that a person may keep a dog in his house without being negligent, where he knows that the animal will bite intruders. A caller may make a mistake as to the door which should be entered in order to call on another, but this does not justify the caller in promiscuously opening doors and intruding into other places. There is one invariable custom that is pursued in such cases, and that is to knock, and await a response and an invitation to enter before doing so. The plaintiff says she had an invitation to enter in this instance, from the lady on whom she intended to call, but, finding that what she supposed was the right door did not open easily, she concluded to try the other one. Assuming that plaintiff was not a trespasser, the meat of the case is here: Defendant had a right to suppose that no one except a member of her family, or perhaps a licensee, would enter her apartments except by invitation. Can it be said that she should reasonably have anticipated that some person desiring to call on her neighbor *503and who bad knocked at her neighbor’s door and had been bidden to enter, would then attempt to enter by another door leading to another apartment ? I do not think so. I am entirely in sympathy with the rule that, where a person is in a place where he has a right to be and is, without provocation, bitten by a dog, the owner should be held responsible. I do not think the rule should be extended to a home where a dog has a right to be and where the person bitten has no such right; and whether she was a trespasser or not, plaintiff had no right to open defendant’s door without invitation.