#### Keenan vs. Hayden.

Evidence: Court and Jury. *(1) When question of sdexitec to be submitted to the jury in actionfor injuries from ferocious dog. (2) Court not bound to instruct jury as to the effect of one among several facts bearing on the question.*

1. Plaintiff’s minor child having been bitten by defendant’s dog, there was evidence, in an action for the injury, tending to show that defendant had owned the dog for two years before that time; that it was kept tied some portions of the time; that defendant sometimes took it on the *559street tied with a rope, thus keeping it under his control; that before biting plaintiff’s child, it had bitten several persons, mainly children,'at different times, and had at divers other times violently attacked many other persons; that it frequently attacked persons walking along the street in the vicinity of the defendant’s residence; and that it was a cross dog, and was known and shunned as such by defendant’s neighbors. *Held,*that the question of defendant’s *knowledge*of the dog’s vicious propensities was properly submitted to the jury on this evidence.

2. In such a case, where there are several facts in evidence tending to prove the *scienter,*it is not the duty of the court to instruct the jury what the consequences would have been if *only one*of those facts had been in evi- • dence; and there was no error in this case in refusing to charge that the mere fact of defendant’s confining his dog at times would not of itself warrant the jury in finding that it was known by defendant to be vicious.

APPEAL from tbe County Court of *Milwaukee*County.

Action to recover tbe expenses incurred by tbe plaintiff in caring for and curing bis minor son of wounds inflicted upon bim by tbe female dog of tbe defendant. It is averred in tbe complaint that, before tbe injuries were inflicted, tbe defendant bad notice of tbe vicious propensities of bis dog, etc., notwithstanding wbicb be suffered ber to go at large and do tbe injury. Tbe answer is a general denial. A motion for a nonsuit for tbe alleged want of proof of tbe *scienter*was denied, and tbe plaintiff bad a verdict. A motion ■ for a new trial was also denied, and judgment entered pursuant to tbe verdict; and tbe defendant appealed.

■ *Jared Thompson, Jr.,*for appellant,

contended, that there -was no evidence to go to tbe jury, that tbe defendant,' or any member of bis family, or any of bis employees, bad knowledge or notice that bis dog was. of a ferocious disposition, or accustomed to bite mankind. 1 Ld. Ray., 606; 12 Mod., 332; *Judge v. Oox,*1 Starkie, 285 (2 E. C. L., 392); *JBlackman*v. *Simmons,*2 C. & P., 138 (14 E. C. L., 243); *Beck v. Dyson,*4 Oampb., 198; *Cook v. Waring,*3 Hurl. & Colt., 332. Tbe fact that tbe animal bad been tied up, did not tend to prove knowledge by tbe defendant that she was vicious, and was not evidence to go to tbe jury on that question. *Jones v. Perry,**5602 Esp., 482, and tbe cases above cited. 2. Tbe court erred in. submitting to tbe jury tbe question of tbe *scienter,*to be answered by them in a special verdict. Tay. Stats., 1496, § 14; *McMasters v. Mutual Go.,*25 Wend., 879. 3. Tbe court erred in giving tbe special instructions asked by tbe defendant.

*John, J. Orton,*for respondent,

contended that there was evidence of notice to tbe defendant’s wife,who was shown to be bis agent in running bis saloon and boarding bouse during bis absence; and that this was sufficient. 2 Esp., 482; *Apple-bee v. Percy,*L. R., 9 O. P., 647; *MilUken v. Pehon,*27 N. Y., 364.

LyoN, J.

It is conceded that tbe minor son of tbe plaintiff was severely bitten by tbe defendant’s dog, and that, if tbe _ plaintiff is entitled to recover anything, tbe damages were assessed at a reasonable sum. Tbe principal question to be determined is, whether there was sufficient testimony tending to show that tbe defendant knew tbe vicious propensities of tbe dog, to justify tbe court in submitting the question of *scienter*to tbe jury. Or tbe question is, rather, whether there was any testimony in tbe case tending to prove such knowledge by tbe defendant; for if there was any testimony of that character, tbe question was properly left to tbe jury.

Tbe testimony tends to prove that tbe defendant bad owned tbe dog. two years before she bit tbe plaintiff’s son; that she was kept tied some portions of that time; that tbe defendant sometimes took her on tbe street tied with a rope, by means of which be kept her under bis control; that before she bit tbe plaintiff’s son, she bit several persons, mainly children, at different times, and at various other times violently attacked many other persons; that she frequently attacked persons passing along tbe street in tbe vicinity .of tbe defendant’s residence; and that she was a cross dog, and was known and shunned as such by the defendant’s neighbors. One *561witness testified as follows: “There was not a child in the neighborhood who was not afraid of this dog. She had bitten most of them, and all the neighbors complained about the dog.” About three months before the plaintiff’s son was bitten, the dog had bitten a boy named Clark; and the mother of the latter testified that she informed the defendant of the fact, but she could not remember whether it was before or after plaintiff’s son was bitten.

Much of the foregoing testimony was controverted on the trial, yet the jury may have believed it; and if the same is true, the presumption is very 'strong that the defendant, and his agents who had charge of. the dog when the defendant was absent, must have had some knowledge of the character and conduct of the dog. Ye think the testimony tended sufficiently in that direction to render the question of *seienter*a proper one for the determination of the jury, and hence, that the motion for a nonsuit was properly denied.

The defendant prayed three instructions to the jury, which the court refused to give. They were to the effect that the mere fact that the defendant confined his dog at times, unaccompanied by proof of other facts and circumstances tending to establish the *seienter,*would not, of itself; warrant the jury in finding such *seienter,*or that the dog was tied because she was vicious. The fact of confining the dog does not stand by itself, but is accompanied by proof of other facts tending to show that the defendant knew the character and conduct of his dog; and certainly it was not the duty of the court to instruct the jury what the consequences would have been had the fact of confining the dog been the only one proved having such tendency. The charge of the court to the jury is a full and fair statement of the law of the case, and no exception to it was taken.

This disposes of all the alleged errors, of sufficient importance to require notice, adversely to the appellant.

*By the Court.*— Judgment affirmed.