Burden v. Globerson

FOURT, J.

This is an appeal from a money judgment for plaintiff after he was bitten and injured by defendant’s dog.

Burden filed his complaint on October 26, 1961, alleging, among other things, that defendant was the owner of a certain dog of mixed breeding; that on July 10, 1961, while on defendant’s premises, plaintiff was attacked and bitten by the dog; that plaintiff suffered severe injuries and the loss of a part of one finger as the proximate result of the dog attack and further suffered other damages including medical expenses and loss of earnings. The defendant answered by denying the pertinent allegations of the complaint and by affirmatively asserting that the dog was chained to a dog

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house on defendant’s premises and that signs on the premises advised the public at large to beware of the dog. Further it was alleged that Burden had knowledge of the dangerous propensities of the dog and assumed the risk involved by approaching the dog for the purpose of feeding him. In a second affirmative defense, defendant asserted that Burden was contributorily negligent. Trial before the court was had on March 22 and 23,1966.

Some of the facts are as follows: For about three years prior to July 1961, Burden was engaged in operating an industrial catering truck (lunch wagon). Burden took over the business from a previous truck driver who introduced Burden to all of the customers on the route. When Burden met defendant, a customer on the route, the latter told Burden “that all the previous drivers had always left a pint of milk for his dog.” When Burden first saw the dog he was chained to a dog house with a chain about 10 to 15 feet long. Burden made five calls per week to defendant’s place of business and on practically each occasion for about three years had given or left a pint of milk for the dog. On the occasions when Burden poured the milk into the dog’s dish or bowl, Burden would go to the area where the dog was chained, pour the milk into the dish or bowl and then leave. The dish or bowl was within the length of the dog chain. Never until July 10, 1961, had the dog bitten or attacked Burden. On a few occasions Burden was late and, in those instances, he would just leave a pint of milk on a ledge and tell defendant or one of his men.

On occasions, too, Burden left day-old sandwiches with defendant for the dog. On at least one occasion defendant asked Burden, “Have you fed Mike [the dog] yet?” At no time did Burden ever tease or provoke the dog. Burden took the milk to the bowl and poured it for the dog because it was expected of him and for no other reason.