Boyd v. Oddous
Before: Vanclief
Synopsis
Negligence — Keeping of Vicious Dog — Pleading — Contkibutoby Negligence. —A complaint in an action to recover damages, alleged to have been suffered by the plaintiff from the bite of a vicious dog owned and kept by the defendant, in consequence of the negligent manner in which the defendant kept the dog, need not negative contributory negligence on the part of the plaintiff.
Id. — Conflicting Evidence — Appeal. — Where the evidence in such actions is conflicting, both as to the negligence of the defendant and as to the contributory negligence of the plaintiff, a verdict in favor of the plaintiff upon both these issues will not be disturbed upon appeal.
Instructions — Appeal — Argument of Counsel — General Objection. '— Where the court gave oral instructions, intended to cover the whole ground of instructions asked by both parties, so far as possible, and which, though not very perspicuous, appear to contain no error prejudicial to appellant, an objection, urged in the points and authorities of counsel for appellant, merely stating “that instructions asked by appellant were proper, and that they were not covered by the court’s charge to the jury,” is too general. The proper instructions said to have been asked, and not substantially given, should have been specified by the counsel.
Vanclief, C. Action for damages alleged to have been suffered by plaintiff from the bite of a dog owned and kept by defendant, it being alleged that the dog was vicious, and accustomed to bite mankind, of which defendant had notice, and that plaintiff was bitten in consequence of the negligent manner in which defendant kept the dog.
The answer admits that defendant owned and kept the dog, but denies all other material averments of the complaint, and, as an affirmative defense, alleges “ that if the plaintiff had used ordinary caution,” he could have avoided coming in contact with the dog. This seems to have been intended as an averment of contributory negligence on the part of the plaintiff.
The verdict of the jury was in favor of the plaintiff, assessing the damages at $450, according to which judgment was rendered.
Defendant appeals from the judgment, and from an order denying his motion for new trial.
1. The first and principal point urged here by counsel for appellant is, that the complaint fails to state a cause of action, because it does not negative contributory uegli[512]gence on the part of the plaintiff, and therefore that defendant’s demurrer to the complaint and his motion for nonsuit should have been sustained.
No authorities are cited which tend to support this point; but the contrary doctrine seems to be firmly established in this state. (Robinson v. Western Pac. R. R. Co., 48 Cal. 409; Yik Hon v. Spring Valley Water Works, 65 Cal. 619; Magee v. North Pac. Coast R. R. Co., 78 Cal. 430; 12 Am. St. Rep. 69.)
2. There is no foundation in the record for the point that the court permitted evidence of special damages not pleaded, as no such evidence appears. Nor does it appear that any evidence of damage was objected to on the ground that the damage was not specially pleaded.
3. It is contended that the evidence does not justify a verdict of negligence on the part of the defendant; and if it does, that the jury should have found contributory negligence of the plaintiff.
Upon both of these issues the evidence was conflicting, and therefore the verdict as to neither should be disturbed.
4. Some very indefinite objections are made to the instructions given to the jury.
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