Riley v. Harris , 177 Mass. 163 ( 1900 )

Holmes, C. J.

This is an action of tort brought under Pub. Sts. c. 102, § 93, to recover double the amount of damage sustained by the plaintiff from a bite by the defendant’s dog. The injury was received upon the defendant’s land, and the defence is that the plaintiff was there in her own wrong, or, at least, at her own risk. The plaintiff was in service, in the neighborhood, it may be inferred, of the defendant. At the invitation of a friend who was a friend of the defendant’s servants the plaintiff went with her to call upon them. This may have been technically open to dispute but it was uncontradicted, and the defendant did not desire to dispute it. They were approaching the back door of the house by a back way when the dog rushed out and bit the plaintiff. There was controverted evidence that the plaintiff heard barking as she approached the house. Subject to exceptions the court instructed the jury that the plaintiff was not a trespasser, and could recover if she was in the exercise of due care.

It does not seem to us to need argument that the plaintiff was not a trespasser. “ There are cases . . . where the law will imply a license . . . from the usages of the community. Thus it has been held that the entry upon another’s close, or into his house, at usual and reasonable hours, and in a customary manner, for any of the common purposes of life, cannot be regarded as a trespass.” Lakin v. Ames, 10 Cush. 198, 220. Hawks v. Locke, 139 Mass. 205, 207. The private way upon which the plaintiff seems to have been travelling imported a license to approach the house for a social purpose familiar to every one according to a practice common in this part of the world. Therefore it is unnecessary to consider whether, if the plaintiff were a trespasser, she could recover. On the one hand, it may be assumed that a burglar bitten by a dog would have no standing in court, as the use of the dog probably would have been a legitimate defence not excluded by the statute. On the other hand, if the plaintiff manifestly was threatening no harm and the dog was set upon her, or if it was kept with intent that it should attack all comers, the case might fall within the principle of the spring gun cases as explained in Chenery v. Fitchburg Railroad, 160 Mass. 211, 212, 213.

In a case between the extremes just suggested, such as is presented by the facts before us fairly taken, where there was no malevolent intent on the defendant’s part, it has been held that even there the fact that technically the plaintiff was trespassing would not prevent a recovery at common law for an injury by an animal known to be dangerous. Marble v. Ross, 124 Mass. 44. Loomis v. Terry, 17 Wend. 496. Sherfey v. Bartley, 4 Sneed, 58. Compare Quigley v. Clough, 173 Mass. 429, 430 ; and, on stronger grounds, under a statute like ours, Woolf v. Chalker, 31 Conn. 121, 132. However this may be, we are of opinion that in the case of a licensee, which the plaintiff was, the statute applies. While, no 'doubt, a licensee must take some active forces upon the defendant’s premises as he finds them, and cannot demand or expect precautions to be taken on his account, for instance, in the case of railroad trains run in the usual way upon tracks which the plaintiff is permitted to cross, there are others which, even at common law, the landowner could not set loose in undefined courses without regard to the lawful presence of others upon his land. He might be liable for random shooting' with a rifle in a pasture where he permitted the public to pick berries, and, on the same principle, for allowing a dog known by him to be ferocious to range there unrestrained. Kelly v. Tilton, 2 Abb. (N. Y. App.) 495. The statute makes it unnecessary to prove the owner’s knowledge of the character of the dog, or of the danger, and imposes the double liability in any case where at common law an owner knowing the danger would be liable. Whether it goes further we need not consider. Its language is broad, and we do not mean to limit it to the cases just mentioned.

The plaintiff testified that she did not hear barking upon the defendant’s land. The defendant was allowed to go to the jury upon the question of her due care. This was sufficiently favorable for him. Raymond v. Hodgson, 161 Mass. 184, 185.

Hxceptions overruled.