Colby v. Lee , 83 N.H. 303 ( 1928 )

The first reason assigned by the defendant in support of its motion is without merit and calls for no discussion. The second reason requires further notice.

In the opinion it is stated that "the extent to which rules of law shall be given specific application to the claims of the parties and the facts disclosed by the evidence in a given case must be left to the sound discretion of the trial court." The defendant argues that this statement is subject to some qualification, and this criticism appears to be justified in view of our decisions in Simoneau v. Railway, 78 N.H. 363, 365; Burke v. Railroad, 82 N.H. 350, 361; McCarthy v. Souther, ante, 34, 35. The passage above quoted should be modified so as to read as follows: "The extent to which rules of law shall be given specific application to the claims of the parties and the facts disclosed by the evidence in a given case must be left to the sound discretion of the trial court, provided the jury is ``fully and correctly' instructed. Burke v. Railroad, 82 N.H. 350, 361." That the jury was correctly instructed cannot be doubted. Our former conclusion that they were as fully instructed as the evidence in the case demanded, is affirmed. A re-examination of the record, however, leads to the further conclusion that the granting of the defendant's 7th and 10th requests would have been error.

The plaintiff's evidence tended to prove that as he was entering a store near the defendant's house, the dog in question attacked him and tore his trousers; that when he came out of the store the dog again attacked him and bit his finger. The plaintiff testified that after he was bitten he went to the door of the defendant's house "to notify Mr. Lee about the dog," but could not "raise anybody"; that the dog followed him up the walk nearly to the door; that as he came out of the walk the dog jumped at him several times and that he kicked at the dog "once or twice perhaps" but did not hit him.

A witness for the defendant testified that on the day of the accident, he saw "a man" in Mr. Lee's yard "trying to kick the dog." He described two kicks as follows: "he kicked the dog way over here [indicating], and then he turned around and kicked the dog this way. I don't know whether he hit him or not." Asked if he saw the man get bitten, he replied, "No." Another witness for the defendant testified that after hearing something about plaintiff's encounter with the dog from the keeper of the store, he went out and saw the plaintiff "standing on the sidewalk directly in front of Mr. Lee's residence, " that the plaintiff said "this dog just bit me, bit my leg," and inquired if Mr. Lee was at home, and he answered that "he [Mr. Lee] was working."

It is argued that from this evidence the jury might have disbelieved the plaintiff's testimony as to the object of his visit to Mr. Lee's house, and found "that the plaintiff went upon the defendant's premises for the purposes of attacking or provoking the dog." Even if this were true, it would not aid the defendant. The account given by the plaintiff and that given by the witness of the encounter in the defendant's yard were consistent in all substantial particulars. The statement of the witness that the plaintiff twice kicked at the dog was not denied by him, but the foregoing testimony contains no contradiction of the plaintiff's evidence that he was bitten before he went into the defendant's yard at all. Consequently, an instruction given in accordance with defendant's 7th request, which contemplated a possible finding that he was bitten while there, would have been misleading and improper.

Similar considerations apply to defendant's 10th request. The only evidence tending to prove that the plaintiff attacked the dog at all was that of the witness quoted above, who saw him in the yard and who testified, "I imagine the man was mad and he was trying to kick the dog and he got the dog mad." There was no evidence whatever that the plaintiff made any attack upon the dog before he went into the yard. If the imagination of the witness would justify a finding that the plaintiff attacked the dog in the yard, it would not justify a finding that he was bitten at that time, and an instruction which suggested the possibility of such a finding would have been improper.

Former result affirmed.

All concurred.