Chickering v. Lord , 67 N.H. 555 ( 1893 )

"The owner or keeper of a dog shall forfeit to any person injured by it double the amount of damage sustained by him, to be recovered in an action of debt." P. S., c. 118, s. 10. In actions on the statute, no question of care or negligence on the part of the dog-owner is involved. The utmost vigilance to prevent his dog from doing an injury affords him no defence. But he is not liable if the injured party by his negligence provokes, or by ordinary care could prevent, the action of the dog. Quimby v. Woodbury, 63 N.H. 370. There was here no evidence on which it could be found that the plaintiff did, or omitted to do, any act the doing or omission of which in fact caused, or could reasonably be expected to cause, the dog's behavior, or that he failed to do anything that he reasonably ought to have done to prevent it. If he had not used a skittish horse and unsafe carriage, it may be that he would have escaped injury, as he would if he had not driven in the neighborhood of the dogs; but his conduct in these particulars was not a breach of any duty he owed to the dogs or their master. It is immaterial that his situation was dangerous to himself from causes other than the assault of dogs. Metropolitan Railway Co. v. Jackson, 3 App. Ca. 193, 198; Dublin, etc., Railway v. Slattery, 3 App. Ca. 1155, 1166; Nashua Iron and Steel Co. v. Railroad, 62 N.H. 159, 164. It is established by the verdict that but for the action of the dogs no harm would have befallen him. The instruction requested was properly denied. Rice v. Porter, 17 N.H. 133, 137; Norris v. Haverhill, 65 N.H. 89.

Exception overruled.

SMITH[,] J., did not sit: the others concurred.