Wallace v. Waterhouse

Upon the conclusion of the plaintiffs' testimony in chief, the defendant moved for a nonsuit upon two grounds, to wit: (1) that there could be no recovery in this State for the negligent killing of a dog; and (2) that testimony upon which to base a finding of negligence on the part of the defendant, as a proximate cause of the injury to the dog, had not been produced. The court granted the motion upon the latter ground only, and later denied the plaintiff's motion to set the nonsuit aside.

The plaintiffs offered evidence tending to show that the defendant, while operating an automobile in the highway, ran over and killed their dog; that at the time of this occurrence he was going at a high rate of speed, estimated by the only person who placed an estimate upon it as twenty miles an hour; that the dog, being in company with two others upon the sidewalk, turned to cross the street, and that he was run over while in the act of crossing. Here the plaintiffs stopped with their proof, and the jury was left uninformed upon other details which might have been significant, especially in view of the habits and characteristics of dogs as commonly known. It would be easy to surmise a variety of things entering, as acts of causation, into the injury to the dog, which might have occurred in addition to these determinable factors and consistent with them. Such additional factors in the situation might point to a lack of care on the part of the driver of the automobile. They easily might, on the other hand, demonstrate that he was free from blame, and that the dog was responsible for his own death. No light was thrown upon these matters of possible controlling importance, and the jury was left to conjecture as to what occurred and what the real proximate cause of the killing of the animal was. The improper speed of the automobile may have concurred in point of time with the dog's injury without being the cause of it. "Excessive speed being proved, the cause of the accident would still be a matter of conjecture with the jury. While the cause of the accident could be proved by presumptive evidence and need not be established beyond a reasonable doubt, . . . the plaintiff was bound by his evidence to remove the cause from the realm of speculation, and to establish facts affording a logical basis for the inferences which he claimed." Morse v.Consolidated Ry. Co., 81 Conn. 395, 398, 71 A. 553.

The court below did not pass upon the legal question presented in the motion for a nonsuit, and we have no occasion to do so.

There is no error.