Plumidies v. . Smith

22 S.E.2d 713, 222 N.C. 326, 1942 N.C. LEXIS 92

• Court: Supreme Court of North Carolina
• Decided: November 25, 1942
• Status: Published

Opinion

Stacy, C. J.

Tbe principles bere applicable are well settled. First. To recover for injuries inflicted by a domestic animal, in an action like' tbe present, two essential facts must be shown: (1) that tbe animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) that tbe owner or keeper knew or should have known of tbe animal’s vicious propensity, character and habits. Hill v. Moseley, 220 N. C., 485, 17 S. E. (2d), 676; Banks v. Maxwell, 205 N. C., 233, 171 S. E., 70; Rector v. Goal Co., 192 N. C., 804, 136 S. E., 113; S. v. Smith, 156 N. C., 628, 72 S. E., 321; Hallyburton v. Fair Assn., 119 N. C., 526, 26 S. E., 114; Harris v. Fisher, 115 N. C., 318, 20 S. E., 461; Cockerham v. Nixon, 33 N. C., 269. See, also, Lloyd v. Bowen, 170 N. C., 216, 86 S. E., 797.

Second. On motion to nonsuit, tbe plaintiff is entitled to tbe benefit of every fact and inference of fact pertaining to tbe issues involved, which may reasonably be deduced from tbe evidence. Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 358; Nash v. Royster, 189 N. C., 408, 127 S. E., 356.

Applying these principles to tbe facts in band, it would seem that tbe issues were properly for tbe jury. Tbe plaintiff and bis brother bad contrived to shun tbe defendant’s dog for a year or more, while delivering their papers. This was known to tbe defendant. So many complaints were made against tbe dog that tbe defendant finally gave him away. He bad attacked tbe plaintiff’s brother a year before, which was also known to tbe defendant. Taken in its entirety, tbe evidence appears sufficient to warrant an inference of tbe essential elements of liability. Tbe case is one for tbe twelve.

Beversed.