MAN AND A DOG.

New Zealand Herald, Volume LXIX, Issue 21130, 12 March 1932, Page 2 (Supplement)

MAN AND A DOG.

AIREDALE THAT WAS BOR£D.

BROKEN MOTOR-CAR WINDOW.

NO REDRESS FOR LOSS OF EYE.

An unusual appeal case concerning » motor-car, a dog arid the loss of a man's eye, was heard by the House of Lordj, in January. The appeal was from a decision of the Court of Appeal allowing the defendant's appeal from verdict and judg. ment in an action tried by Mr. Justin Talbot and a common jury. The action was brought by Mr. Oliver George Fardon, an engineer's mechanical draughtsman, against Mr. Seward Har-court-Rivington, for damages for personal injuries resulting in tho loss of the pl a i n . tiff's eye. On the evening of April 4, 1929, the plaintiff had parked his motor-car in t London street, and was walking pag* t saloon motor-car, which was also parked with its back to the kerb, when, he alleged, a large Airedale dog, which had been barking and jumping about in the saloon car, smashed the glass panel in the rear of tho car. A splinter of the broken glass entered the plaintiff's left eye, which had to be operated on and removed four days later. The plaintiff alleged that lhe defendant was negligent in parking ihe motor-car, in placing the dog in the saloon, and in leaving the motor-car nnd dog unattended on the public highway. He alleged that defendant was also negligent in failing to tie up or secure the,dog in a safe a?d proper manner. The defendant denied negligence. The jury found for the plaintiff and awarded him £2OOO damages. Defendant's appeal to the Court of Appeal was allowed, that court holding that th e plaintiff could not recover. The plaintiff r.ow appealed to the House of Lords. When a Dog Earks. OjMr. M. O'Connor, in opening the appeal, said that what was urged for the defendant in the Court of Appeal was that the judge failectfto direct the jury that they must be satisfied that Mr. HarconriRivington's dog had previously attempted to jump ; put of the windows of motorcars, and that its owner knew of its predisposition, or that he might reasonably have anticipated that it would attempt to break the glass. It was also there contended that the damages were too remote in law.

Mr. Harcou ri-Rivington's case was that for two and a-half years he had owned the dog and left it in cars, and that it had always been quiet and docile.. Counsel suggested that the dog was angry. Lord Dunedin said that a dog wa not necessarily angry when it barked. He had a large acquaintance with dogs and knew them well.

Lord Warrington: I have a dog that begins to bark most furiously whenever he is taken for a walk. Mr. O'Connor: But this dog was infuriated.

Lord Dunedin: Dancing about and barking furiously is not for a dog the same thing as being infuriated. If a dog is well trained and has a wish for anything, he. indicates his preference modestly at £rsfc. If he is disregarded he may make a great noise about it* but he is only adopting his proper means of drawing attention. Lord .Warrington; This dog was .quite used to being taken out in cars. Lord Dunedin: And was just as likely to be irritated by being left 60 long unattended as to be irritated by passers-by. That is one of the results an owner might have thought probable if he left a dog alone in a closed car for long.

The Broken Panel. Lord Atkin: The panel which was broken at the back of the car was sin. high. On the question of negligence, i» its owner to suppose that the dog will jump 'at that window and break it ? Lord Warrington: I agree that whea one turns from the propensity of animals to tho problem of the negligence of owners, there are difficulties in proving this case. Lord Dunedin (to Mr. O'Connor): Have you come here to argue that it is negligent to leave a dog in a car ? Mr. O'Connor answered that he had. Lord Dunedin: Would you say the same of a fidgety small boy ? Mr. O'Connor replied that ho should argue the same. No one should leave a dog for an hour in a saloon car without recognising that it might cause damage or loss to a third party. The same precaution should be taken with a small boy. One could never be certain what would happen next. Lord Macmillan said that the law of the angry dog was modified by the fact that a man must not add something to make it vicious. A dog plus cracker tied to his tail was in a special case. Similarly, a dog plus a chain, when he went roaming, might do damage. !Mr. O'Connor: Or a dog plus a motorcar.

The Doctrine ot Freedom. Lord Dunedin: The dog plus a motorcar, to come within the law, must be the creation of a clanger which does not exist by nature, like confining water in a reservoir; or else you must face the question of negligence. To avoid negligence an owner must provide only against sucn damage as he may reasonably fore«*6. Sir. O'Connor submitted that the Court of Appeal went wrong when they paHso much attention to the doctrine of freedom which the law applied to domestl- - animals. It had no bearing whatever on the question of liability in tins case. A person who left a dog unattended in a saloon motor-car must be liable. Lord Atkin: To make him liable you must require him to foresee not only the glass getting broken, but the possibility of breakage in such circumstances that a passer-by would be injured. The law do? 3 not require more of anyone than reasonable precaution against what a reasonable man could foresee.

Mr. O'Connor argued that it was not a natural thing .to take a dog in a motor* car, any more than on horseback or i an aeroplane, and if it was there t >' l6 Biost take into account its natural propensity to jump. Lord Atkin : There are dogs so sopm- 1 cated and human that their most natura place is by the fireside. Why should no some of them be at homo in a motor-car and like to be there ? Is not the broke glass pure accident ? Dismissal of Appeal. -J Lord Dunedin, in giving judgment, sai that the defendants went motoring wi tlie very usual companion of an Aireoa dog. The dog had no vicious piope sities. The owners stayed a long tini away, and before they came back the had jumped about in the car and bro" a window. . Dogs got bored, just as human beinfi did, and the bark was the dog s ordinary expletive. The dog might have . ® irritated by passers-by wlio spoke to in a way that a well-bred dog would sider an insult. •_ Xo one could be expected to fores , the circumstances, that the dog ring l « the window at such an angle that a p of glass would be projected- into the . of a passer-by. . • u There was 110 neglected jM.V J could be fastened on the defendant.. Persons were required by law t<3 g < against reasonable probabilities, bu not bound to guard against fantasy possibilities.