UPSET BY A DOG

New Zealand Herald, Volume LXXI, Issue 21880, 16 August 1934, Page 15

UPSET BY A DOG

2°MUNG WOMAN'S INJURIES °®/VNERSHIP NOT PROVED ti-miM FOR DAMAGES FAILS * ■claim for damages arising out of an alleged to have been caused by * " as brought before Mr. Justice H'l* in the Supreme Court yesterday. Til® elaini was made by Mi's. Alma May P p «hir (Mr. Schramm) against John Pjfirick Kirwan. of Auckland, telegraphist (Mr. Henry). The accident happened on March 26. Plaintiff, who was walking along Parnell Road at about 9 p.m. alleged that a dog owned by defendant rushed out and attacked her so that she fell to the ground and received a compound fracture of the right leg and a severe nervous shock. She was in the Public Hospital for four davs and required to be nursed for H weeks. She claimed £•!! IPs 6d special damages, including £'2B for nursing, and £2OO general damages. The defendant denied that he was the owner of any dog and alleged that if the plaintiff suffered any injury it was brought about by her own negligence. Plaintiff Tells Her Story The plaintiff said she was walking p;*st Kirwan's shop when the dog rushed out from the shop at her. She went to avoid it and it ran between her legs and threw her to the ground. She bad known the dog for more than two years and had seen it in and about the doorway of Kirwan's previous shop and his present premises In cross-examination witness said that the dog barked and yelped and she thought it was going to bite, but it ran away down a right-of-way j)ast Kirwan's. She was put in a taxi and taken ,to a doctor's. The dog that rushed at her was a little black spaniel, with a small piece/of white on its neck. Mrs. Vera Rowe said she saw the dog rusft out from Kirwan's doorway at the plaintiff, who spun round and fell. The dog was a long-haired, flop-eared animal similar to the one in a photograph produced. Charles Amdt, musician, who had been with/ the previous witness, said the dog was a black spaniel. A brother of the plaintiff, Sidnev Anderson, hairdresser, said that Kirwan had owned a black spaniel for about, four years. Witness identified the dog as that shown in the photograph. Case For The Defence Mr. Henry said the clog shown in the picture was a stray, but it was not denied it had been a good deal-about Kirwan's premises. The dog was in the house all the evening in question until defendant put it out at 9.20 p.m. and shut it np in the wash-house. The defendant said that, on the evening of March 26 he was at home writing. A stray dog had been about the premises for 18 or 20 months, but it was never registered. It was underneath his table from about half-past seven that evening until about half-past nine, when he put it in the washhouse for the night. The dog was in the closed back yard next morning. There were quite a number of cocker spaniels in the neighbourhood. The dog that was about his place was taken away by an inspector in April.

In cross-examination witness said he had no idea why the dog had been destroyed a week after the accident. There had beeta no-complaints about it. The wife of the defendant said that the dog had .not been outside the premises on the evening of the accident.

Logan Campbell Watson said that immediately after the accident Mrs. Peglar had said, "I tripped over the dog and hurt my leg." She said nothing about having been attacked by a dog.

His Hojaor said he would accept the plaintiff's evidence as to the manner in which the accident happened. The dog was of unusual character and should be easily identified, but the circumstances under which the plaintiff identified it were not normal. Even standing alone the plaintiff's identification was weak and when set against the defendant's evidence that the dog was shut up all the evening it was further weakened. The plaintiff had not proved that the dog that caused the accident was the one in possession of Kirwan. Judgment would he for defendant with costs according to scale.