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Perkins v. Drury, 57 N.M. 269, 258 P.2d 379, 1953 -NMSC- 029

Facts

The incident occurred on August 1, 1950, when the plaintiff, her husband, and their two daughters visited the defendant's garage for car repairs. While the parents were working on the car, the younger daughter, Sharon, was attacked by the defendant's dog, Pancho, which had a known tendency towards viciousness, especially towards small children. The attack resulted in severe injuries to Sharon, requiring medical treatment and leaving permanent scars.

The defendant owned certain property at 900 West Hobbs Street in the city of Roswell on which he maintained a home as well as an automobile repair garage which at the time in question was rented to other parties but was generally open to the public and as well to two cocker spaniel male dogs of defendant.

Issue

Did the defendant have knowledge of the dog's vicious propensities, and was he liable for the injuries inflicted on the minor child?

The sole question raised on the appeal is whether the evidence supports the finding by the trial judge that the vicious propensities of the dog making the attack on the little child, under two years of age, were known to defendant.

Rule

A dog owner is liable for injuries caused by their dog if they have knowledge of the dog's vicious propensities and fail to take reasonable steps to restrain the animal.

If the dog was vicious or possessed dangerous propensities and this fact was known to defendant, that ends the matter.

Analysis

The court determined that the defendant had actual knowledge of the dog's vicious nature, as evidenced by his warnings to others to keep children away from the dogs. The trial judge found that the defendant's failure to confine the dog or take other protective measures was the proximate cause of the injuries sustained by the child. The court emphasized that the owner's knowledge of a dog's dangerous tendencies can be inferred from their behavior and the owner's actions.

We have sifted the testimony carefully and have no hesitancy in saying it supports the inference the trial judge drew that the defendant knew the dog was vicious and dangerous to children.

Conclusion

The court affirmed the trial court's judgment, holding that the evidence supported the finding that the defendant knew of the dog's vicious propensities and failed to act accordingly.

The judgment is without error and should be affirmed.

Who won?

The plaintiff prevailed in the case because the court found sufficient evidence that the defendant was aware of the dog's dangerous tendencies and did not take appropriate measures to prevent the attack.

The trial court found the defendant had knowledge, or as a reasonable person should have had knowledge, that the dog had a tendency toward viciousness, especially toward small children, which tendency was brought about by jealousy.

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