Appeal, No. 91, Jan. T., 1961, from judgment of Court of Common Pleas of Chester County, April T., 1958, No. 60, in case of Bertha Groner v. Frank W. Hedrick et al. Judgment reversed; reargument refused April 20, 1961.
G. Clinton Fogwell, Jr., with him Jacques H. Fox, and Reilly and Fogwell, and Johnson, Fox, McGoldrick & Prescott, for appellant.
Lawrence E. MacElree, with him Richard Reifsnyder, and MacElree, Platt & Marrone, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK.
First Friend, as Kipling called Wild Dog, was in this case a large Great Dane named "Sleepy". It jumped up on the plaintiff, who was seventy-four years old, five feet two in height, and 105 pounds in weight, and knocked her down so that she broke her arm and leg. The jury gave her $17,000 but the court
below entered judgment for defendants n.o.v., on the theory that plaintiff had assumed the risk of Sleepy's temperament. A motion for a new trial was also filed but not disposed of.
What happened was that defendants hired plaintiff to come and be housekeeper and companion for Mrs. Stanley, Mrs. Hedrick's mother, while Mrs. Hedrick went to Europe. Mr. Hedrick stayed behind. The term of employment was five weeks at $100 or $125, and the accident happened after she had been on the job four weeks. She carried a little whip "because he acted as if he was inclined to jump. I was afraid he would jump and knock me over." She also took hold of things when the dog was near, to steady herself, and once, when she told Mr. Hedrick that she was afraid Sleepy would jump on her, he replied: "Be careful; he might." He jumped or brushed against her on several occasions. She said: "I don't think he was vicious. I'm not sure", and that nothing but his jumping indicated that he was trying to hurt her. He did not growl. Another witness, who said that the dog had jumped on her twice, called him "friendly".
On the day of the accident, plaintiff and her patient were preparing to sit down to lunch when Mrs. Stanley asked her to let Sleepy in, in order to keep him off the highway. She called him from the porch, and "when he got beside me I started to go inside the house with him, through the living room door, and that is when he just turned suddenly and just jumped on me... he just went past me, then he suddenly turned and jumped." By jumping she meant that the dog "raised up with his front paws against here... left shoulder, left chest" He often put his paws up when plaintiff sat on the sofa, and she kept a rolled magazine to keep him away.
We have no doubt that enough appears to establish defendant's negligence, and ...