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CLARK v. CLARK (12/16/65)

decided: December 16, 1965.

CLARK, APPELLANT,
v.
CLARK



Appeal from judgment of Court of Common Pleas of Warren County, August T., 1960, No. 47, in case of Alice M. Clark v. Kenneth H. Clark et ux.

COUNSEL

Harold S. Hampson, with him Joseph H. Goldstein, and Hampson and Hampson, for appellant.

Robert L. Wolfe, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Hoffman, J. Montgomery, J., dissents and would affirm on the opinion of the court below.

Author: Hoffman

[ 207 Pa. Super. Page 194]

Plaintiff, Alice M. Clark, brought an action in trespass for damages from personal injuries sustained when she was knocked down by a dog. Defendants,

[ 207 Pa. Super. Page 195]

Kenneth H. Clark and Evelyn L. Clark, are the owners of the dog. The jury returned a verdict of $3,000 for plaintiff, but the court granted the defendants' motion for judgment n.o.v.

In considering the propriety of a judgment n.o.v. we must adhere to the well-established rule that the verdict winner is entitled to the benefit of all favorable facts and inferences, Groner v. Hedrick, 403 Pa. 148, 169 A.2d 302 (1961), and that any conflict in the evidence must be resolved in her favor.

Before leaving on a vacation trip, defendants shut their dog in their garage with food and water and agreed with plaintiff that it would be entrusted to her care during their absence. On the following day, in accordance with this understanding, plaintiff drove to defendants' garage for the dog. When she opened the garage door, however, the dog immediately ran out to the back end of the lot. Plaintiff called to the dog, whistled, and then started to return to her car. While she was walking around the garage, the dog ran up behind her and struck her forcibly at the back of the knees. Plaintiff fell and fractured her left hip. At the time of this incident, the dog, a female Scotch Collie, weighed approximately forty to fifty pounds and was about eight months old.

The principles which control the present case were set forth in Groner v. Hedrick, supra. The plaintiff there was injured by a Great Dane which jumped upon her and knocked her down. The evidence showed that the owners were aware that the dog had jumped on people on previous occasions. The jury returned a verdict for the plaintiff, but the trial court granted a judgment n.o.v. The Supreme Court reversed and indicated that there was no doubt that the evidence was sufficient to establish defendant's negligence.

The Court held that: "A large, strong, and over-friendly dog may be as dangerous ...


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