No. 93 March Term, 1979, Appeal from the order of the Court of Common Pleas, of Union County, Civil Action, Law, at No. 696, 1977.
Frank E. Garrigan, Shamokin, for appellant.
Mary Jane Forbes, Harrisburg, for appellee.
Cercone, President Judge, and Watkins and Montgomery, JJ.
[ 285 Pa. Super. Page 560]
This is an appeal from the order of the Court of Common Pleas of Union County denying the plaintiff's motion to take off a compulsory non-suit.
On February 29, 1976, James G. Snyder, was a 9 year old boy, who was working at a Flea Market located along Route 15, Kelly Township, Union County, Pennsylvania. Adjacent to the Flea Market across a small rural road was the defendant's place of business known as Milton Auto Parts, Inc., engaged in the business of scrapping used automobiles and salvaging the parts. The business occupied approximately nine acres and is enclosed by a fence. Inside the fence were maintained several large watchdogs.
On February 29, 1976, the minor James Snyder had just completed assisting a patron of the Flea Market in loading his purchase into the trunk of his car and was returning from the parking area to the flea market when he heard something following him. When he turned, a large brown dog, being one of the dogs from the Milton enclosure, lunged at him and grabbed him by the throat. The boy was knocked to the ground resulting in physical damage to his neck, hand and armpit.
The dog was chased away by the owner of the flea market and the boy taken to the hospital where he spent three days.
The court below held that the evidence was insufficient to establish defendant's prior knowledge of the dog's vicious propensities and entered a compulsory non-suit. Timely motion was made to have the non-suit taken off and was denied by the court below. This appeal followed.
The law of Pennsylvania placed the burden of proof of prior knowledge by the owner of a domestic animal's vicious propensity upon the plaintiff. "[t]he owner of a dog is not responsible for the consequences of the dog's bite if he has no reason to know the viciousness or dangerous propensities of the dog beforehand." (Cases cited) Freeman v. Terzya, et al., 229 Pa. Super. 254, 323 A.2d 186 (1974); Clark v. Clark, 207 Pa. Super. 193, 215 A.2d 293 (1965).
[ 285 Pa. Super. Page 561]
The question to be decided is whether or not the injured boy has produced any evidence from which a jury could conceivably find that the owner of the dog which attacked the minor, had prior knowledge of its dangerous ...