Appeal from the Municipal Court of Oak Park; the Hon. THOMAS
BARRETT, Judge, presiding. Reversed and remanded.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 23, 1964.
This is an action to recover damages for injuries inflicted upon the plaintiff by the defendant's dog. On April 3, 1963, plaintiff filed an amended complaint, the first count of which alleged that on or about May 14, 1961, the defendant, L.C. Risberg, was the owner of a dog, and the plaintiff, Andrew Beckert, was a minor of the age of three years and was incapable of committing contributory negligence. That on said date at or near 1130 S. Scoville Avenue in the Village of Oak Park, County of Cook, State of Illinois, said dog, without provocation, attacked the plaintiff causing divers injuries. That the defendant, L.C. Risberg, was guilty of not taking proper precautions to prevent injuries by his said dog and was liable for plaintiff's injuries under the provisions of ch 8, sec 12(d), Ill. Rev Stats, 1959. This count also charged a violation of a village ordinance, but the evidence failed to substantiate such violation. Count two added an allegation of negligence in that defendant, L.C. Risberg, failed to keep his dog properly secured. Plaintiff asked for thirty thousand ($30,000) dollars damages.
Defendant's answer, filed April 15, 1963, was in the nature of a general denial and, in addition, charged that if any injury was sustained by the plaintiff, it was "the proximate result of his own carelessness and negligence."
Defendant moved for a directed verdict at the close of plaintiff's case and again at the close of all the evidence. Plaintiff also moved for a directed verdict at the close of all the evidence. All of the above motions were denied, and the jury returned a verdict against defendant in the sum of nine thousand five hundred ($9,500) dollars with judgment being entered upon the verdict on June 19, 1963.
Defendant thereafter filed his post-trial motion which was denied on July 13, 1963.
Defendant appealed from the final judgment in this case praying for judgment notwithstanding the verdict, or, in the alternative, for a new trial.
Defendant's first contention is that it was error to give the following plaintiff's instruction in the language of the statute:
The court instructs the jury that as a matter of law that there was in force and effect at the time of the incident in the State of Illinois a statute which states as follows: If a dog without provocation attacks or injures a person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term "owner" includes any person harboring or keeping a dog. The term "dog" includes both male and female of the canine species.
Defendant relies on Supreme Court Rule 25-1 (a) (c 110, § 101.25-1, Ill. Rev Stats 1961) in support of his contention. That rule reads as follows:
Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law. . . . (Emphasis supplied.)
The following IPI instruction (promulgated prior to trial in the instant case) was not given.
At the time of this occurrence there was in force in Illinois a statute governing the responsibility of one owning, keeping or harboring a dog. That statute provides that (the owner of a dog) (a person keeping a dog) (a person harboring a dog) is liable in damages for injuries sustained from an attack or injury by the dog on a person peacefully conducting himself in a place where he may lawfully be (unless that person knew of the presence of a dog and did something a reasonable person should have known would be likely to provoke a dog to attack or injure him) (unless that person knew of the presence of a dog and the unusual and ...