1. In this suit the plaintiff, Prokash Kumar Mookerjee, who is a little boy of about seven years of age and a son, of Punchanan Mookerjee, an officer on the Appellate Side of this Court, sues one A. D. Fordyce Harvey to recover damages for injuries he sustained by reason of being bitten by the defendant's dogs.
2. It appears that Mr. Harvey has always kept dogs, and in August last, he purchased a dog of the breed known as Great Danes, two of which breed were produced in Court and which are dogs of great size. In September, one Mr. Duft came to Calcutta and Mr. Harvey bought another Great Dane from him. Mr. Duft had three puppies of a similar breed of the age of about five months and wished to dispose of them as he was about to return to America; and to oblige him, Mr. Harvey also bought the three puppies, and thus at the date when the plaintiff says he was bitten, Mr. Harvey had five Great Danes. These dogs were left in the charge of one Deno, a sweeper, employed by Mr. Harvey to feed, tend and exercise them. It appears to be the essential portion of the sweeper's duties to exercise the dogs, though Mr. and Mrs. Harvey on certain occasions took them out alone.
3. On the 25th of January 1909, the sweeper about 4.30 p.m., took the five dogs to the Ballygunge maidan and there some at any rate, if not all, the dogs attacked and bit the plaintiff very severely and the plaintiff, therefore, brings this suit. The evidence for the plaintiff is that he and his bearer were going on to the maidan when they saw the sweeper seated on the ground having three dogs chained, the other two dogs being loose. The three that were chained were held by Deno, who had placed his foot on the ends of the chains and was sitting down smoking; one of the dogs then ran towards the plaintiff, who was very alarmed and ran to the other side of the bearer and the dog followed and then the bearer took the child in his arms and covered him with his clothes and the whole five dogs there bit and scratched the plaintiff. On the other hand, the sweeper says that all five dogs were chained, that when the plaintiff and his bearer were about twenty yards off, he saw them and warned them not to come any nearer, and that they took no notice and continued' to advance and the child commenced to cry and two dogs, becoming excited, broke away and ran towards the plaintiff and the bearer then concealed the child under his clothes and the dogs tore the clothes and bit the child.
4. There is one tiling that is common to the evidence of each side and that is that the bearer covered the child with his clothes. It is not easy to understand why the bearer should have continued to advance if he was warned as the sweeper states. I have come to the conclusion that the story as told by the plaintiff and his bearer is the correct one. I think that the bearer displayed considerable courage in acting as he did.
5. This being so, the only question is as to whether the defendant had knowledge of the dog's dispositions. Evidence on this point is given by one Grish Chandra Pal, a tutor, who says that the dogs had chased one of his boys from the Bishop's Collegiate School and he had to call on the other boys to get ready to use their hockey sticks, but the evidence is not clear as to whether the dogs were savage or were merely playing. The statements of the defendant's sweeper have to be considered very carefully. First of all, we have the fact that the sweeper told the bearer not to bring the child any nearer. How was the child in danger unless the dogs were likely to bite him? The evidence of the sweeper is that, if the dogs were taken down a street and found a child crying and pulling its parent's clothes, by no means an unlikely occurrence, they would be likely to bite the child.
6. The defendant's sweeper had taken the dogs near a portion of the Ballygunge maidan which is a recreation ground for numerous children and he must bear the consequences of what happened.
7. I think the judgment which has been cited to me in Barnes v. Lucile, Ltd. (1907) 23 T.L.R.; 389 : 6 S.E.C. (N.S.)5 applies only to cases where the person who has been bitten has done some act to provoke the dog. In this case, the only act of provocation seems to be that the plaintiff cried on the Ballygunge maidan, and I think, he was quite as justified in so doing as the defendant was in bringing five large dogs there.
8. Having taken this view, it is not necessary to consider the evidence of Oori syce who has stated that he was bitten by the dogs, though, I must take exception to Mr. Stokes's statements that no reliance is to he put on the evidence of such men. In some cases, I think, even the evidence of syces may be true.
9. I think, there is sufficient evidence to show that the dogs were likely to bite mankind without provocation.
10. There now remains the question of damages and the evidence of the plaintiff's father is that he has spent from Rs. 500 to Rs. 600 on medical attendances and travelling expenses. Mr. Stokes seemed, at first, inclined to challenge the fact as to whether it was proper to go at once to Kasauli. No one can have any doubt but that, in the circumstances, the plaintiff was justified in going at once to Kasauli. Mr. Stokes, however, has abandoned this attitude. The plaintiff is, therefore, entitled to recover his expenses and those incurred by his father and mother,' as having regard to his age, they were necessary persons to proceed with him to Kasauli. The other question is as to the amount of general damages and there is very little evidence before me on the point. The plaintiff has not been as well as he was before the accident, but there is no evidence to show that this is the result of being bitten and I think it will meet the case if I give the plaintiff a solatium of Rs. 400 for the pain and suffering he has undergone and a further Rs. 600 to reimburse his father his costs and expenses of travelling and medical necessities. I, therefore, give judgment for the plaintiff for Rs. 1,000 together with costs on scale No. 2.