Mondry v. Maloney , 289 Minn. 539 ( 1971 )

Per Curiam.

This is a dog-bite action by plaintiffs James M. Mondry, a child, and Howard J. Mondry, his father, against Donald J. Maloney, owner of a dog, brought pursuant to Minn. St. 347.22, which provides in part:

“If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be in any urban exea, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.”

Plaintiffs moved for judgment notwithstanding the jury’s verdict for defendant or for a new trial, on the sole ground that, as a matter of law, there was no provocation for the dog to bite plaintiff child. The motion was denied.

We hold that whether provocation existed was an issue of fact properly submitted to the jury under appropriate instructions in the words of the statute. The sole testimony to support plaintiffs’ burden of proof was the uncontradicted testimony of plaintiff child. But the jury was not compelled to give full credit to his testimony without considering either the internal inconsistencies in the testimony or the external inferences of improbability to be drawn from the physical facts and circumstances disclosed by the record. Backman v. Fitch, 272 Minn. 143, 137 N. W. (2d) 574.

Affirmed.