Gray v. Clark , 13 N.C. App. 160 ( 1971 )

PARKER, Judge.

Section 3-22 of the Code of the City of Charlotte makes it “unlawful for any dog owner to keep or have within the City” a dog of the type described. Nothing in the Section restricts its application to those dog owners who know or in the exercise of due care should know that their dogs are of that type. Scienter is not an essential element of the unlawful conduct proscribed by the Ordinance. It was, therefore, error for the trial court to add such a requirement, and appellant’s assignment of error to the court’s instruction to the jury must be sustained. Sink v. Moore, 267 N.C. 344, 148 S.E. 2d 265, cited and relied on by defendants, is not here controlling. In Sink our Supreme Court was dealing with the common law rule applicable to the owner or keeper of a dog and no statute or city ordinance was involved. Under the common law rule, to recover for injuries inflicted by a domestic animal it was necessary to show not only that the animal was dangerous but also that the owner or keeper knew or should have known of its vicious propensity. Under the City Ordinance here involved, proof of scienter is not required.

On the previous appeal of this case, this Court held that the City had authority to adopt Section 3-22. The opinion viewed the Ordinance as having been enacted for the safety and protection of the public, so that its violation is negligence per se, citing Bell v. Page, 271 N.C. 396, 156 S.E. 2d 711. Appellees now strongly urge that we reconsider our previous decision, vigorously contending both that the City lacked power to enact the Ordinance and that, even if it had such power, nothing in the Ordinance demonstrates that it was enacted for the public safety. In view of the fact that our Supreme Court denied appellees’ petition for writ of certiorari to review our previous decision, we do not think it proper for this Court now to undertake such a review. Moreover, in our opinion appellees’ counsel views the Ordinance too narrowly; in these days of congested city streets a dog which “habitually or repeatedly” chases passing vehicles can add substantially to traffic hazards.

While plaintiff’s evidence was meager that defendants’ little dog was of the type described in the Ordinance, when viewed in the light most favorable to the plaintiff the evidence was sufficient to require submission of the case to the jury.

For the error above noted in the court’s charge to the jury, plaintiff is entitled to a

New trial.

Judges Britt and Morris concur.