
    Lena Sherer, Respondent, v. August Rischert, Appellant.
    St. Louis Court of Appeals,
    November 9, 1886.
    1. Appellate Procedure—Weight oe Evidence—In actions at law, appellate courts will not weigh the evidence where there is substantial evidence to suppoit the verdict.
    
      2. -Instructions.—An instruction which is correct as applied to the merits of the controversy, will not be declared erroneous because it is inartiñcially drawn.
    Appeal to the St. Louis Circuit Court, Daniel. Dillon, Judge.
    
      Affirmed.
    
    B. Scnurmacher, for the appellant,
    Joseph Jecko,' for the respondent.
   Lewis, P. J.,

delivered the opinion of the court.

The plaintiff sues for damages suffered by the bites-of a vicious dog owned by the defendant. On the defendant’s appeal from the judgment of a justice of the-peace, there was a verdict for the plaintiff in the circuit court for two hundred dollars.

The evidence shows that the plaintiff, a girl of thirteen years, was playing with her companions on G-eyer avenue, and, while on the public sidewalk, was seriously bitten in both legs by the defendant’s dog. There was-testimony that the dog had previously bitten a police officer twice, at different times ; once while in the same room with the defendant, who thereupon seized the animal and drove it out. Another policeman testified that, the dog had also attacked him, when he drove it away with his club. The witness had told the defendant about this, and had also told him about the dog’s trying to bite a newspaper carrier. Several witnesses for the defence testified that they had known and frequently seen the animal for a long time, and had never known of its attempting to harm any one. The defendant attested the peaceable character of his dog, which was generally permitted to run at large, but was kept within the yard at night time, and said that he had never been before informed of any injury done or attempted by the animal.

The court gave the following instruction for the plaintiff :

“ If the jury believe, from the evidence, that the defendant, August Rischert, was the owner and possessor of a fierce and dangerous dog, and permitted the same to run at large on a public highway in the city of St. Louis, to-wit, Greyer avenue; and that said dog, while so at large, did attack, bite, lacerate, wound, and injure the plaintiff, Lena Sherer, as set forth in plaintiff ’s petition ; and if the jury further believe from the ■evidence, that said dog, before the time of . the injuries inflicted on said Lena, had attacked and bitten other person or persons, and that said' defendant, Rischert, had notice or knowledge that said dog was disposed to bite persons before said Lena was so attacked and injured, their verdict should be for plaintiff.”

The only errors complained of are the giving of this instruction, and the refusal to set aside the verdict on the ground that it was contrary to the evidence. The instruction may be open to criticism in its reference to the plaintiff ’ s petition, but in this case the fault was harmless.

The verdict was supported by ample testimony, and the judgment is affirmed,

with the concurrence of all the'judges.  