In Trinity & S. Ry. Co. v. O’Brien, 46 S.W. 389 (Tex. Civ. App. – Galveston 1898, no writ), Mrs. Morgan, who was moving, brought her dog to the train station to be shipped on the train. She delivered the dog into the custody of the porter employed by the defendant, Trinity & S. Ry. Co. The porter tied the dog to a truck in front of the waiting room of the station in a spot where the dog could reach the door of that room. As fate would have it the plaintiff, “a young lady of twenty two or three” went to the station for the purpose of taking the train. She crossed the platform leading to the waiting room, placed one foot in the door of that room, and was attacked by the dog. She was bitten on the inside of the upper portion of a thigh. A jury trial resulted in a verdict and judgment for the plaintiff in the amount of $8000 for actual damages and $2000 exemplary damages. The judgment for the plaintiff was reversed and remanded.
One issue on appeal involved damages for mental anguish. The trial court allowed the plaintiff to testify that her doctor stated she was in danger of hydrophobia, lockjaw, and blood poisoning, and to the effect which this had on her mind. On appeal the court stated: “[m]ental suffering resulting proximately from the bite of the dog formed an element of damage… but the inquiry should have been confined to the proof of such suffering, without bringing in the statements of others of facts which were calculated to mislead the jury.” Id. at 391.
Witnesses testified that the dog was vicious and inclined to bite. Other evidence was introduced by the plaintiff to show the dog’s general reputation in the community. Defendant objected. The court stated:
In considering this question, the jury, we think, were entitled to know that the dangerous character of the dog was so well known that appellant’s agents would have learned it had they made any effort to do so. Besides, the notoriety of the animal’s viciousness, if it be a fact that its viciousness was notorious, is a circumstance which is admissible as tending to show notice to the agents who lived in the town. As to its weight we express no opinion. Id. at 392.
The final issue involved the charge given to the jury. In reversing and reminding the judgment, the court stated:
We think the proper way to submit the case is to leave it to the jury to say whether or not, under all the circumstances, the defendant was guilty of negligence in fastening the dog at the place where he was tied; and, in passing upon this, they should be allowed to determine for themselves the effect to be given to the evidence tending to prove notice, as well as the effect of notice or the absence of notice of the viciousness of the dog. The question is not, in all respects, the same as arises where it is sought to hold the owner of a dog responsible for injuries inflicted by it, merely because of his having kept a dangerous animal. Whether or not the duty of using due care to keep its station free from danger to those having the right to go there was violated by putting such an animal in such a situation without knowledge as to the danger to result is one of the questions involved, and it is a question for the jury to decide. Id. at 393.