Boyd

Action for damages alleged to have been suffered by plaintiff from the bite of a dog owned and kept by defendant, it being alleged that the dog was vicious, and accustomed to bite mankind, of which defendant had notice, and that plaintiff was bitten in consequence of the negligent manner in which defendant kept the dog.

The answer admits that defendant owned and kept the dog, but denies all other material averments of the complaint, and, as an affirmative defense, alleges “ that if the plaintiff had used ordinary caution,” he could have avoided coming in contact with the dog. This seems to have been intended as an averment of contributory negligence on the part of the plaintiff.

The verdict of the jury was in favor of the plaintiff, assessing the damages at $450, according to which judgment was rendered.

Defendant appeals from the judgment, and from an order denying his motion for new trial.

1. The first and principal point urged here by counsel for appellant is, that the complaint fails to state a cause of action, because it does not negative contributory uegli *512 gence on the part of the plaintiff, and therefore that defendant’s demurrer to the complaint and his motion for…