#### Victoria Boyrezka, Appellee, v. Thomas Janowski, Appellant.

Gen. No. 18,380.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. John McNutt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.

Affirmed.

Opinion filed October 9, 1913.

*98Abstract of the Decision.

1. Animals, § 40 * —scope of averments charging negligence of owner of dog. A count in a declaration averring negligence of defendant in suffering a dog “to run at large without taking due and proper care to secure the same,” held to permit recovery for failure to guard or securely muzzle the dog.

2. Animals, § 48*—when instruction may ignore defense of contributory negligence. Instruction permitting recovery for a dog bite may ignore defense of contributory negligence where the evidence does not tend to prove such a defense.

3. Animals, g 48*—when instruction as to damages not improper. An instruction on measure of damages for a dog bite limiting the jury to the consideration of injuries and damages as shown by the evidence, held not to authorize recovery for injuries which cannot he legally considered where no evidence of injuries of that character.

4. Trial, § 233*—when declaration may be taken to jury room. Court may permit the declaration to go to the jury room where the instructions are so framed as to be meaningless to the jury without it.

5. Instructions, § 111*1—when not objectionable permitting recovery on eliminated counts. Instruction permitting recovery if jury believes plaintiff was injured “in manner and form as set out in plaintiff’s declaration, or any count thereof,” held not objectionable as permitting a recovery under a count eliminated by a specific instruction.

Statement of the Case.

Action by Victoria Boyrezka against Thomas Janowski to recover for injuries sustained by plaintiff from a bite by defendant’s dog. From a judgment for plaintiff for five hundred dollars, defendant appeals.

Royal W. Irwin and Frank W. Koraleski, for appellant.

F. W. Jaros, for appellee.

*

See Illinois Notes Digest, Vois. XI to XIV, same topic and section number.

Mr. Justice Fitch

delivered the opinion of the court.