delivered the opinion of the court:
Plaintiff Richard Stehl filed suit in the Circuit Court of La Salle County against defendant Ronald Dose to recover for permanent injuries resulting from a dog bite. According to the evidence adduced at the jury trial, defendant owned a 100-pound German shepherd which he kept tied on a 25-foot chain in front of a machine shed on his farm. Defendant wanted to get rid of the dog because he was afraid his young son might get within the dog’s reach. When plaintiff heard about defendant’s dog, he offered to take the dog since he needed a watch dog for his construction business. Plaintiff was familiar with German shepherds and had been around them all his life.
On December 5, 1975, plaintiff saw defendant’s hired man, George True, in a restaurant, and the two men agreed that plaintiff could pick the dog up that afternoon since True would be working at the farm. Plaintiff arrived with a bag of food scraps which he gave to the dog. The dog took the bag 3 or 4 feet inside the perimeter of his chain where he ate the food. Plaintiff talked to the dog and petted him. While the dog was eating, plaintiff stepped inside the circle and knelt on one knee a short distance from the dog. The dog would eat some and then would come over to plaintiff and lick his hand, and plaintiff would pet him. This happened several times. True said he would go find a piece of rope, and while plaintiff’s head was turned away from the dog, the dog attacked, sinking his fangs into plaintifFs right forearm. In the process of pulling loose from the dog, plaintiff’s arm was ripped open in two places. Because of the length of the wounds, it was necessary to stitch the lacerations closed, and afterwards, the arm became infected. After extensive medical treatment, plaintiff continues to have considerable pain and swelling and experiences difficulty when he. tries to use his right hand.
At the conclusion of all the evidence, the trial judge denied defendant’s motion for a directed verdict and submitted the case to the jury which returned a verdict in favor of defendant. Plaintiff appeals.
This cause of action was predicated upon section 16 of the Animal Control Act (Ill. Rev. Stat. 1977, ch. 8, par. 366), which provides:
“If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in a place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.”
Plaintiff first argues that there was no evidence of provocation and thus defendant was liable as a matter of law and, secondly, that the verdict in favor of defendant was contrary to the manifest weight of the evidence.
In submitting this case to the jury, the trial judge observed that the only factual issue was whether there was provocation for the dog’s attack. Plaintiff discusses several cases where such actions as kicking or stepping on a dog’s tail were held to be provocation, and then concludes that defendant’s dog made a vicious attack upon plaintiff which was out of all proportion to plaintiff’s peaceful and friendly acts. Plaintiff fails, however, to come to grips with the question which is actually the crux of this case: Was it provocation within the meaning of the statute for plaintiff, acting in a peaceable manner, to cross the perimeter of the dog’s chain and to enter the territory which the dog was protecting and to remain within the dog’s reach while he was eating? Plaintiff testified that the dog barked as he approached and that he knew the dog was protecting his territory. Consequently plaintiff proceeded slowly and spoke softly so as not to excite the dog.
Provocation was defined in Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 344 N.E.2d 268, where the plaintiff claimed that accidentally stepping on a dog’s tail was not an intentional act and could not be provocation within the statute. The court stated:
“Provocation is defined as an act or process of provoking, stimulation or incitement. (Webster’s Third New International Dictionary 1827 (1961).) Thus it would appear that an unintentional act can constitute provocation within the plain meaning of the statute.” 36 Ill. App. 3d 130, 131, 344 N.E.2d 268, 270-71.
Under the statute plaintiff was required to prove: (1) an attack by defendant’s dog; (2) injury to plaintiff; (3) absence of provocation; and (4) that plaintiff was conducting himself peaceably in a place where he had a legal right to be. As we analyze the evidence in the record, plaintiff clearly established that he was behaving in a peaceable manner, that the owner of the property had invited plaintiff to come upon the premises for the purpose of taking the dog, that defendant’s dog attacked, and that plaintiff was injured. However, whether plaintiff’s conduct amounted to provocation is not clear. Reasonable men would differ, and accordingly, we view this issue as one especially suited to jury determination. (Cf. Sobatta v. Carlson (1978), 65 Ill. App. 3d 752, 382 N.E.2d 855.) Because we think the evidence would support a finding either way on the issue of provocation, we hold that the verdict was not contrary to the manifest weight of the evidence.
We believe it important to note that the question of what conduct constitutes provocation is primarily a question of whether plaintiff’s actions would be provocative to the dog. Thus, neither the fact that plaintiff had the owner’s permission to approach the dog nor the fact that plaintiff was conducting himself in a manner approved by the hired hand are matters bearing on the issue of provocation.
Plaintiff also argues that the jury’s verdict was the result of bias and prejudice and indicates that plaintiff was denied a fair trial. Since he cites nothing in the record to substantiate his charge, other than the unfavorable verdict, we conclude that this argument is totally without merit.
Plaintiff assigns as error several rulings made by the court during trial. The court excluded evidence offered by plaintiff concerning how the dog behaved after the attack on plaintiff, what plaintiff thought it meant when a dog wags its tail, and whether this dog had previously bitten someone. Plaintiff insists this evidence was erroneously excluded, but, as defendant points out, this evidence was not relevant. In an action under this statute, the past history of the dog or any inherent viciousness is not an issue. (Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 344 N.E.2d 268.) It is argued that evidence of a dog’s prior viciousness was approved in Steichman v. Hurst (1971), 2 Ill. App. 3d 415, 275 N.E.2d 679, but that case differed substantially from the instant case because there one of the factual issues was whether the plaintiff, a mail carrier, was acting reasonably in spraying an attacking dog with “Halt.” The dog had harrassed plaintiff on earlier occasions. The court found that the plaintiff’s acts were reasonable measures for self protection and upheld the jury verdict in favor of the plaintiff. Furthermore, the admissibility of evidence of the dog’s earlier conduct apparently was not questioned. None of the excluded evidence here tended to prove an element of plaintiff’s cause of action, and the refusal to admit this evidence was not an abuse of the court’s discretion.
Plaintiff also argues that the trial court erred in refusing to give the following instruction concerning provocation: “Provocation as a defense exists only when the dog’s reaction is a reasonably expected response to the actions of the Plaintiff.” Under the statute, plaintiff has the burden of proving the absence of provocation as an element of his case; hence it would be incorrect to instruct the jury that provocation is a defense. The instruction was rightly refused.
Plaintiff also contends that defendant’s attorney made several improper comments during closing argument which were not based upon facts in evidence and which were highly prejudicial. Since both parties waived the presence of a court reporter during closing argument, no transcript was made. Plaintiff presented a bystander’s report to the trial judge, pursuant to Supreme Court Rule 323(c) (111. Rev. Stat. 1977, ch. 110A, par. 323(c)), but the trial court refused to certify the proposed report. The court observed that a reporter had been available so that an accurate transcript would have been easily obtainable had plaintiff so desired. The court also stated that plaintiff made no objections during defendant’s final argument and that the proposed report was not accurate and did not contain statements made by counsel but rather suggested “generalized conclusions” which in fact were not arguments made at trial.
It is apparent the trial court refused to certify the proposed bystander’s report because it was not an accurate report of proceedings. On the basis of the record, we cannot say that the trial court was wrong. A trial judge should never certify a report he knows to be incorrect or inaccurate. Since it was not error to refuse to certify the bystander’s report, there is no record on appeal of closing arguments, and without a record we have no means of reviewing the alleged errors.
For the reasons stated, we affirm the judgment of the Circuit Court of La Salle County.
Affirmed.
SCOTT, J., concurs.