species of animais; 19 but there is no presumption of any kind as to his knowledge of the disposition or habits peculiar to his particular animals. Therefore, the owner of wild and savage beasts, such as lions, tigers, wolves, bears, etc., if he neglects to keep them properly secured, is liable for injuries committed by them according to their nature, without any evidence that he knew them to be ferocious,20 or that he was negligent in his mode of keeping them; 21 since he is bound in ordinary prudence to know that fact, and to secure them from doing harm. But the owner of creatures which, as a species, are harmless. and domesticated, and are kept for convenience or use,22 19 Bosozzi v. Harris, 1 Fost. & F. 92. This is evidently the principle upon which the decisions on this subject rest, though we do not find it anywhere stated in precisely this form. In Van Leuven v. Lyke, 1 N. Y. 515, the rule is stated thus: "It is a well-settled principle that in all cases where an action of trespass on case is brought for mischief done to the person or personal property of another by animals mansueta naturæ, such as horses, oxen, cows, sheep, swine, and the like, the owner must be shown to have had notice of their viciousness before he can be charged, because such animals are not by nature fierce or dangerous; and such notice must be alleged in the declaration; but as to animals feræ naturæ, such as lions, tigers, and the like, the person who keeps them is liable for any damage they may do, without notice, on the ground that by nature such animals are fierce and dangerous.” 20 So held, in the case of a bear which was confined by a chain and had for a long time been tame and docile in its habits (Besozzi v. Harris, 1 Fost. & F. 92; Marquet v. LaDuke, 96 Mich. 596, 55 N. W. 1006), and in case of elephant "The declaration alleged that the 22 This is the expression used in Vrooman v. Lawyer, 13 Johns. 339, and cited with approval in Earl v. Van Alstine, 8 Barb. 630, 636. In Smith v. Causey, 22 Ala. 568, a very similar phrase is used. such as dogs,23 cattle,24 horses,25 and even bees,26 is not liable for injuries willfully committed by them, unless he is proved to have had notice of the inclination of the particular animals complained of to commit such injuries."7 If, having had such notice, he neglects to keep them confined where no one can suffer from them while using ordinary care, he is liable for all injuries committed by them.28 Fairchild v. Bentley, 30 Barb. kicking propensity of a horse fur147; Steele v. Smith, 3 E. D. Smith, 321; Perkins v. Mossman, 44 N. J. Law, 579; Thomas v. Morgan, 2 Cr. M. & R. 496; Woolf v. Chalker, 31 Conn. 121; Kinnion v. Davies, Cro. Car. 487; see Hinckley v. Emerson, 4 Cow. 351; Hartley v. Harriman, 1 B. & Ald. 620; Fleeming v. Orr, 2 Macq. H. L. 14; Card v. Case, 5 C. B. 622. So as to cats (McDonald v. Jodrey, 8 Pa. Co. Ct. 142 [cat killed canary bird]). Van Leuven v. Lyke, 1 N. Y. 515; Vrooman v. Lawyer, 13 Johns. 339; Jackson v. Smithson, 15 Mees. & W. 563; Buxendin v. Sharp, 2 Salk. 662. 28 nished for his use by the master, Cox v. Burbridge, 13 C. B. N. S. 1029; 6 So. 895); cattle (Stumps 430. * Earl v. Van Alstine, 8 Barb. 630. "Van Leuven v. Lyke, 1 N. Y. 515; Fairchild v. Bentley, 30 Barb. 147; Earl v. Van Alstine, 8 Barb. 630; Vrooman v. Lawyer, 13 Johns. 339; Cox v. Burbridge, 13 C. B. N. S. 430; Dufer v. Cully, 3 Oreg. 377; Wormley v. Gregg, 65 Ill. 251; Murray v. Young, 12 Bush. 337; Staetter v. McArthur, 33 Mo. App. 218. One who, engaged to ride in a running race for horses, promoted by defendant, was injured by being thrown from her horse through defendant's negligently permitting a vicious horse to run in the race, can recover (Lane v. Minnesota Agric. Soc., 62 Minn. 175, 64 N. W. 382). Failure to inform a servant of the vicious v. Kelley, 22 Ill. 140; Hudson v. Roberts, 6 Exch. 697); a stallion (Hammond v. Melton, 42 Ill. App. 186); a ram (Graham v. Payne, 122 Ind. 403, 24 N. E. 216), and a buckdeer (Congress Spring Co. v. Edgar, 99 U. S. 645). In the last case, the action was for injuries from a buck in defendant's park, the declaration alleging that defendant knew the animal to be dangerous. There was evidence that the buck was allowed to roam in the park with several other deer; that plaintiff had often seen other persons playing with these deer in the park; that there had been notices in the park for more than a year, "beware of the buck;" that plaintiff did not know deer to be dangerous unless disturbed. Experts And the owner of even a wild beast is not liable for injuries caused by it in a manner which no acquaintance with its nature could have led him to expect, except upon similar evidence of notice.29 The owner of any kind of animal, whether it be wild or tame, is chargeable with notice of its generic disposition 30 to stray, and liability to take fright. If its size and speed are such as to make it dangerous, under such circumstances, the owner is bound to use ordinary care to keep it from straying; and if he neglects to do so, he will be liable for all injuries committed by it while straying, which he ought, in prudence, to have foreseen as likely to occur. For this reason, the owner of a horse is liable for damage done by it in running away, if he has not used due diligence to prevent its escape; and this even though the immediate cause of the horse's running away was the wrongful act of a stranger.32 If, however, the owner of a tame and domestic animal has used ordinary care in its management, testified that at the season when the injuries were suffered, deer were dangerous. Held, a nonsuit properly refused (Gooding v. Chutes Co., 155 Cal. 620, 102 Pac. 819, 23 L. R. A. (N. S.) 1071 (1909); Gordan v. Kaufman, 44 Ind. App. 603, 89 N. E. 898 (1908); Emmons v. Stevone, 77 N. J. Law, 570, 72 Atl. 544, 24 L. R. A. (N. S.) 458 (1910); McClain v. Fair, etc. Ass'n, 17 Ida. 63, 104 Pac. 1015, 25 L. R. A. (N. S.) 691 (1910); Harris v. Packing Co., 43 Wash. 647, 86 Pac. 1125, 6 L. R. A. (N. S.) 1164 (1906). 32 If a horse and cart are left standing in the street of a city, without any person to watch them, the owner is liable for any damage done by the horse in running away, though the act of a passer-by, in striking the horse, was the immediate cause of its starting (Tindal, C. J., Illidge v. Goodwin, 5 Carr. & P. 190; compare however, Hayman v. Hewitt, Peake Add. Cas. 170). It is, of course, otherwise where the owner has kept due care of the horse (Weldon v. Harlem R. Co., 5 Bosw. 576). Other similar cases are cited under § 645, post. he is not liable for the injuries which it accidentally commits while in a place in which it may lawfully be.33 § 630. What deemed sufficient notice. It is not necessary that the owner of an animal should have any formal notice, or positive knowledge, of its vicious habits or disposition, in order to make him liable for its acts. It is sufficient if he has seen or heard of things which would suffice to convince a man of ordinary prudence that the animal was ill-disposed. But notice of the fact to a servant, in order to charge the master, must be communicated to the servant whose duty required him to inform his master, and whose admissions would be competent evidence against him.35 34 Sullivan v. Scripture, 3 Allen, 564; Weldon v. Harlem R. Co., 5 Bosw. 576; compare Sanders v. Teape, 51 L. T. N. S. 263 (§ 626, ante). See further upon this subject, § 644, post. 34 "A jury may infer that defendant knew what was common knowledge as to the vicious propensities of an animal (Linnehan v. Sampson, 126 Mass. 506). s. P., Young v. Murray, 12 Bush, 337; Meier v. Shrunk, 79 Iowa, 17, 44 N. W. 209 [bull]; Cameron v. Bryan, 89 Iowa, 214, 56 N. W. 434 [dog]; Fake v. Addicks, 45 Minn. 37, 47 N. W. 450 [dog]; Robinson v. Marino, 3 Wash. St. 434, 28 Pac. 752 [dog]. In Norris v. Warner, 59 Ill. App. 300, held error to admit proof of the general reputation of the dog for viciousness, and the manner in which the public acted towards him. For a case of insufficient proof of knowledge, see Lawlor v. French, 1 N. Y. App. Div. 634 mem., 37 N. Y. Supp. 807. Baldwin v. Casella, L. R. 7 Exch. 325 [owner of dog appointed a servant to keep it]; Applebee v. Percy, L. R. 9 C. P. 647; Jeffrey v. Bige low, 13 Wend. 518 [agent to sell sheep knew them to be diseased]. See also, Kennett v. Durgin, 59 N. H. 560; Moulton v. Moore, 56 Vt. 700. The knowledge of the wife is the knowledge of the husband (Gladman v. Johnson, 36 L. J. C. P. 153); but knowledge of husband will not be imputed to the wife so as to render her liable after his death (Miller v. Kimbray, 16 L. T. N. S. 360). In Twigg v. Ryland, 62 Md. 380, held that a servant's knowledge of the vicious character of a dog accustomed to follow him about in the master's business, but not put in his charge by the master, is not imputable in the latter. See Stiles v. Cardiff Steam Nav. Co., 33 L. J. Q. B. 319; Simpson v. Griggs, 58 Hun, 393, 12 N. Y. Supp. 162. In Brice v. Bauer, 108 N. Y. 428, 15 N. E. 695, a servant's knowledge of a dog's ferocious disposition was imputed to master. The fact that a stable man had told the superior hostler that the horse was vicious was sufficient to put defendant on inquiry respecting its character, and, in the absence of inquiry, to charge it with notice of 36 § 631. What kind of notice necessary. It is not necessary that the act of aggression brought to the notice of the owner should be precisely similar to that upon which the action against him is founded. But it is necessary that the facts thus brought to his notice should indicate a disposition to commit injuries substantially like those which form the basis of the claim against the owner.37 Thus, in an action founded upon injuries inflicted by a its viciousness (McGarry v. N. Y. & Ockerhausen, 59 Hun, 619, 13 N. Y. Harlem R. Co., 60 N. Y. Superior, Supp. 499. It is proper to refuse to 367, 18 N. Y. Supp. 195 [inferior charge that plaintiff, in order to rehostler bitten by horse]). A cor- cover, must satisfy the jury that the poration whose foreman is aware that horse had, prior to the accident, a dog owned by it has some months done mischief similar in character previously bitten a person, is liable to that complained of, and that deto an employee who is also bitten fendant knew it (McGarry v. N. Y. (Keenan v. Gutta Percha Mfg. Co., & Harlem R. Co., 60 N. Y. Super. 46 Hun, 544). See Leigh v. Omaha 367, 18 N. Y. Supp. 195). R. Co., 36 Neb. 131, 54 N. W. 134 [horse car driver kicked by vicious broncho]; Donahue v. Enterprise R. Co., 32 S. C. 299, 11 S. E. 95; knowledge of the servant driving a bull is notice to the owner (Clowdis v. Fresno, etc. Co., 118 Cal. 315, 50 Pac. 373, 62 Am. St. Rep. 238 (1897); circumstances tending to show viciousness (Barclay v. Hart man, 2 Marv. 351, 43 Atl. 174 (1896); wife's knowledge is notice, Ibid. But servant's knowledge is not notice to the master unless he is the agent of the owner or in charge of the animal (Friedmann v. McGown, 1 Pennw. 436 (1898); the manager of a stable carried on for a number of private persons is the servant of each so as to affect the owner with his knowledge (Brown v. Green, 1 Pennw. 535, 42 Atl. 991 (1899). 36 In McCaskill v. Elliott, 5 Strobh. 196, evidence of the general ferocity of the dog's character was held sufficient. S. P., Lynch v. McNally, 7 Daly, 126, 73 N. Y. 347; Jacoby v. 37 If the animal has been mischievous only under special circumstances, changing its disposition for the time, the owner is not bound to foresee that it may be mischievous under other circumstances not affecting its disposition (Tupper v. Clark, 43 Vt. 200). In an action for damages done to a horse by a bull, evidence of a previous attack by the bull upon a man was held competent, but not conclusive evidence. The court below having held it conclusive, the judgment was reversed (Cockerham v. Nixon, 11 Ired. Law, 269). It is sufficient if the owner have knowledge or notice that the animal is of such a disposition as to render his inflicting the injury sued for, highly probable, and the owner is generally chargeable with such notice as he would have had if he had exercised proper care in looking after it (Merritt v. Machett, 135 Mo. App. 176, 115 S. W. 1066 (1909); Fitzgerald v. Warholy, 109 App. Div. 606, 96 N. Y. Supp. 243. |
