Francis H. (Francis Hermann) Bohlen.

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The entertainment came off on the 3d of August, 1877; the
bear was brought on the ground and was offered as a prize, as pre-
viously arranged. He was won by William Arms, a member of the
club, and one of the defendants. Arms put him up again to be shot
for, and this time he was won by another person, who, however,
declined to claim the prize. Arms had the bear taken to the grounds
of the club, and caused him to be chained to the corner of the club-
house ; and there the bear remained until the 30th of October, 1877.
These grounds had been leased by the club, and the house erected bv
it belonged, by the terms of their charter, to the members of the club.
The pasture of Mr. Vredenburg, who was engaged in a dairy bus-
iness, adjoined the grounds of the rifle club, and he and his em-
ployees in going to and from the pasture passed through these club
grounds. On the evening of the 30th of October, Mr. Vredenburg
went to the pasture after his cows. A short time thereafter, as he
was returning from the pasture, he was attacked by the bear, which
in the meantime had gotten loose, and received the injuries of which
he subsequently died. Tetanus or lock-jaw supervened, attended with
great suffering, and his death occurred on the 27th November, twenty-
one days after the wounds were inflicted. It is shown that just
after Mr. Vredenburg passed through the club grounds on his way
to the pasture, a boy, who was employed by him to assist in driving
his cattle, and in his dairy business generally, came into the club
grounds accompanied by a small dog, and teased the bear by setting
the dog on him ; and it was whilst the animal was thus worried, that
he twisted his collar off, and ran after the dog and finally encount-
ered Mr. Vredenburg; and just as he attacked him he was whipped
by his keeper in an eft'ort to prevent the attack, which only served
to enrage him the more.



prevent their escape, it is not negligence to lead a horse, not known to
be vicious, through a public street, whether the person so leading him is
walking or riding or driving another horse and such person is not liable if
such horse, by kicking, injures the person or property of a traveller. Eddy v.
Union Railroad Co., 25 R. I. 451 (1903)

* See Beven, Neqligence in Law, 3rd Ed., pp. 505, 520, 521 ; and Braay v.
Warren, 1900, 2 Irish R. 632.



VREDENRURG, Ct oL, V. liKIIAX, Ct ol. 547

This last mentioned fact, touching the acts of the hired boy in
causing the bear to break loose, is charged to have remotely caused
or contributed to the death of the deceased, and is relied on by the
defendants as a ground tu relieve them of responsibility for the
result; and though not strictly in the order of pleading adopted by
their counsel, it is well to consider it at once, and eliminate it from
the case.

2. The doctrine of contributory negligence has never been car-
ried to the extent contended for in this instance. Had the acts re-
ferred to been committed by Vredenburg himself, there would be
great force in the plea urged ; and the principle invoked would be
strictly api)licable.^ It is for his own acts, however, in this respect,
that a man is bound and for which he must suffer ; but he cannot
be held equally answerable for the acts, faults and negligence of his
employee.

The master or employer is only answerable for the faults of
his employee when committed "in the exercise of the functions of
his employment, and when he might have prevented the act and not
done it." C. C. 2320.

In this instance, the boy's act was not in the remotest degree
connected with his employment ; his employer was not present, was
not knowing or consenting to it ; and it was not in his power to
prevent it.

Besides, the responsibility attaching to those who own. control
or keep animals fcra naturce, to which class a bear belongs, is of
that strict and grave character, as not to be relieved or modified by
considerations of the kind presented, nor to be measured by rules
that apply to owners or keepers of domestic animals.

Animals of this kind, such as lions, tigers, bears, are univer-
sally recognized as dangerous. It is the duty of those who owmi or
keep them, to keep them in such a manner as to prevent them from
doing harm, under any circumstances whether provoked, as they
are liable to be, or not provoked. There must be security against
them under all contingencies. Domat, p. 475 ; Merlin, Repertoire.
tome 26, p. 242, verbo Qiiasi-Delit; Marcade, tome 5, pp. 272. 273;
I Late Rcpts., p. 263 ; 3 Lazv Repts., p. 330.

Nor does it matter that an animal of this kind may be to some
extent tame and domesticated ; the natural wildness and ferocity of
his nature but sleeps, and is liable to be awakened at any moment,
suddenly and unexpectedly, under some provocation, as was the
case in this instance.

^"And as negligence, in the ordinary sense, is not the ground of liab.Kty.
so contributory negligence, in its ordinary sense, is not a defense." It must
be shown that'the plaintiff with full knowledge of the presence of the animal
and of its vicious propensities "wantonly excites it or voluntarily and un-
necessarily puts himself in the wav of it," Muller v. McKcssou, 73 N. Y. 195
(1878) ; Lynch v. McNallv, 73 N. Y. 347 (1878) ; JVoolf v. Chalkcr, 31 Conn.
121 (1862) : Marlor v. Ball, 16 Times, L. R., 239 (1900) ; Malloy v. Siartu,
113 App. Div. (N. Y.) 852 (1906); Fake v. Addicks, 45 Minn. 37 (1890);
and see Earhart v. Youmjblood, 27 Pa. St. 331 (1856) ; compare with this the
decision of Paulus, Sent. Roc. 1. 15 Sec. 3. "£/. qui initatu suo fcriam
bcstiam vcl quamcumquc aliaiu quadrcpcdcm in se proritayerit, eaque danuium
(fcder.it, neaue in ejus doniinuni necquc in custodcm. actio datur."



548 VREDENBURG, et al.. t'. r.EHAX, ct al.

If the defendants are otherwise liable for the acts of the bear,
the acts of the boy in provoking him cannot for these reasons, affect
in the least that liability.^



"It is held in some cases that "in truth there is no distinction between
the case of an animal which breaks through the tameness of its nature, and
is fierce, and known by its owner to be so, and one which is ferae naturae,"
Alderson, B., Jackson v. Smithson, 15 :\I. & W. 563 (1846), p. 565, but see
22 Harvard L. Rev. pp. 484, et seq. In Baker v. Snell, L. R. 1908, 2 K. B.
352, 825, it was held that an innkeeper, who kept upon his premises a dog
known by him "to be ferocious and given to bite"' was liable to a housemaid
employed by him who was bitten by the dog, though the dog had been en-
trusted to the "ootman," a fellow servant, whose duty it was to unchain
the dog in the m.orning, exercise him and then chain him up again, and
though the attack was caused by the act of the potman who, saying, "I bet
the dog will not bite any one in this room," released him, saying as he did
so, "Go it, Bob." See, however, the very learned article by T. Eevcn. Esq.,
in 22 Harvard L. R. 465, in which he severely criticises this decision.
Accord: Lavcrone v. Mangianti, 41 Cal. 138 (1871) ; Midler v. Mci^esson,
/3 N. Y. 195 (1878), where a savage dog, kept to guard the defendant's
premises at night, was allowed to run at large during the day through the
negligence of a fellow servant of the plaintiff, whose duty it was to chain him
up in the morning. On the other hand it has been held that one keeping
a ferocious dog for the protection of his home is liable only for negligent
custodv, De Gray v. Murray, 69 N. J. L. 458 (1903); Wortlicn v. Love, 60
Vt. 285 (1888) ; and see Haves v. Smith, 62 Ohio St. 161 (1900).

In Sarck v. Blackburn, 4 C. & P. 297 (1830), Tindal. C. J., says, p. 300,
"Undoubtedly a man has a right to keep a fierce dog for the protection of his
premises but he has no right to put the dog in such a situation, in the way
of access to his house, that a person innocently coming for a lawful purpose
maj' be injured by it unless he gives sufficient notice of the animal's presence
and" it does not appear to me that a painted notice is sufficient, unless th?
pa.rty is in such a position in life as to be able to avail himself of it," which
the plaintiff in the particular case was not, being a night-watchman and
unable to read. Such animals, though kept as watch dogs, must be confined
to the owner's premises and not permitted to run at large. Smith v. Pelah,
2 Strange 1265 (1746); Roehers v. Remhoff, 55 N. J. L. 475 (1893), and
while he may let them loose upon his premises at night. Brock v. Copeland.
1 F.sp. 203 (1794), he may not allow them to roam about the premises during
the day. JVooIf v. Chalkcr, 31 Conn. 121 (1862), p. 1.32, at least within city
limits, Sylvester v. Maag, 155 Pa. St. 225 (1893), though it appears that
anciently at least, farmers, even those dwelling in the forests, were allowed
by the common law to keep mastiffs about their homes, if so expedidated as
to be incapable of destroying the deer, Mamvord, Forest Law, p. 107, quoted
by T. Beven, Esq.. 22 Harvard L. R. 487.

As to the liability of an owner of land to persons coming upon his land
as trespassers for injuries done by ferocious domestic animals kept thereon,
see notes to Bird v. Holbrook, ante.

See, accord: Alderson, B., Jackson v. Smithson, 15 M. & W. 563
(1846), p. 565: — "In truth, there is no distinction between the case of an
animal which breaks through the tameness of its nature, and is fierce, and
known by its owner to be so, and one which is ferae naturae," but se2 22
Harvard, L. R., pp. 484, et seq.



m'CASKILL v. ELLIOT 549

McCASKILL V. ELLIOT.
Court of Appeals of South Carolina, 1850. 5 Strobhart 196.

Before Wardlaw, J., at Kershaw, March, 1850.

Case for wrongfully keeping a dog that bit the plaintiff.

The first count alleged that the dog was accusiumed to bite
mankind ; the second, that he was of a ferocious and mischievous
disposition — both counts alleged the scienter of defendant.

It appeared that the dog was large, and, in appearance, fierce;
that he would run out of the yard of defendant (who lived near
to a road) and bark furiously at persons passing by, and that once
he bit the heels or tail of a horse that a witness was riding; that
once at a mill, he attacked a negro who passed near to a horse he
was lying by, but was kept off with a stick; that defendant had said,
"the dog will follow me wherever I ride and lie by my horse, and
then nobody must come near."

On occasion of a big meeting, defendant's son went fifteen min-
utes or so earlier than his father, the dog following; the son pulled
off his saddle and scolded the dog, who slunk back and lay down by
the saddle. The plaintiff coming afterwards, during service in the
church, hitched his horse, and walking towards the church passed
near the dog. The dog flew at and bit him.

Testimony was offered as to the subsequent conduct of the par-
ties, which it is useless to report.

There was no testimony to show that the dog had previously
bit any person. The defendant's counsel contended that this was
indispensable, citing 7 Car. & Payne, 756. The Circuit Judge thought
that a previous biting, known to defendant, might have an effect
upon the degree of care which would afterwards be required of him,
but was not indispensable under the second count.

He directed the jury to inquire whether the evidence had satis-
fied them — first, that the dog was of a ferocious and mischievous
nature — second, that this was known to defendant; and third, that
the defendant had been blameably negligent in his keeping of such

a dog.

If these propositions were established, he thought the verdict
should be for the plaintiff. The jury found for the plaintiff, a sum
sufficient to carry costs.

The defendant appealed, and moved for a new trial, on the fol-
lowing grounds :

1. Because the first count sets out that the defendant knew
that the dog was "used and accustomed to attack and bite mankind ;"
and the other count sets out that the defendant knew the dog "was
of a ferocious and mischievous nature;" and it is most respectfully
submitted, that in such case, to entitle the plaintiff' to a verdict, he
must prove, that before biting him, the dog had bit some person, and
that the defendant had had notice of that fact.

2. Because, in such case, knowledge of the defendant that the
dog "was of a ferocious and mischievous nature." cannot be inferred
from any conduct, habit or act of the dog, short of an actual biting



00



O M CASKILL c'. ELLIOT



of some person anterior to the biting of the plaintiff, and no other
or less proof is sufficient to show that the defendant had notice that
the dog "was of a ferocious and mischievous nature."

3. Because the verdict is against the law and evidence of the
case.

Smart, for the motion.

Kcrshaiv, contra.

Curia, per Wardlaw, J. — In every case for mischief done by
an animal, where no evil design is imputed to the defendant, the
cause of action is the defendant's breach of social duty, in not effec-
tually preventing a thing within his control from doing the harm
complained of, when his previous information ought to have shown
that the thing was likely to do such harm if not prevented. If the
plaintiff's only statement of the evil qualities of the dog known to the
defendant, had been that in the first count, — that it was accustomed
to bite mankind, — then the particularity of the averment would have
required evidence of at least one biting of a human creature. But
under the second count alleging a ferocious and mischievous dispo-
sition, whatever was calculated to establish the dangerous propensity
of the animal, in sufficient degree tended to support tne allegation,
and was properly left to the jury. That a dog has once bitten a man,
is a circumstance from which the probability of its biting another,
may be inferred; but the same inference may be drawn with equal
confidence from other indications of the dog's disposition. Indeed,
attempts before made by a dog that had never succeeded in actually
biting, may give more full assurance of danger to be apprehended
from it, than could exist as to another dog, that under some peculiar
circumstances had used its teeth upon man. To require that a plaint-
iff, before he can have redress for being bitten, should show that
some other sufferer had previously endured harm from the same
dog, would be always to leave the first wrong unredressed, and to
lose sight of the thing to be proved, in attention to one of the means
of proof. If nothing short of a dog's once having bitten, can show
its dangerous nature, even the owner of a dog known to have been
bit by a rabid animal may not be answerable, unless on some previous
occasion the dog has inflicted the dreadful injury, which he was
bound to have apprehended and prevented.^



^Accord: Barnes v. Lucille, Ltd., 96 Times L. R. 680 (1907) ; Rider
V White, 65 N. Y. 54 (1875) ; Godean v. Blood, 52 Vt. 251 (1880) ; Worth v.
Gillig, L. R. 2 C. P. i. (1866).

A single attempt, successful or not, to do a similar harm is enough.
Killredge v. Elliott, 16 N. H. 77 (1844) ; Arnold v. Norton, 25 Conn. 92
(1856) ; Cockerham v. Nixon, 11 Iredell (N. C.) 269; Mann v. Weiand,

81 Pa. 243 (1875)- ., . , J u ■ u- r •. ^

If the animal has manifested the propensity to do the mischief it does
not matter that he has on the previous or present occasion so acted in play
and not out of a fierce and savage nature, Evans v. McDermott, 49 N. J. L.
163 (1886) ; Crowley v. Groonell, 73 Vt. 45 (1901) both dog cases; Oakes v.
Spaulding, 40 Vt. 349 (1867) ram butting in play— nor will evidence of a
dog's good character for mildness be admitted w^hen it is shown to have
previously bitten other persons, Buckley v. Leonard, 4 Denio, N. Y. 500
(1847), but see Line v. Taylor, 3 F. & F. 731 (1863).



M CASKILL V. liLLIOT 55 I



If the owner of a dog knew from sufficrent indications, that it
was likely, at all times and in all places, to bite strangers that ap-
proached it. no care in closing gates, nor chain broken, is an answer
to a plaintiff, who has been bitten when it escaped. If it was only
so ferocious as to bite those who hurt it. a plaintiff (whose own mis-
conduct has not brought just punishment upon himself ) may well
complain that it was not prevented from lying where he incautiously
trod upon its toes. But still a watch dog may be kept, and if it is
safely confined, so that only wrongdoers may suffer from it, it is
the rnore valuable if it is sure to punish their unlawful ingress, and
a person whose trespass has encountered it, must endure the con-
sequences.

If a dog is likelv. as his owner knows, to bite either man or
sheep only at particular seasons, or under particular circumstances,
then, against those seasons or circumstances, and that kind of mis-
chief to be apprehended in them, the owner insures at his peril. ^ A
plaintiff who has suffered such mischief, is, in cases that have been
decided, advised to allege a general mischievous disposition, rather
than a particular habit. L'nder such general allegation, his count is
in eft'ect, that the defendant wrongfully kept a dog which he knew to
be likely to do a certain harm, and that the dog had done that harm
to the plaintiff'. From such harm done by such dog, the inference of
blamcable negligence contained in the fact of keeping necessarily
arises, and therefore in this count negligence is substantially averred.
A count of this kind puts in issue the existence of a disposition in
the dog, ferocious and mischievous to such a degree as was likely
to produce the injury complained of — such knowledge of that dis-
position, on the part of the defendant, as ought to have induced his
reasonable apprehension and effectual prevention of such an injury
—the subsequent keeping of the dog,— and the injury consequent
thereon. Care taken by the defendant, which has failed to prevent
what thus he ought to have apprehended and prevented, whilst he
kept the animal, could not be a defence in any action of this kind; —
however plainly sutffcient, it would be for the defendant to deny,
and by evidence contradict, all previous indication or habit known
to him, that could have reasonably induced his expectation, that
under the circumstances that occurred, the harm complained of
would have been done.

The count now objected to, is conformable to various prece-
dents, and is certainly sufficient after verdict.

In the case before us, the attention of the jur>' was directed to
the question of negligence, perhaps unnecessarily -.—but negligence^
has been in fact expressly found. The dog may have been harmless '
in the defendant's yard, but he knew that it had a habit of following
and guarding a horse, and that when thus employed, it was danger-
ous. He was bound then to insure against this habit, and when he

•As a bitch, fierce only while nursinp its pups. Barnes v. 7 wrrV^f.^ Times
L. R. 680 (1907); Cliuton v. Lyo„s Co L. R- /"^^^ 3 K. B. 257. or ;.
stag, savage during mating season, 6priny Co. v. tdgar, 99 U. b. Mb (.lb/a).



552 HEALEY Z-'. BALLANTINE & SONS

suffered the dog to mount guard at a meeting-house, where many
persons unsuspicious of danger ma}' have been expected to pass, he
surely was blameably neghgent.

The motion is dismissed.*

Evans, Frost and Withers, JJ., concurred.

Motion refused.

HEALEY V. BALLANTINE & SONS.

Supreme Court of New Jersey, 1901. 66 N. J. L. 340.

Depue, Chief Justice. This was a suit by husband and wife
to recover damages for an injury done to the wife, Mary Healey,
who, on October 14th, 1898, was walking along the sidewalk on
Christie street, a public street in the city of Newark. Wliile she
was in the lawful use of the street a horse of the defendant was

Toeing led along the sidewalk by a halter by a servant of the defend-
ant. The horse had no other harness. The plaintiff testified that
she came from Ferry street into Christie street, and walked along
the sidewalk on Christie street ; that on the outer edge of the side-
walk and running parallel with Christie street is a wooden railing
separating the sidewalk from the street ; that while she was walking

—along^Jjie sidewalk she saw a man leading a horse by a halter coming
towards her on the sidewalk ; that as the man and horse approached

~TTer^she""^tempted to get out of the way of the horse by going a
little further out towards the railing, when the horse kicked her.

—Fgt the personal injuries she sustained this suit was brought, and
resulted m a verdict in favor of the plaintiffs for personal injuries



to'tHe wife and for the damages sustained by the husband. There
is no controversy as to the manner in which the accident happened.

The plaintiffs neither allege in the declaration nor proved at

the trial any mischievous propensity on the part of the defendant's

horse. The contention on the part of the defence was that in order

-to-alkiw the plaintiff's to recover damages for the personal injuries,

;ious or mischievous propensity on the part of the animal must
be shown and the scienter established. This question was raised



*In Reynolds v. Hussey, 64 N. H. 64 (1886) it is said that, "it is sufficient
if the owner has seen or heard enough to convince a man of ordinary pru-
dence of the animal's inclination to commit the class of injuries complained
of," and in Fake v. Addicks, 45 Minn. 2>7 (1890) it is said that, "the notice
of such propensity must be such as to put a prudent man on his guard." It
is not necessary that the prior misconduct should be precisely similar to that
for which the action is brought, it is enough if the two are so far alike that
the commission of the one would tend to prove a disposition to commit the
other, Reynolds v. Hussey, 64 X. H. 64 (1886), known tendency to kick
sufficient to render owner liable for injuries due to rearing and striking;
Mann v. Weiand, 81* Pa. 243 (1875). But it is so notorious that dogs may
be fierce to their fellows or other animals and yet gentle to mankind that it is
generally held that a known tendency to attack the former is not evidence of
ferocity' toward the latter, O shame v. Chocquecl, L. R. (1896) 2 Q. B. 109;
Keightlinger v. Evans, 65 111. 236 CT872). but see Goething v. Morgan (cited
in Oliphant, Law of Horses, 5th Ed. p. 322), where it was held that the fact
that a dog had bitten a child was insufficient to prove a tendency to worry



IIEALEY v. liALLANTlXIi & SONS 553

first on motion to nonsuit, which was denied and exception taken.
The learned judge, in his charge to the jury, dealt with the subject
as follows: "It is said by the defendant that the plaintiffs ought to
prove to you that the defendant knew that the horse had this vicious
propensity — in common language, that the defendant knew that the
horse was a kicker. I charge you that that is not the law, and that
it is not necessary, in order for the plaintiffs to recover, for them
to show that the defendant corporation knew of this bad propensity,
if it was a bad propensity, of the horse. You have the right to
consider, as a matter of common observation, that horses will kick,
and that even a ki^id and gentle horse will, on occasion, kick. Now,
having that in view, and remembering the situation of Christie
street, as far as you have it from the evidence, did the stableman
act negligently and carelessly in leading the horse along the sidewalk
so near to the plaintiff' Mary Healey that the horse could reach her
with his hoofs?" To this instruction exception was also taken, and
errors have been assigned accordingly.

To sustain the contention of the defendant's counsel, reliance
is placed on Cox v. Burbridge, 13 C. B. (N, S.j 430. In that case
it appeared that the defendant's horse, being on a highway unat-
tended, kicked the plaintiff, a child who was playing there ; there
was no evidence to show how the horse came on the spot, or what
induced him to kick the child, or that he was accustomed to kick.
It was held that there was no evidence from which a jury would
be justified in inferring that the defendant had been guilty of action-
able negligence. The familiar doctrine of the common law is that
the owner of a domestic animal is not responsible for an injury
done by it unless he has knowledge of the propensity or vice which
induces the animal to do the- injury, or has been guilty of some i
actionable negligence. The court, in disposing of tlie case, dwelt '
mainly on the fact that there was no evidence of an actionable
wrong on the part of the owner of the animal. Chief Justice Earle
said : "To entitle the plaintiff' to maintain the action it is necessary
to show a breach of some legal duty due from the defendant to the