ent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer." "7

97

April 3rd 1924.

DUTY OF KEEPER OF ANIMALS

108. By the weight of authority the keeper is liable as insurer for injury due to the animal's vicious acts, where it is (1) of a dangerous species; or (2) the species not being dangerous, there is knowledge of the particular animal's vicious propensities. In other cases liability depends on negligence.

98

It has been seen that liability for trespassing cattle is absolute. To determine responsibility for injuries due to the animal's vicious acts necessitates a division into

97 In accord, Keep v. National Tube Co. (C. C.) 154 Fed. 121 (carbonic acid gas cylinder); Heaven v. Pender, L. R. 11 Q. B. D. 503 (staging). Cf. Hasbrouck v. Armour & Co., 139 Wis. 357, 121 N. W. 157, 23 L. R. A. (N. S.) 876, holding that serious injury from the negligent dropping of a needle into a mixture from which toilet soap is made does not usually result in serious injury to the user. In Krahn v. J. L. Owens Co., 125 Minn. 33, 145 N. W. 626, 51 L. R. A. (N. S.) 650 (pea thresher), it was observed that "one who manufactures and sells an article not ordinarily of a dangerous nature, which is calculated for use by others than the vendee, may be liable to a person, not the vendee, who uses it in the usual course of business, for injuries due to defects which render the use of the article dangerous to life or limb." The following conditions were said to be necessary to recovery: (1) The article must have been so defective as to be dangerous to life or limb. (2) Defendant knew of the defect, or at least that he should have known of it (here the jury found that defendant did know). (3) The defect was the proximate cause of the injury. (4) Ordinary observation on plaintiff's part would not discover the defect. (5) The article was intended for the purpose for which it was being used at the time of the injury. (6) Plaintiff was one of the class of persons by whom defendant contemplated the article would be used. Contra, Cadillac Motor Car Co. v. Johnson, 221 Fed. 801, 137 C. C. A. 279, L. R. A. 1915E, 287 (automobile); Burkett v. Studebaker Bros. Mfg. Co., 126 Tenn. 467, 150 S. W. 421 (carriage).

98 See supra, pp. 10, 347.

classes. By the weight of authority, "if, from the experience of mankind, a particular class of animals is dangerous, though individuals may be tamed, a person who keeps one of the class takes the risk of any damage it may do. If, on the other hand, the animal kept belongs to a class which, according to the experience of mankind, is not dangerous and not likely to do mischief, and if the class is dealt with by mankind on that footing, a person may safely keep such an animal, unless he knows that the particular animal that he keeps is likely to do mischief." " "Liability for safe-keeping depends not so much on the classification of animals into wild or domestic as upon their natural propensity for mischief. If they are ferocious and savage, like the lion, tiger, etc., the keeper is bound to know the danger incident to their confinement, and the mere charge of not having been so restrained as to avoid injury is tantamount to an allegation of negligence." 100 Here the owner or keeper is held as an insurer.101 On the other hand, if the animal is of a non-ferocious species, the owner or keeper will be held only upon proof of scienter or a knowledge of existing vicious propensities. Where this is established, by the weight of authority, liability is absolute and without regard to the degree of care with which the animal was guarded.102

99 FILBURN v. PEOPLE'S PALACE & AQUARIUM CO., 25 Q. B. D. 258, 261, Chapin Cas. Torts, 330, per Bowen, L. J.

100 Parsons v. Manser, 119 Iowa, 88, 92, 93 N. W. 86, 62 L. R. A. 132, 97 Am. St. Rep. 283, per Ladd, J.

101 Hayes v. Miller, 150 Ala. 621, 43 South. 818, 11 L. R. A. (N. S.) 748, 124 Am. St. Rep. 93 (wolf); Copley v. Wills (Tex. Civ. App. 1913) 152 S. W. 830 (monkey); FILBURN v. PEOPLE'S PALACE & AQUARIUM CO., 25 Q. B. D. 258, Chapin Cas. Torts, 330 (elephant). But cf. Parsons v. Manser, 119 Iowa, 88, 93 N. W. 86, 62 L. R. A. 132, 97 Am. St. Rep. 283 (bees). See 97 Am. St. Rep. 287, note, and 11 L. R. A. (N. S.) 748, note. "The Responsibility at Common Law for the Keeping of Animals," by Thomas Bevan, 22 Harv. L. Rev. 465.

102 Domm v. Hollenbeck, 259 Ill. 382, 102 N. E. 782, Ann. Cas. 1914B, 1272 (dog); Klenberg v. Russell, 125 Ind. 531, 25 N. E. 596 (cow); Twigg v. Ryland, 62 Md. 380, 50 Am. Rep. 226 (dog); Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123 (dog); Congress & E. Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487 (stag). Contra, De Gray v. Murray, 69 N. J. Law, 458, 55 Atl. 237 (but see Emmons v. Stevane,

522

103

Where scienter is not proven, the question is one of negligence. In some states by statute the owner of a dog is made liable without proof of scienter.104 If viciousness is manifested only under certain conditions, as when in heat or with young, there is no absolute duty to restrain at other times.105 To constitute notice it is not essential that the animal should previously have done some injury. There is a popular delusion that "every dog is entitled to one bite." He has no such vested right.106 A knowledge of viciousness may be brought home to owner or keeper in other ways. It is sufficient that the animal's previous acts are of such a character as to give notice that there is a disposition to commit the injury for which suit is brought.107 Precise similarity is not required, since it is the propensity to commit the mischief that constitutes the danger.108 Where the animal is of a species naturally vicious, or where scienter is

77 N. J. Law, 570, 73 Atl. 544, 24 L. R. A. [N. S.] 458, 18 Ann. Cas. 812); Worthen v. Love, 60 Vt. 285, 14 Atl. 461.

103 Gary v. Arnold, 175 Ill. App. 365; Barnum v. Terpening, 75 Mich. 557, 42 N. W. 967; Healey v. Ballantine & Sons, 66 N. J. Law, 339, 49 Atl. 511; Farber v. Roginsky, 123 App. Div. 38, 107 N. Y. Supp. 755.

104 See Leone v. Kelly, 77 Conn. 569, 60 Atl. 136, 1 Ann. Cas. 947; Faulkner v. Hall, 150 Ky. 416, 150 S. W. 506; Riley v. Harris, 177 Mass. 163, 58 N. E. 584; Fye v. Chapin, 121 Mich. 675, SO N. W. 797.

105 Tupper v. Clark, 43 Vt. 200; Barnes v. Lucille, Ltd., 96 L. T. Rep. N. S. 680. Cf. Elliott v. Herz, 29 Mich. 202; Van Etten v. Noyes, 128 App. Div. 406, 112 N. Y. Supp. 888.

106 Warner v. Chamberlain, 7 Houst. (12 Del.) 18, 30 Atl. 638; Worth v. Gilling, 2 L. R. C. P. 1; Barnes v. Lucille, Ltd., 96 L. T. Rep. N. S. 680. See Brice v. Bauer, 108 N. Y. 428, 15 N. E. 695, 2 Am. St. Rep. 454.

107 Cameron v. Bryan, 89 Iowa, 214, 56 N. W. 434; Rider v. White, 65 N. Y. 54, 22 Am. Rep. 600; Robinson v. Marino, 3 Wash. 434, 28 Pac. 752, 28 Am. St. Rep. 50. Cf. Strouse v. Leipf, 101 Ala. 433, 14 South. 667, 23 L. R. A. 622, 46 Am. St. Rep. 122; Domm v. Hollenbeck, 259 Ill. 382, 102 N. E. 782, Ann. Cas. 1914B, 1272.

108 Where defendant's horse struck plaintiff with its fore feet, evidence is receivable of its propensity to injure mankind by kicking with its hind feet, defendant having knowledge thereof. Reynolds v. Hussey, 64 N. H. 64, 5 Atl. 458. In accord, Emmons v. Stevane, 77 N. J. Law, 570, 73 Atl. 544, 24 L. R. A. (N. S.) 458, 18 Ann. Cas. 812. Cf. Cockerham v. Nixon, 33 N. C. 269.

established, some courts apparently consider that the mere keeping is itself a wrong; 109 while others treat the owner or keeper as under a duty to guard at peril.110 Though identical results would seem to have been reached under both views, where injury has been accomplished through the vicious acts of the animal, neither would appear applicable where this was not the cause. For instance, suppose an elephant is being led along a highway. Its conduct is unexceptionable and in strict accord with the canons of propriety, yet a horse takes fright at its appearance. Now, it should not be deemed wrongful merely to own or keep an elephant. A menagerie is not per se a nuisance, nor otherwise unlawful. Hence liability here would really rest upon the keeper's negligence.111

STANDARD OF CARE

may/st

109. It seems best to say that the standard of care is to be measured by the conduct of the ordinary man under similar circumstances.

Degree of Care

In Coggs v. Bernard 112 Lord Holt, C. J., divided negligence into three degrees: Slight, ordinary, and gross. The case merely involved the liability of a bailee, but this classification, as applied to negligence generally, is not without support,1 and the term "gross negligence" has been defended as indic

109 See Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175. 110 See Marble v. Ross, 124 Mass. 44.

113

111 "To render the defendants liable for the damage that accrued, it would be necessary to show, not only that such is the effect of the appearance of an elephant upon horses in general, but also that the defendants knew or had notice of it; for, if it is conceded that the elephant is of a savage and ferocious nature, it does not necessarily follow that his appearance inspires horses with terror." Scribner

v. Kelley, 38 Barb. (N. Y.)` 14, 16. In accord, Bostock-Ferari Amusement Co. v. Brocksmith, 34 Ind. App. 566, 73 N. E. 281, 107 Am. St. Rep. 260.

112 2 Ld. Raym. 909.

113 Astin v. Chicago, M. & St. P. Ry. Co., 143 Wis. 477, 128 N. W. 265, 31 L. R. A. (N. S.) 158.

194

ative of something more than a want of ordinary care,111 in which sense it is sometimes used in statutory provisions.115 But the weight of authority is opposed to the division into. degrees. "It is plain," says a learned author,110 "that such. refinements can have no useful place in the practical administration of justice. Negligence cannot be divided into three compartments by mathematical lines. Ordinary jurors, before whom, except in cases of admiralty, actions grounded on negligence are always tried, are quite incapable of understanding such refinements. * * * The sound view is that the classification of negligence as gross, ordinary, and slight indicates only that, under special circumstances, great care and caution are required, or only ordinary care, or only slight care. If the care demanded is not exercised, the case is one of negligence, and a legal liability is made out when the failure is shown." 117 Such words as "gross" and "reckless," when applied to negligence, have properly no legal significance, being merely vituperative epithets.118

Hence, negligence may be said to consist "in the failure to exercise that degree of care under given circumstances which a person of ordinary prudence would exercise under

114 Louisville & N. R. Co. v. McCoy, 81 Ky. 403; Galbraith v. West End St. Ry. Co., 165 Mass. 572, 43 N. E. 501; Bolin v. Chicago, St. P. & O. Ry. Co., 108 Wis. 333, 84 N. W. 446, 81 Am. St. Rep. 911.

115 Walther v. Southern Pac. Co., 159 Cal. 769, 116 Pac. 51, 37 L. R. A. (N. S.) 235; Brown Store Co. v. Chattahoochee Lumber Co., 121 Ga. 809, 49 S. E. 839; Clarke's Adm'r v. Louisville & N. R. Co., 101 Ky. 34, 39 S. W. 840, 36 L. R. A. 123; Dimauro v. Linwood St. Ry. Co., 200 Mass. 147, 85 N. E. 894.

116 Thompson on Negligence, vol. 1, § 18.

117 To the same effect, Colorado & S. Ry. Co. v. Webb, 36 Colo. 224, 85 Pac. 683; Raymond v. Portland R. Co., 100 Me. 529, 62 Atl. 602, 3 L. R. A. (N. S.) 94; Young v. St. Louis, I. M. & S. Ry. Co., 227 Mo. 307, 332, 127 S. W. 19; Perkins v. New York Cent. R. Co., 24 N. Y. 196, 82 Am. Dec. 281. Cf. Steamboat New World v. King, 16 How. 469, 14 L. Ed. 1019.

118 Stringer v. Alabama Mineral R. Co., 99 Ala. 397, 13 South. 75; McPheeters v. Hannibal & St. J. R. Co., 45 Mo. 22; McAdoo v. Richmond & D. R. Co., 105 N. C. 140, 11 S. E. 316; Mariner v. Smith, 5 Heisk. (52 Tenn.) 208; Wilson v. Brett, 12 L. J. Exch. 264, 11 M. & W. 113.