But if the defendant can set up in defence the fact that he did not know of the bad habits of the dog, the plaintiff must meet the testimony in rebuttal by proving that he did, which is the very thing that the statute says he need not do. The provision is not that he need not prove the fact in the first instance. He need not prove it at all. Clearly, then, testimony relating to the scienter is not admissible as a defence. This is the opinion, under laws of the same purport, in Woolf v. Chalker, 31 Conn. 121; Pressey v. Wirth, 3 Allen, 191; and Galvin v. Parker, 154 Mass. 346. The exceptions are overruled, and the petition for a new trial denied. Patrick J. Galvin, for plaintiff. Charles Acton Ives for defendant. 502. MOLLOY v. STARIN COURT OF APPEALS OF NEW YORK. 1908 191 N. Y. 21, 83 N. E. 588 APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 27, 1907, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. Dickinson W. Richards, for appellant. The defendant in this case is not liable under the doctrine which holds the owner or keeper of a wild animal to be, under certain circumstances, an insurer against injury by it. . . . Jonathan Deyo, for respondent. Wild beasts having a savage nature are always kept at the absolute risk and peril of those who keep them in their possession. If they do harm to a human being, that fact alone is conclusive evidence that he who keeps them has violated his duty of care. The only defence is that the injured party wilfully and knowingly put his person at the mercy of the beast. GRAY, J. The defendant is engaged in the business of a common carrier, and, as such, received from their owner four trained bears for transportation on one of his steamboats from New York to New Haven. They were confined in cages; three of the sides of which were wood, while the fourth side, or front, of the cage, consisted of an iron grating, over which a wooden slide was so adjusted as to be moved up and down. Upon arriving at New Haven, at half-past four in the morning, the cages were removed to the defendant's freight house upon the dock, to await their delivery, at a later hour, to the owner. He arranged the cages in the form of a square, somewhat apart, and so that the front of each cage would face within. He then raised the slides somewhat, watered the animals and went off to arrange for taking them away. Some three hours later, the plaintiff, a boy nine years old and apparently quite capable of taking ordinary care of himself, came upon the dock, though having no business there, entered the freight house, and went between two of the cages. He was bending down to look through the grating of one of them and, in that attitude, putting one foot back of the other, when the bear in the cage behind him seized it and inflicted the injury for which this action was brought. He recovered a judgment against the defendant for damages; which the Appellate Division justices, not all concurring, have affirmed. . . . I am unable to perceive any legal ground for sustaining the recovery. There was no formal charge, and I find it somewhat difficult to understand, from the various rulings made by the trial Court upon requests for instructions to the jurors, on what theory the case was submitted; unless it be this that the defendant was liable, in all events, if the animal was "not being securely kept." The jurors were instructed that "this case is not considered as an action for damages for negligence" and that "if the boy was a licensee upon the defendant's premises, and if the bear was in the defendant's possession, and, through not being securely kept, injured the boy, the boy is entitled to recover, unless the injury was caused by an act of the boy, done with the knowledge that he was exposing himself to the risk of injury from the animal." It is probably the fact, regarding the various instructions to the jurors, that the trial Court applied the strict rule of liability, adopted in cases where a ferocious animal, whether ferae naturae or domitae, are kept, with the owner's knowledge of their ferocious propensities. . . . The liability of an owner is absolute and he is bound to keep the animal secure, or he must suffer the penalty for his failure to do so, in making compensation for the mischief done. . . . In this case the owner of the bears might well be under an absolute liability for keeping that dangerous kind of property. . . . But the defendant was not the owner of the bears; nor was he their keeper within the meaning of the cases. He neither kept nor maintained them, as an owner. As a common carrier he received them as so much freight, as he was warranted in doing; there being nothing in the condition in which they were taken over by him, which constituted a public menace or a nuisance. Indeed, the jurors were expressly instructed that the defendant could not "refuse to take property for transportation, simply because it was of a dangerous character." There is no suggestion that the animals were not securely confined in their cages, and the defendant, in receiving them as a carrier, assumed to their owner the carrier's liability for their safe carriage, and to the general public he owed the duty of adopting reasonable precautions to prevent accidents while the animals were in his possession. The duty, or the responsi bility, of the carrier would be proportioned to the nature of the freight carried; for, obviously, a different degree of care would be called for if the item of freight is of a dangerous character, such as would be a wild and ferocious animal, or some highly explosive compound, from what would be required, if some harmless article were in his custody. It does not appear that the defendant neglected the exercise of a reasonable precaution in carrying these animals, and, when they were taken from his vessel, they were placed within the freight house, with the cages so arranged as to have their fronts face within a square. Thus there was no danger whatever to the passing public. It required unauthorized meddling to create the danger. . . . If the defendant cannot be shown to have been negligent with respect to the public safety, in failing to adopt such a reasonable precaution in carrying his freight of wild. animals as the nature of the case called for, he has come under no liability to the plaintiff. . . . For the reasons given, I advise the reversal of the judgment appealed from and that a new trial be ordered; costs to abide the event. WILLARD BARTLETT, J. (concurring in result). I find it impossible to concur in the view of the law of this case expressed in the opinion of the Chief Judge, or in the view of the facts expressed in the opinion of Judge GRAY, and, therefore, deem it proper to set forth my reasons for differing from them, in a separate opinion, as briefly as may be consistent with clearness. It is no doubt the settled law in this State that the owner of a wild animal of a dangerous character, or the owner of domesticated animals known to be of a vicious disposition, is absolutely liable for injuries done by such animal to another, unless the injury was brought upon that other by his own conduct; and this liability exists if injury is done by the animal without fault on the part of the person injured, no matter how much care may have been exercised by the owner for the purpose of preventing the injury (Muller v. McKesson, 73 N. Y. 195). A bear is a wild animal of such a character that every one is presumed to have knowledge of its savage nature (Besozzi v. Harris, 1 Foster & Finlason, 92). It has further been held that this liability on the part of the owner of an animal known to be a vicious one extends to a person who harbors the animal although not its owner (Brice v. Bauer, 108 N. Y. 428). According to the opinion of the Chief Judge, the defendant in this case, who had transported the bear as a common carrier and was detaining the animal on his wharf until the transportation charges should be paid, at the time when the injury was inflicted upon the plaintiff, is to be deemed a person who has harbored the bear within the rule to which I have referred; inasmuch as he was under no obligation to receive and transport such an animal as a common carrier. . . But however this may be [as to his obligation to transport], no one will deny that a common carrier may rightfully undertake the transportation of a wild animal. After having entered upon this undertaking as did the defendant here, the question is whether the common carrier is to be held to the strict rule of liability applicable to the person who owns or harbors such an animal, or whether he is liable for an injury which it may inflict upon others only in event of a failure to exercise a proper degree of care in the custody and management of the beast in transit. So far as I am aware, no case has yet been decided which imposes the stricter liability (amounting practically to that of an insurer) upon the carrier. Taking into consideration the facts to which reference has been made in regard to the establishment and maintenance of zoological collections for the pleasure and instruction of the people, I am of opinion that the rule should not be extended and that the carrier should be held liable only for negligence. . . . I do not think that the contributory negligence of the plaintiff was so clearly made out as to bar him from a recovery as matter of law. . . . I think that the question of his contributory negligence was proper for the consideration of the jury and should not be determined here as a question of law. For these reasons I vote for a reversal of the judgment and a new trial. CULLEN, Ch. J. (dissenting). I dissent from the decision about to be made. No obligation whatever rested upon the defendant as a common carrier to transport wild animals. "A common carrier is not bound to receive dangerous articles, such as nitro-glycerine, dynamite, gunpowder, aqua fortis, oil of vitriol, matches, etc. . . . It was thus optional with the defendant to accept the powder for transportation or not (Piedmont Mfg. Co. v. C. & G. R. R. Co., 19 S. C. 353). In the NitroGlycerine Case (15 Wall. U. S. 524) the defendant, an express company, was held exempt from liability for damage done the property of third parties by the explosion of nitro-glycerine which the defendant had transported, it being shown that the defendant was ignorant of the contents of the package and there being nothing in the appearance of the package to cause suspicion of its dangerous character; otherwise, there is a strong intimation in the opinion that the defendant would have been liable. Of course, the same principle of law controls the transportation of wild animals, snakes, and the like. Here the defendant knew the character of the animal he was transporting, and without any legal obligation resting upon him did so voluntarily, presumably for a sufficient compensation. At the time of the injury to the plaintiff the animal was in the possession, control, and custody of the defendant to the same extent as other property transported by him. Its possession in this case is emphasized by the fact that at the time he was detaining the animal in the wharf as security for the payment of the freight due for its carriage. Under these circumstances he occupied exactly the same position and was under the same liability as any other owner or harborer of a wild animal. The charge of the trial Court that the defendant was bound to transport the animal was erroneous, but this error was in favor of the defendant instead of to his prejudice. It therefore furnished no ground for reversal. ... Doubtless the carrier may lawfully carry wild animals or dangerous substances if he so elects, but I am at a loss to see how that fact tends to limit his liability to third persons. Every reason suggested - the necessity for explosives, the establishment of zoological gardens, etc.— is just as strong an argument in favor of limiting the liability of owners and possessors of wild animals or dangerous substances as it is in favor of limiting the liability of carriers; yet it is conceded by my brother Willard Bartlett that the law in this State as to such owner or possessor remains in full force, and in no respect relaxed (Quilty v. Battie, 135 N. Y. 201; Hahnke v. Friederich, 140 id. 224). In the Quilty case, a married woman was held liable for suffering her husband to keep his (not her) vicious dog in her house. Surely, considering the advantage of, if not necessity for, domestic harmony, the woman in the case cited was entitled to at least as charitable a judgment as the defendant in this case. The judgment of the Appellate Division should be affirmed, with costs. EDWARD T. BARTLETT, HAIGHT and HISCOCK, JJ., concur with GRAY, J.; WILLARD BARTLETT, J., concurs in result in opinion, with whom WERNER, J., concurs; CULLEN, Ch. J., reads dissenting opinion, Judgment reversed, etc. 503. CHARLES VINER. A General Abridgement of Law and Equity. (Trespass, Q. a. 4. 1793, 2d ed., vol. XX, p. 532.) In trespass, if a man breaks my hedge to the damage of 4d. and beasts of the common enter and do much damage, I shall recover damages against him in respect of all the other damages; per JENNY and FINCH. BROOKE makes a quaere if he shall have trespass vi & armis and give all in evidence, or shall have it vi & armis of the breaking and action upon the case for the other damage by the entry of the beasts; and says it seems, that he shall recover all the damages by the general action of trespass vi & armis. Quaere if trespass vi & armis and upon the case may be all in one and the same writ. Brooke, Trespass, pl. 179, cites 9 E. 4. 4. 504. HEALEY v. BALLANTINE SUPREME COURT OF NEW JERSEY. 1901 66 N. J. L. 339, 49 Atl. 511 ON error to the Essex Circuit. Before DEPUE, Chief Justice, and Justices DIXON, COLLINS, and HENDRICKSON. For the plaintiff in error, C. Lincoln De Witt and Grant C. Fox (of the New York bar). For the defendants on error, Benjamin M. Weinberg and Samuel Kalisch. The opinion of the Court was delivered by |