Malloy v. Starin

The infant plaintiff, a lad of about nine years of age, was very seriously injured by a bear which was in the possession of the defendant, a common carrier. This action was brought to recover damages for such injuries, and the right to recover is in the complaint placed directly upon the ground of negligence, consisting of the omission of the defendants’ servants to do certain specific things. The case went to the jury on the charge of the judge as one involving the issue of negligence and contributory negligence. The plaintiff had a verdict, and from the judgment entered thereon, and from an order denying a motion for a new trial, the defendant appeals.

The following facts are uncontradicted on the record: The defendant was the proprietor of a line of steamboats carrying freight and passengers, plying between the city of New York and the city of New Haven, Conn. On or about the 25th day of May, 1903, there were received on board one of his boats for transportation from New York to New Haven four bears belnging to one Batty, who accompanied the animals in transit. The .bears were confined in cages or crates, and

It is alleged in the complaint that the injuries sustained by the infant plaintiff were caused by and resulted from the carelessness and negligence of the defendant, his servants, agents, or employés, in allowing and permitting the bear to be and remain upon the dock without being properly caged, guarded, or protected, and without having a proper and competent person in charge, who could have given warning to people approaching near said cage, or of the dangers which attended the presence of the bear upon the dock, and in allowing the bear and the cage in which it was confined to be in such a position that the animal could grasp the infant, and that, had the defendant discharged the duty which it owed to the plaintiff by having the bear safely caged, guarded, and in a proper condition and position upon the dock, the accident would not have happened, and that by reason of the defendant’s failure to discharge this duty which he owed the plaintiff the injuries were received without any fault or negligence on the infant’s part. That the plaintiff intended to declare as in a simple action for negligence is also manifest from the fact that in the complaint it is alleged, that pursuant to the laws of the state of Connecticut,

Regarded solely as an ordinary action to recover damages for injuries caused by negligence, in which action the burden of proof is upon the plaintiff to establish the particular acts alleged as constituting negligence, we think the verdict of the jury must be regarded as against the weight of evidence. ■ Viewed simply as such an action, and irrespective of another consideration, which will" be adverted to presently, we fail to see that the defendant neglected any duty which he owed to the infant plaintiff. It is clearly shown that when the bear was removed from the steamboat it was properly secured. The slide covering the space at the bottom of the cage was closed. The cage was not left on the dock, but was deposited in a shed or house in which freight was stored. No employe of the defendant interfered with the cage, or was in any way connected with the act of lifting the slide. That was done by the owner of the animal, and it is to him that negligence is to be imputed. The defendant and his servants were not bound to anticipate either that the condition of the cage would be changed by any one,- or that persons impelled by curiosity would enter the freighthouse. In these circumstances, we do not think it was the duty (still viewing the case as an ordinary one of alleged negligence) of the defendant to have men stationed at the cages to notify persons that bears were confined therein, or to do anything other or further with regard to the animals than was done.

But the case is presented by the plaintiff as one in which the liability of the defendant does not depend upon precise proof of negligent acts or omissions, but upon an irrebuttable presumption of negligence, deducible from the fact that the defendant had in his custody and under his control a wild animal with knowledge of its propensities. The law is well settled that the owner or keeper of a wild or of a vicious animal, knowing its propensities, is liable for injuries caused by it, and that negligence, in the ordinary sense of the word, is not an element in the cause of action, nor is contributory negligence, in the ordinary sense of that phrase, a defense. Lynch v. McNally, 73 N. Y. 349 ; Keenan v. Percha Co., 46 Hun, 544 . In the Lynch Case it is said that the action is based upon the keeping of a vicious animal with knowledge of its propensities, and, if injury ensues, the owner is liable, and that if negligence is an element at all it is not so in the ordinary sense of that term, but consists in the act of keeping the animal with knowledge of its disposition. In Spring Co. v. Edgar, 99 U. S. 645 , 25 L. Ed. 487 , the court remarks, speaking of May v. Burdett, Law Rep. 9 Q. B. 99, that “it is important to observe that the gist of the action is the keeping of the animal after knowledge of its mischievous propensities.” In May v. Burdett, supra, it is said that a person keeping a ferocious animal is bound to keep it secure at his peril, and if it does mischief negligence is presumed. In Earl v. Van Alstine, 8 Barb. 630 , it is said that the negligence consists, not in the manner or care of confining the animal, but in the fact that it is ferocious, and that the keeper knows it, .and that proof that it is

“As to animals such as lions, bears, 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. The rule is that one who keeps lions, tigers, or other fierce and dangerous animals is liable at all events for an injury they may do.”

In American and English Ency. of Eaw (2d Ed.) p. 351, it is stated that:

“The owner of wild animals or aninr ferro naturae is as a general rule liable for all injuries done by them. Ic is not necessary to prove that the owner had knowledge of the vicious nature of the animal causing the injury, as he is conclusively presumed to have such knowledge.”

In Leonard v. Donohue, 87 App. Div. 104 , 84 N. Y. Supp. 60 , the court says:

“That the keeper or owner of an animal, such as bears, wolves, panthers, lions, etc., animals which are by nature wild and vicious, is chargeable with knowledge of their vicious tendency and disposition.”

It is unnecessary to determine now how, or whether, as a general rule, negligence is involved in the subject under consideration, or whether liability accrues from the mere fact of keeping a wild animal. It is claimed by the defendant, however, that he was neither the owner nor the keeper of the bear, and that it was not in a place to which the public had access. That he was not the owner of the bear is manifest, but that it was in the custody and under the control of the defendant’s servants is also clear. The defendant had the animal in his charge as a bailee. He had undertaken to transport it to New Haven, and after its arrival it was kept upon his premises there until the freight charges were paid. It was in his keeping. Knowledge of the vicious character of the animal is imputable to him as matter of law. Courts have gone so far as to hold that a ship is liable in admiralty to a person bitten by a vicious dog chained in the cabin of the ship. The Lord Derby (C. C.) 17 Fed. 265 . There was evidence in the present case sufficient to show that people were, with knowledge of the defendant’s servants, in the habit of going upon defendant’s dock at New Haven and into the freighthouse in which the bear was placed, and on conflicting evidence the jury were authorized to find that the bears were in a place to which the public had access. But it is announced as the law of this state in Muller v. McKesson, 73 N. Y. 201 , 29 Am. Rep. 123 , that:

“If a person with full knowledge of the evil propensities of an animal wantonly excites him, or voluntarily and unnecessarily puts himself in the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. In such a case, it cannot be said, in a legal sense, that the keeping of the animal, which is the gravamen of the offense, produced the injury. Coggswell v. Baldwin, 15 Vt. 404 , 40 Am. Dec. 686 ; Koney v. Ward, 36 How. Prac. 255; Wheeler v. Brant, 23 Barb. 324 ; Blackman v. Simmons, 3 Car. & P. 138; Brock v.

Copeland, 1 Esp. 203; Bird v. Holbrook, 4 Bing. 628. But, as the owner is held to a rigorous rule of liability on account of the danger to human life and limb by harboring and keeping such animals, it follows that he ought not to be relieved from it by slight negligence or want of ordinary care. To enable an owner of such an animal to interpose this defense, acts should be proved,' with notice of the character of the animal, which would establish that the person injured voluntarily brought the calamity upon himself.”

The trial judge in alluding to the subject stated in his charge to the jury that, in the event of their finding that the accident was due, as claimed, to the savage nature of the beast, they should consider whether or not it was in consequence, as claimed by the defendant, of his coming into such close proximity to the cage as to excite the bear, and again referred to the plaintiff as standing in such proximity to the cages as to excite the ire of the bear, and he said that if that were done the plaintiff was chargeable with contributory negligence. The defendant requested the court to charge that:

“If the plaintiff was a bright active boy, nine years of age,' who- had been to school several years, and who assisted at home and did errands for his parents, and if he goes upon an inclosed pier, the property of defendant, where the business of unloading freight was then going on, and if the boy there approached cages containing bears, knowing that there were bears therein, and stood within eighteen inches of the front of one of these cages, the front being a grated front, partly covered by a wooden screen, and is seized by one of said bears while standing there, and injured, he cannot recover for such injuries, but is guilty of contributory negligence.”

The court refused to charge that request in the form in which it was presented, and assigned as a reason that it left'out of consideration of the jury certain elements to which their attention had already been called. What those elements were is not stated.

We think the defendant was entitled to this instruction, and that it presented distinctly the question of the infant plaintiff having voluntarily put himself in a place of danger. The charge as made did not refer to that separate consideration. It only referred to it in connection with the plaintiff exciting the bear. There was evidence in the case from which the jury might have found that the infant plaintiff, with knowledge of the dangerous character of the beast, voluntarily placed himself in a position in which he could be injured. He went to the dock for the purpose of seeing the bears. He entered the house in which the bears were deposited. He walked into the passage between the cages. He turned his back to the cage in which the large bear was confined, and raised his foot, so that it came within reach of the bear. It is not to be presumed that a boy nine years of age does not know that a hear is a wild and vicious animal. It is very true that in the request the words “contributory negligence” are used, but that request is not vitiated by such use when we consider the manner in which the case was treated, namely, as one involving the issue of contributory negligence. The defendant was entitled to the instruction asked for, irrespective of any act of the boy which may have excited the bear. Had the plaintiff voluntarily and unnecessarily placed himself within reach of the wild animal, he knowing it to be wild, and was injured, to use the language of the court in Muller v. McKesson, supra, “he

The judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur; INGRAHAM and HOUGHTON, JJ., in result.