Malone v. Knowlton — 39 N.Y. St. Rep. 901

Majority

p. 901

Michael Malone, App’lt, v. Gussie Knowlton, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Animals—1Trespass—Chabge.

In an action for injuries to plaintiff caused by defendant’s bull while trespassing on plaintiff’s land, Held, that it was error for the court to refuse to charge as requested that “if the animal wa,s trespassing on the property of the plaintiff, and while there trespassing did damage to the plaintiff then, whether he was a vicious animal or known to be so to the defendant or not, the plaintiff is entitled to recover for the injury.”

Appeal from judgment in favor of the defendant, and from order denying motion for a new trial on the minutes.

This action was brought by the plaintiff and appellant against the defendant and respondent to recover damages for injuries sustained by plaintiff by being attacked by defendant’s bull and being thrown down and hooked by him while plaintiff was on his own premises. About 12 o’clock noon of the 17th of June, 1889, while plaintiff'was driving his cows to water, the defendant’s bull jumped over defendant’s portion of the line fence into the field of the plaintiff, and while plaintiff was trying to drive the

p. 902

bull off his premises he was attacked by him and sustained the injuries for which this action is brought.

Charles Haines, for app’lt; Edwards & Odell, for resp’t.

—Proof was given on the trial of this action tending to show that the bull at the time he injured the plaintiff was a trespasser upon the plaintiff’s lands. The plaintiff requested the court to charge “ that if the animal was trespassing upon the property of the plaintiff, and while thus trespassing did damage to the plaintiff thereon, whether he was a vicious animal, or known to be so by the defendant or not, the plaintiff is entitled to recover for the injury.” - The court declined so to charge. The ruling was erroneous. Van Leuven v. Lyke, 1 N. Y., 515 . The judgment should therefore be reversed, and a new trial granted, costs to abide event.

Pratt, J., concurs ; .Dykman, J., not sitting.