Briscoe v. Alfrey

Wood, J., (after stating the facts.) The statute does not place owners of the animals named beyond the protection of that universal rule which exempts men from liability for inevitable accidents. This is plain when all the provisions of the section quoted are considered together. It is not to be supposed that the legislature demanded an impossibility, and imposed a penalty for inability to avoid the inevitable. No human prescience could forestall the various contingencies of escape to which such animals are liable. Yet if the unfortunate owner is to be held responsible at all hazards, the anomalous result would be to inflict upon him a penalty for something which might be impossible for him to avoid. The ownership of the animals named is not forbidden, but expressly recognized, and the imposition of such burdens as would tend directly or indirectly to prevent or discourage the ownership and use of such animals was never contemplated. By the somewhat rigorous results to follow to the owner in case of his failure to use proper care in restraining the animals designated, the legislature evidently only designed to enforce upon him the strict observance of that ancient maxim, ‘ ‘Sic utere iuo ut alienum non laedas.” What degree of care is required? Only that which a prudent man under similar circumstances would exercise to prevent animals of the kind mentioned from running at large, taking into consideration their natural habits and propensities. It is the intentional or negligent permission of the owner for his animal to run at large, which subjects him to the civil and penal consequences prescribed by the statute. Whether the owner has exercised such care as the law requires, if the facts are-disputed, is a question for the jury. The following authorities are cited to support the' views we have expressed. Bish. Non-Cont. Law, sec. 1220 et seq.; Wolf v. Nicholson, 27 N. R. 505; McBride v. Hicklin, 124 Ind. 499; Rutter v. Henry, 46 Ohio St. 272; Leavenworth, etc., R. Co. v. Forbes, 37 Kas. 448; Fallon v. O'Brien, 12 R. I. 518 ; Presnall v. Raley, 27 S. W. 200; Klenberg v. Russell, 25 N. E. 596; McIlvaine v. Lantz, 100 Penn. St. 586,—all cited by appellee’s counsel. Counsel for appellant has called our attention to statutes and decisions of other states in which the owner of dogs are made liable absolutely for damages done by them. The status of the dog before the law is sui generis. Bish. Non-Cont. Law, sec. 1233. The vicious dog in general, and the odious sheep killer in particular (to which several of the cases cited refer), are under the-law’s especial condemnation. Without entering upon a. discussion of the reasons therefor, it suffices to say that, no legislation or decision with reference to injuries by-dogs do we regard as analogous to that of the other purely domestic animals of the kind enumerated in our statute. The instructions of the trial court were in accord with this opinion, and there was no error in its ruling admitting certain testimony to which objection was made. Its judgment is therefore affirmed.