Dufer v. Cully

By the Court. J think the evidence of the defendant’s knowledge, is pertinent. This is not an action for a breaking of the plaintiff’s close, and the complaint does not charge a trespass on the plaintiff’s premises. The case of Van Leuven v. Lyhe, and the authorities there cited touching the point, sustain the general doctrine that the scienter must be proved to render the owner of a domestic animal liable, but recognize as an exception, that “this rule does not apply when the mischief is done by such animals while committing a trespass upon the close of another.” These ■authorities base the exception upon the principle, that the common law holds a man answerable, not only for his own trespass, but also for that of his domestic animals, and as it is natural for such animals as horses, oxen, sheep and swine to rove, the owner is to take notice of the propensity at his peril, and held that where the action is trespass quare clausam fregit, proof that the animal was trespassing on the plaintiff’s grounds at the time, excuses proof of knowledge of the animal’s vicious propensity. The court distinctly held that proof of the scienter was necessary in that case, and placed the necessity on the ground that there was no allegation of a breach of the close. All the cases cited, go to the extent that when the vicious disposition of the animal is the foundation of the action, knowledge of that disposition should be brought home to the owner of the animal. [379] The defendant requested tlie court to instruct the jury, that: 1. “A plaintiff who sues for damages for negligence, as in this case, must himself be without fault;” in lieu of which the following was given. A plaintiff who sues for damages for negligence, as in this case, must not himself be guilty of any fault that contributed to the injury. The following instructions, requested by the defendant, were given as asked: 2. To render the owner oí a domestic animal liable for an injury committed by such animal, from its vicious propensity, it must be shown that the defendant had notice of its vicious propensity, or that he had reason to apprehend that the animal would do similar mischief to that complained of in the complaint. 3. In the complaint in this case, there is no allegation charging that the defendant’s bull did any act for which the law holds the defendant liable, without proving a scienter. , 4. If the defendant had no notice or knowledge that his bull had done or was disposed to do similar acts to those alleged in the complaint, the plaintiff can not recover. 5. If the bull was vicious, and had previously committed injuries similar to those alleged in the complaint, the plaintiff can not recover, if the injuries alleged in tire complaint to have been received were brought about by the acts and aggressions of the plaintiff. The verdict was for the defendant.