76 W. Va. 604 | W. Va. | 1915
To recover damages for the death of his four year old son, resulting from a vicious attack by defendant’s horse, plaintiff brought this action; and to a judgment upon an adverse verdict this writ of error was awarded him. Two assignments only need be discussed. These require the expression of an opinion upon the exclusion and rejection of evidence and misdirection by instructions.
When kicked by the horse, the child, and its sister seven years old, were, with the permission of their mother,- playing at their usual place of entertainment under a shade tree standing immediately without the fence enclosing the residence of their parents. The horse was, at the same time, depasturing on the unenclosed lands of a colliery company without objection by the land owner and not in violation of any statute of the state or ordinance of the incorporated village wherein the accident occurred. Except during a few months, defendant had owned and continuously kept and used the animal about eleven years in hauling goods to and from a store conducted by him in the same village.
As an essential element of the right to damages, it was incumbent upon plaintiff to show, and by the excluded and unadmitted testimony he undertook to show, circumstances evincing knowledge by defendant of the disposition of the horse violently to attack men, women and children. These manifestations of viciousness, covering a period of about three years prior to the accident causing the death of the Butts child,’ were fully established by competent proof admitted at the trial and not contradicted. At least two of the instances proved occurred only a few days before the injury here complained ■ of. Some of them occurred near the residence and store of defendant, and therefore virtually under
One such incident proved was an attack upon a boy named Polinsky about two years prior to the accident under consideration. On defendant’s motion, the court excluded the testimony of the Avitness Cooper, and declined to permit Mrs. Treadway to testify, that for two or three weeks immediately subsequent to that occurrence the horse remained tethered while at pasture in close proximity to defendant’s residence and place of business. This evidence clearly was proper, and should not have been excluded and refused. It had some probative value upon the question of scienter. 1 Rui. Oas. Law 1091; 3 Enc. Law & Prae. 980; Wigmore on Ev. §282. It introduced a circumstance tending to sustain the theory advanced, that the restraint imposed upon the animal was with defendant’s knowledge, because virtually under his immediate observation, and that for this reason, he ought to have known the cause of the limitations placed upon the horse’s movements. Indeed, he is presumed to know that which, in the exercise of ordinary diligence, he should have ascertained. If any such restraint was imposed — a fact solely for the jury — the reasonable inference is that defendant must have known the cause thereof and the necessity therefor, if he did not himself actually shackle the horse. A contrary conclusion would not accord with ordinary human experience. Nor did the time intervening the two incidents necessarily render the evidence incompetent or inadmissible. The lapse of two years did not wholly negative the imputation naturally raised by the evidence excluded and withheld. It nevertheless had some testimonial force and probative value. Whether, when admitted, the evidence, notwithstanding the lapse of time, would reasonably justify the conclusion that defendant then had, or, as a man of ordinary prudence exercising due care in the control and management of his own property, ought to have had, knowledge of the characteristic traits of
The instructions criticized doubtless led the jury to believe that defendant was not chargeable for the malicious conduct of his horse unless he had direct and positive knowledge of actual mischief theretofore done by it. If they had that effect, or were so worded as to induce that belief, the theory on which they were framed was an erroneous one, in view of the facts proved. While the doctrine sustained by many decisions, of which defendant cites several, is that notice or knowledge of the vicious propensities of an animal is an essential prerequisite in order to charge the owner, yet the true doctrine is that the knowledge need not necessarily be actual in the ordinary acceptation of the term. Either constructive or imputed notice is suffiicent. If in the exercise of reasonable diligence and common prudence the owner ought to have known an animal owned or kept by him was dangerously inclined and likely would, if unrestrained, inflict injury upon the person or property of another, he is chargeable as if he had actual, direct and positive notice of acts of viciousness committed by it. Hayes v. Smith, 56 N. E. (Ohio) 879; Knowles v. Mulder, 74 Mich. 202, 16 Am. St. 627; Harris v. Packing Co., 43 Wash. 647; Holt v. Myers, 93 N. E. (Ind.) 31, 1002.
In a Texas case, an express company, having permitted the use of dangerous and unruly mules for five or six months, was held chargeable in damages for injuries resulting from a collision occasioned by the viciousness of the animals, on the assumption that defendant knew or in the exercise of ordinary care could have known they were inclined to do mischief. Hxpress Co. v. Parcarello, 162 S. W. 927. So in Illinois the owner was held chargeable for injuries inflicted by a mule upon a servant, without actual knowledge of the animal’s vicious disposition, on facts deemed sufficient to prove that the master by the exereise of diligence would, have known of such tendency. Miller v. Coal Co., 239 Ill. 626.
So that, in eases involving the conduct of animals consuetae naturae causing injury to the person or property of another, the inquiry is whether the owner actually knew tire animal’s malicious inclination, or if he did not, whether its acts of viciousness were of such notoriety or frequency and within’ such nearness to his residence or place of business or in such other circumstances as to cause a reasonable man, exercising due care over his own property for the protection of the rights of others, to take notice of the evil propensity. An answer to these interrogatories necesasrily will go far towards
Plaintiff’s instruction refused did not altogether conform to the views indicated by the authorities cited. It failed to present fully the elements essential to an adequate comprehension by the jury of the facts from which reasonably would arise an inference of knowledge.
Nor do the legal principles announced by these cases conflict with the doctrine stated in Johnson v. Manufacturing Co., 65 W. Va. 544, holding that an owner is not chargeable with liability unless he “had previous knowledge” of the animal’s vicious propensity. The source or character of the knowledge or notice deemed requisite that case does not attempt to define, because not involved. Nor did it question, indeed it virtually concedes, the sufficiency of constructive notice. The facts being dissimilar, the cases are controlled by different principles. Other questions discussed by counsel need not now be considered.
For the reasons stated, we remand the case for new trial.
Reversed, verdict set aside, and new trial ordered.