103 N.Y.S. 1051 | N.Y. App. Div. | 1907
The. judgment.should be affirmed, with costs.
The action was ■ brought to recover damages caused by injuries inflicted by a bear kept by the defendant at his camp in the Adirondacks.. The facts are very simple, and are briefly stated, so far as they are important here. The bear was a'ferocious animal, dangerous to mankind, and was known to both the plaintiff and. the defendant to be" so.. It had, to the .knowledge of both plaintiff and defendant, on various occasions prior to the one in question, attacked, bitten and injured other persons while defendant kept it. It was safely chained up, and the.length of the chain was known to the plaintiff as well as. the defendant. The plaintiff knew and understood if he went within reach of the bear as so chained he was likely to be. attacked and injured'.
On the occasion in question he did go within reach of the bear and put himself in a position to bé attacked,; and did this knowingly, voluntarily and unnecessarily, and as a result was attacked and injured. Plaintiff was asked by the defendant’s guests 'to cause the bear to stand up so pictures could be taken of him, but he could do this safely without getting within reach of the bear so as to be injured. He knew the chain sometimes got wound up so that the bear would be temporarily, more closely' confined than when the chain was free arid at full length, and he knew it was not safe to . get within the limits which the full length of the chain permitted the bear to go. .
The question of law is whether, in view of the conceded facts, there could be a recovery in this action". The rules of law applicable to the case were laid down in Muller v. McKesson (73 N. Y. 195) and Lynch v. McNally (Id. 347).
In the former ease it was said: “ It may be that, in a’ certain sense, an action against the owner- for an injury by a vicious dog or other animal is based upon negligence, but such negligence con*sists, not in the manner, of' keeping or confining the "animal, or the care exercised in respect to confining him, but in the fact that he is ferocious and .that 'the owner knows it. * * * The negligence
In the latter case cited these same principles of law were repeated. . These cases were decided thirty years ago and have never been questioned since. They have been frequently cited and followed by the . courts of this State since that time. They state correctly the Jaw now. They are applicable to this case, and upon the conceded facts
All concurred, except Hobson, J., who dissented.
Judgment affirmed, with costs.