Garlick v. Dorsey

48 Ala. 220 | Ala. | 1872

PETEES, J.

-The charge of the court below, which was asked by the plaintiff and refused, embodies the principle of law, upon which cases of this character are determined. Sic utere tuo, ut alienum non lasdas, is the limitation under which every person must use his own property. — 1 Bla. Com. 306; Broom’s Max. 15 Johns. 218; 17 Mass. 334;, 4 McCord, 472 ; 9 Coke, 59; Stumps v. Kelley, 22 Ill. 140, 142. One person has no right to make such use of his property as to inflict injury on the person or property of another. In Earl v. Van Alstine, (8 Barb. 630, 634,) after a careful exaihination of the decided cases, Mr. Justice Selden says: “ These authorities seem to me to point to-the following conclusions : 1. That one, who owns or keeps, an animal of any kind, becomes liable for any injury the-animal may do, only on the ground of some actual or presumed negligence on his part. 2. That it is essential to-the proof of negligence, and sufficient evidence thereof, that the owner be shown to have had notice of the propensity of the animal to do mischief. 3. That proof that the animal is of a savage and ferocious nature is equivalent to-proof of express notice.” These propositions simply show that there must be proof of negligence. If the 'animal doing the injury is ferce natura, that is, wild by nature, the owner is bound to keep it safely or not at all. If it occasions injury, the owner is bound to make a proper compensation in damages, if the person injured is not himself in fault. — May v. Burdett, 9 Q. B. 101. But if, on the other hand, the animal is mansuetce natura, rendered tame by training and culture, then the rule of evidence is relaxed, and negligence must be shown. It is not to be inferred from the nature of the animal. There must be proof that the animal was vicious and the owner knew its vicious habits. He would then become responsible if he failed properly to provide against them. — Kittredge v. Elliott, 16 N. Hamp. 77. But in whatever form it may be presented the question of liability turns upon the fact of negligence or the absence of it. — Sherm. & Eedf. on Negligence, p. 226, § 185, et seq., 2d ed. Negligence has been defined to be “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Blyth v. The Birmingham Water Works Co., 11 Exch. R. 784, per Alderson, B. The first charge was abstract. There was no proof of any mischievous propensity.

The charge asked and refused should have been given. This was error.

The judgment of the court below is reversed, and the cause is remanded for a new trial.