192 A.D. 263 | N.Y. App. Div. | 1920
This action is brought to recover for personal injuries sustained by the plaintiff at the so-called Bronx Zoo, where there were on exhibition various wild animals.
The plaintiff, a bright, intelligent girl of the age of twelve years and ten months, on November 17, 1917, in company with two other girls of about her own age and some younger children, went from her home two or three blocks distant to the Bronx Park Zoological Gardens to play. Between four and five o’clock in the afternoon the plaintiff with her two companions of about the same age were engaged in playing ball on a platform near the bear cage. The plaintiff stood nearest the cage and her companions some distance away, the three girls forming a triangle. As the ball was tossed to the plaintiff it passed her, rolled across the concrete sidewalk in front of the bear cage, underneath the fence and from thence under the cage itself. The cage proper consisted of iron bars set in concrete, and the floor, according to the testimony, was' elevated a foot or fourteen inches above the ground. Outside of the cage proper and three feet distant therefrom, there was erected a fence consisting of iron bars and uprights to keep
The complaint does not allege that plaintiff’s injuries were sustained through any neglect on the part of the defendant, or by reason of any failure in the performance of any duty on defendant’s part. The plaintiff contended upon the trial, and urges upon this appeal, that the fact that the bear was feres natures and was kept by the defendant in its zoological garden at Bronx Park, and that the plaintiff received injury from said animal, constituted plaintiff’s cause of action; that defendant’s liability was absolute. The theory of the plaintiff, as stated by counsel upon the argument, was that the keeping of the bear which injured plaintiff constituted a nuisance. Counsel for the plaintiff expressly disavowed any claim that defendant had been guilty of any act of negligence. No such act or failure of duty in any respect is alleged in the complaint, nor was it attempted to be proved upon the trial.
Upon the trial the learned court dismissed the complaint at the conclusion of the plaintiff’s case upon the ground that the plaintiff, by her evidence, had established no cause of action against the defendant. I think the ruling of the court was correct.
The plaintiff, appellant, relies upon a number of well-settled cases as authority for the right of recovery of a person injured by vicious animals or animals ferae natures harbored or kept by individuals. In none of the cases, so far as I am able to discover, were the precise facts presented that are involved in the case at bar. In all of plaintiff’s cases the animals, either vicious dogs or wild animals feres natures, were kept by the defendant as a private enterprise. In many of the cases wild animals were kept for exhibition purposes, the public being charged admission to view them, and the enterprise was conducted for profit by the defendant. In other cases, such as Ervin v. Woodruff (119 App. Div. 603), the animal was kept by the defendant as a whim or for his own personal interest. I think a situation different from that in the case at bar arises, where the animals were maintained as a public enterprise under legislative authority for educational purposes and to entertain the public.
While we do not base our affirmance of the judgment appealed from upon the ground of plaintiff’s contributory negligence, the evidence shows that the plaintiff unnecessarily and voluntarily, with full knowledge of the danger to her, placed herself in position where the bear was able to reach her. The plaintiff admits that she knew that if she put
But so far as a determination of this appeal is concerned, it is unnecessary for us to hold that as matter of law the plaintiff was guilty of such contributory negligence as would bar a recovery for her injuries. Plaintiff is not seeking a recovery by reason of. any negligence on the part of the defendant, but solely because defendant kept a ferocious animal that injured her; that in keeping the bear defendant maintained a nuisance, and is answerable for plaintiff’s injuries. We hold that plaintiff cannot maintain her action upon any such theory. The defendant had a legal right to keep the animal and, in the absence of allegation and proof of some act of negligence or failure of duty on its part, the defendant cannot be held liable to respond to plaintiff in damages.
The complaint was properly dismissed, and the judgment and order appealed from should be affirmed, with costs.
Clarke, P. J., Laughlin, Smith and Page, JJ., concur.
Judgment and order affirmed, with costs.