3 Keyes 263 | NY | 1866
The action was to recover for injury sustained by being bitten by a dog kept by the defendant. The facts ‘were these, in substance: The defendant was in the poultry business, in Brooklyn, in March, 1859, and had been, for several years previously. He had a yard which he used for killing poultry and preparing it for shipping. He owned a dog, which he kept upon his premises. His kennel was some one hundred feet from the entrance gate of the yard, and he was usually fastened thereto by a chain and leather collar, except at nights and upon Sundays. The ferocity of this animal, his habit of attacking and biting people, and the defendant’s knowledge of his mischievous propensities, fully • appeared from the evidence. On two occasions, in 1858, he had bitten persons visiting the defendant’s premises on business ; and, at another time, a person in the employ of the defendant; of all of which occurrences, the defendant had, notice. As late as March, 1859, he cautioned one of his men that he had just taken into his employ, to keep out of his way until he got acquainted with him. In short, the vicious character of the animal, and that the defendant had knowledge of it, were scarcely disputed questions on the trial. In March, 1859, there was a quantity of old iron, scattered about and in a pile, in the rear part of the defendant’s yard. Just prior to the 21st March, with the view, probably, of getting it out of the way, he told one of his employees, by the name of Barnes, and a lad named Pearsall, his step-son and a member of his family, to sell or find a customer for the iron. On the 21st March the defendant was absent, and the yard was in the charge of Barnes and the defendant’s step-son. About 10 o’clock in the morning, the plaintiff, who was a junk dealer, was passing along the street with his wagon, and the boy, seeing him, came out, and took him in upon the premises to the iron. The plaintiff bought the iron, and turned to go to the street to bring in his horse and wagon to take a part of it away. As he was going out, the defendant’s dog sprang but of his house, broke his leather collar, which there was evidence tending to show was old and worn, and bit the plaintiff’s hand. At' this moment the plaintiff was
Upon this state of facts, substantially, and under a charge of the court, to which no exception was taken, save in a single particular, in respect to the rule of damages (which exception- seems now to be abandoned, as untenable), the plaintiff had a verdict. There was, however, a motion for a nonsuit (though made on specific grounds that may raise the general question whether the defendant, under the circumstances, was liable to. answer in damages to the plaintiff).
I am of the opinion that, on this point, there is no error in the judgment. The vicious character of the dog, and the defendant’s knowledge of his dangerous habits, were matters admitting of no dispute. A person, keeping a dog, knowing him to be accustomed to bite mankind, keeps him at his peril. Whoever, say the court, in May v. Burdett (9 Adol. & Ellis [N. S.] 101), keeps an animal accustomed to attack and bite mankind, with knowledge that it is so accustomed, is, jprima facie, liable in an action on the case, at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping of the animal, with knowledge of its mischievous propensities. (Smith v. Pelah, 2 Strange, 1264; Card v. Carr, 57 Eng. Com. Law, 622.) It is no defense, in such a case, that the animal is safely kept, nor do I think it a defense that the
The two exceptions taken on the trial, I deem to be untenable, The judgment should be affirmed.
All the judges concurring, Judgment affirmed.