| Mass. | Feb 8, 1878
The law imposes a stringent responsibility upon a man who knowingly keeps a vicious and dangerous animal. He is liable to any person who, without contributory negligence on his part, is injured by such animal, and he cannot exonerate himself by showing that he used care in keeping and restraining the animal. He takes the risk of being able to keep him safely, so that he shall not injure others. The owner’s negligence is in keeping the animal, knowing that it is dangerous. May v. Burdett, 9 Q. B. 101. Popplewell v. Pierce, 10 Cush. 509. Card v. Case, 5 C. B. 622. But, in actions for such in
In the case at bar, it appeared that the defendant knowingly kept a vicious and dangerous stag in a large pasture, and the plaintiffs’ intestate, while in the pasture, was attacked and injured by it. The defendant requested the court to rule that if the plaintiffs’ intestate was a trespasser in the pasture, they could not recover. We are of opinion that the court rightly refused this ruling. The mere fact that the intestate was upon the defendant’s land without his consent would not defeat the right of action. The unlawful character of his act did not contribute to his injury or affect the defendant’s negligence.
In Spofford v. Marlow, 3 Allen, 176, it was held that the fact that the plaintiff was driving on the left side of the road, in violation of a statute, would not prevent his recovering for an injury from a collision caused by the negligence of the defendant. See also Smith v. Gardner, 11 Gray, 418.
In Steele v. Burkhardt, 104 Mass. 59" court="Mass." date_filed="1870-03-15" href="https://app.midpage.ai/document/steele-v-burkhardt-6416003?utm_source=webapp" opinion_id="6416003">104 Mass. 59, and in Kearns v. Sowden, 104 Mass. 63 note, it was held that, in an action for an injury to the plaintiff’s horse, caused by the negligence of the defendant, the fact that the plaintiff was permitting his horse to stand in the street in violation of an ordinance of the city did not defeat his right to recover.
In Davies v. Mann, 10 M. & W. 546, the plaintiff negligently left his donkey in a public street, with his fore legs fettered, and the defendant drove over him carelessly. It was held that the nlaintiff could recover, notwithstanding his negligence, it being a condition, but not a contributing cause, of his injury.
The fact, therefore, that the intestate was committing an unlawful act at the time of his injury would not prevent his recovery. Nor does the fact that this unlawful act was a trespass upon the defendant’s land necessarily have this effect. It is true that, as a general rule, a trespasser who is injured by a pit or dangerous place upon the land of another, excavated or permitted for a lawful purpose, cannot recover damages therefor, be
We are of opinion that, though the intestate was in the defendant’s pasture without his consent, and therefore was a trespasser at the time of the injury, yet the action may be maintained, if he was in the exercise of due care.
Upon the question of due' care, the defendant asked the court to rule that, “ if the stag kept by the defendant was ferocious, and was confined and kept in the defendant’s pasture without any intent of having the stag drive off, chase or injure people going on to the pasture, and if the plaintiffs’ intestate went into the pasture with full knowledge that the stag was there and was ferocious, then the defendant is not liable for any injury received by him while so trespassing.”
The court was not required to give this instruction in the words of the request, unless the fact that Marble knew that the stag was in the pasture and was dangerous was conclusive evidence of negligence on his part in entering the pasture. If Marble voluntarily and negligently put himself in a position which was likely to result in injury, and the injury happened, his negligence is a contributing cause, and he could not recover. The fact of his knowledge that the stag was in the pasture and was dangerous would be important evidence tending to show negligence, but we cannot say, as matter of law, that it would conclusively prove it. This might depend upon the size of the pasture, the position of the stag in it, and other circumstances which are proper for the consideration of the jury. The test
But we are of opinion that the instructions which the court gave upon the subjects embraced in the defendant’s requests were erroneous, and that this objection is open to the defendant under this bill of exceptions. Without repeating the instructions in detail, the whole tone and spirit of them was calculated to lead the jury to understand that, although Marble was guilty of negligence which contributed to his injury, yet he could recover, if in their judgment the defendant’s negligence was of a more gross and unpardonable character. In other words, the learned presiding judge adopted the rule of comparative negligence, which prevails in Illinois and Georgia, instead of the rule of contributory negligence, which prevails in this state and in most other jurisdictions. For this reason there must be a new trial. Exceptions sustained.