99 N.Y.S. 603 | N.Y. App. Div. | 1906
The infant plaintiff, a lad of about nine years of age, was very seriously injured by a bear' which was in the possession of the defendant, a common carrier. This action was brought to recover damages for. such injuries, and the right to recover is, in the complaint, placed directly upon the ground of negligence, consisting of the omission of the defendant’s servants to do certain specific things. The case went to the jury on the charge of the judge as one involving the issues of negligence and contributory negligence. The plaintiff had a verdict, and from the judgment entered thereon and from an order denying a motion for a new trial the defendant, appeals.
The following facts are uncontradicted on the record: The defendant was the proprietor of a line of steamboats carrying freight and passengers, plying between the city of New York and the city of New Haven, Conn. On or about the 25th day of May, 1903, there were received on board one of his boats for transportation from New York to New Haven four bears belonging to one Batty, who accompanied the animals in transit. The bears were confined in cages or crates, and were chained therein. Among them was a large bear, the one which inflicted the injuries upon the plaintiff. The cage or crate in which this bear was confined and secured had
It is alleged, in the.complaint that the injuries sustained by the infant plaintiff were caused by and--resulted, "from .the carelessness and negligence of the defendant, his servants,1 agents or employees in allowing and-permitting the bear to be and remain' upon the dock without being properly caged, guarded or protected, and. without" having-a proper1 and competent' person in charge, who could .have given warning to people approaching-near said'cage, or of, the dan
Regarded solely as an ordinary action to recover damages for injuries caused by negligence, in which action the burden of proof is upon the plaintiff to establish the particular acts alleged as constituting negligence, we think the verdict of the jury must be regarded as - against the weight of evidence. Viewed simply as such an action, and irrespective of another consideration which will be adverted to presently, we fail to'see that the defendant neglected any duty which he owed to the infant plaintiff.
It is clearly shown that when the bear was removed from the steamboat it was properly secured. The slide covering the space at the bottom of the cage was closed. Tlie cage was not left on the dock, but was deposited in a shed or house in which freight was stored. Ho employee of the defendant interfered with the cage or was in any way connected with the act of lifting the slide. That was done by the owner of the animal and it is to him that negligence is to be imputed. The defendant and his servants were „not bound to anticipate either that the condition of the cage would be changed by any one or that persons impelled by ciiriosity would enter the freight house. In these circumstances, we do not think it was the duty — still viewing the case as an ordinary one of alleged negligence — of the defendant to have men stationed at the cages to notify persons that bears were confined therein or to do anything other or further with regard to the animals than was done.
It is unnecessary to determine now how or whether as a general -rule negligence is involved in the subject under consideration, or whether liability accrues from the mere fact of keeping a wild animal. It is claimed by the defendant, however, that he was neither the owner nor the keeper of the bear, and that it was not in a place to which the public had access. That he was not the owner of the bear is manifest, but that it'was in the custody and under the control of the defendant’s servants is also clear. The defendant had the animal in his charge as a bailee. He had undertaken to transport it to Hew Haven, and after its arrival it was' kept upon his premises there until the freight charges were paid. It was. in his keeping. Knowledge of the vicious character of the animal is imputable to him as matter of law. Courts have gone so far as to hold that a ship is liable in admiralty to a person bitten by a' vicious dog chained in the cabin of the ship. (The Lord Derby, 17 Fed. Rep. 265.) There was evidence in the present case sufficient to show that people were, with knowledge of the defendant’s servants, in the habit of going upon defendant’s dock at Hew Haven, and into the freight liorfte in which the bear was placed, and on conflicting evidence the jury were authorized to find that the bears were in a place to which the public had access. '
But it is announced as the law of this State, in Muller v. McKesson (73 N. Y. 201), that “if a person with full knowledge of the evil propensities of an animal, wantonly excites him, or voluntarily and unnecessarily" puts himself in. the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. In such a case it cannot be said, in a legal sense, that the keeping of the animal, which is the gravamen of the offense, produced the injury. (Coggswell v. Baldwin, 15 Vt. 404 ; Koney v. Ward, 36 How, P. R. 255 ; Wheeler v.
We .think the defendant was entitled to this instruction and that - •it presented distinctly tlié question of. the infant plaintiff having voluntarily put himself in a place of danger. The- charge as made die! not refer to that separate consideration. It only referred to it in connection-with the. plaintiff exciting the bear. There was evidence in the case from which the jury might have found that the
The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
O’Brien, P. J., and McLaughlin, J., concurred; Ingraham and Houghton, JJ., concurred in result.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.