183 P. 241 | Cal. Ct. App. | 1919
Plaintiff, by his guardian ad litem, brought this action against defendant for injuries, alleged to have been received by being scratched by a vicious leopard, one of a number of animals kept by defendant corporation in its circus. The animal was securely caged and was not at large. Defendant had judgment and plaintiff appeals.
Plaintiff, at the time of the accident was a boy of ten and one-half years of age. On the day in question, having paid the price of admission, he entered the circus to view the animals and witness the performance in the main tent. He first entered the tent in which the animals were kept in cages, arranged in a row around the circular walls of the inclosure. A guard rope, securely fastened to posts, extended entirely along, and in front of, this row of animal cages, about three feet from the ground, and placed at such a distance that spectators could not approach within range of possible injury from the animals. This guard rope turned at a right angle from a post, near the passageway from the animal inclosure into the main tent, from which post, about three feet in height, it was carried across the end of the row of cages and fastened at a point about seven feet in height, to a pole supporting the wall of the tent. *778 In the cage nearest to the passageway, and just behind the slanting rope, was the leopard.
After viewing the animals, the plaintiff and his companion started to go into the main tent, the entrance to which they found barred by a rope. Many other people were crowding toward the same place. The boys decided to wait, and turned aside. Their view of the cages was cut off by the crowd, and, there being no obstruction to bar their way, other than the slanting rope referred to, in order to get a better view of the animals they walked under the rope and into the space between the leopard cage and the side wall of the tent, which space appears to have been about two feet wide. While the plaintiff was in this position, the leopard reached his forearm, or paw, between the bars of the cage, which were perpendicular and about three and one-half inches apart, and struck the boy's face, inflicting an injury to his right eye.
The court found that the plaintiff was injured solely because he willfully and knowingly, and without cause or excuse, placed himself within reach of the wild animal, which he knew to be ferocious and dangerous; and that the defendant, owner of the circus, was in no way guilty of negligence or lack of care in the premises, either in the keeping or exposing the leopard to view, and that the defendant did not omit to perform any duty in the premises.
Appellant contends that defendant's answer fails to deny plaintiff's allegation of negligence, and that it does not set up any contributory negligence of plaintiff as a defense to the action. [1] The complaint being predicated upon the keeping by defendant of a vicious and dangerous animal, known to defendant to be such, would have been sufficient without alleging negligence on the part of defendant. (Congress etc. Spring Co.
v. Edgar,
[2] The answer admits that defendant, and its employees, knew "that the leopard was a wild, untamed animal, of fierce, dangerous, vicious, ferocious character, nature, and disposition." By this admission, defendant charged itself with the duty toward the plaintiff, as well as all other persons, to guard the leopard in such manner as to absolutely prevent the occurrence of an injury to others through such vicious acts of the animal as it would naturally be inclined to commit. (Gooding v. Chutes Co.,
In the present case, the court found that the injury to the plaintiff resulted solely by reason of his own fault; that the plaintiff "was a bright, intelligent, and alert boy, and was as well able to care for himself as an adult person of average intelligence; that he knew that the leopard was a wild, untamed animal, of fierce, dangerous, vicious, ferocious character, nature, and disposition; that he knew the guard rope was there, and knew its purpose was to prevent spectators from approaching within range of possible injury from the leopard; that he knew that the leopard could reach its paws out through the three and one-half inch space between the iron bars composing the cage, in which it was confined; and that he willfully and knowingly placed himself within reach of the animal." If this finding shall be allowed to stand, it will be sufficient to support the judgment in the case.
On the stand, the boy testified that he knew that the leopard was dangerous and ferocious, and that the guard rope was placed to keep people away from the animals, because they were dangerous; that he knew the safe place from which to look at the animals would have been on the outside of the rope. He further testified: "There was such a crowd of people, that I could not see the animals, so I walked back of the cage." He further testified that he did not know how close to the cage he was when the leopard hit him; that he thought he was far enough from the cage, so that the leopard would not touch him. The boy's companion said to him while they were standing between the wall of the tent and the leopard cage: "Don't go too close." There was evidence, also, that the manager of the show, and the superintendent, were standing about thirty feet away from the leopard cage. They saw the boys go under the rope "and hollered to them." Before they had time to do more than start to get the boys out of the dangerous place, the plaintiff had been hurt. No other guards or attendants *781 appear to have been near the scene of the accident. Signs reading, "Danger! Keep Away," were placed on all of the animal cages.
[4] In view of the testimony in the case, we are of the opinion that we cannot go behind the findings of the court, to the effect that the plaintiff failed to use ordinary care. "Youth is ever the time of heedlessness, of impulsiveness, and of forgetfulness" (Guyer v. Sterling Steam Laundry Co.,
[5] Whether a minor of tender years comports himself with the care and prudence due from one of his years and experience is strictly a question to be determined on the evidence. The question as to the capacity of a particular child at a particular time to exercise care in avoiding a particular danger is one of fact, falling within the province of a jury (or court) to determine. (Mayne v. San Diego Electric Ry. Co.,
We cannot say, as matter of law, that the plaintiff entered into the forbidden space, between the leopard's cage and the wall of the tent, without a full appreciation of the dangers and risk, and without sufficient judgment to know how to avoid them. These matters, and the further question whether or not he duly exercised such judgment as he possessed, were considerations of fact. (Foley v. California Horseshoe Co.,
Just how far to apply the rule of accountability to a bright, ten year old boy at a circus, with the allurement and excitement attendant thereto, and keeping in mind the propensity to curiosity every normal boy possesses, was, no doubt, a matter of grave concern to the trial court, as it has been to us. The court below, having before it all the facts and witnesses in the case, and particularly having an opportunity to hear the testimony, observe the actions, and determine the intelligence of the injured boy, has determined and announced its conclusion, which we do not feel we may properly reject.
The judgment is affirmed.
Kerrigan, J., and Richards, J., concurred.
