The owner of domestic animals not being liable, except by statute, for injuries committed by them, unless he is shown to have knowledge of their tendency to commit such injuries, the evidence excepted to as to the propensity of the defendant's horse to injure mankind, and to his knowledge, was so obviously legitimate, that, unaided by brief or argument, we find no ground for its exclusion.
The exception to the charge stands no better. It is not necessary that the vicious acts of a domestic animal brought to the notice of the owner should be precisely similar to that upon which the action against him is founded. If it were, there would be no
actionable redress for the first injury of a particular kind committed by such an animal, because its owner would necessarily be exempt from all liability until it should commit another injury of exactly the same kind. It is enough to say that the law sanctions no such absurdity.
Neither is it necessary, in order to fasten a liability upon the owner, that he have notice of a previous injury to others. Rider v. White,65 N.Y. 54; Godeau v. Blood, 52 Vt. 251; Worth v. Gilling, L. R. 2 C. P. 1; Judge v. Cox, 1 Stark. 285; Cooley Torts 344. It is the propensity to commit the mischief that constitutes the danger (M'Caskill v. Elliot, 5 Strob. 196), and therefore it is sufficient if the owner has seen or heard enough to convince a man of ordinary prudence of the animal's inclination to commit the class of injuries complained of. Keightlinger v. Egan,65 Ill. 235; Buckley v. Leonard, 4 Denio 500; Applebee v. Percy, L. R. 9 C. P. 647; Abb. Trial Ev. 645; Shearm. Red. Neg. (3d ed.), s. 190. The question in each case is, whether the notice was sufficient to put the owner on his guard, and to require him, as an ordinary prudent man, to anticipate the injury which has actually occurred. Cooley Torts 344. Hence it is unnecessary to prove more than that he has good cause for supposing that the animal may so conduct. Kittredge v. Elliott, 16 N.H. 82. And a good cause for so supposing in the present case was the defendant's knowledge that the animal was of vicious disposition and "a notorious kicker;" and the jury might well conclude from these undisputed facts alone that the defendant had sufficient knowledge of its vicious nature and propensity to make him liable for its subsequent attack on the plaintiff in consequence of that nature and propensity. For when it is made to appear that any domestic animal is vicious and inclined to do hurt, and the owner has notice, express or implied, of the fact, the law then imposes upon him the duty to keep the animal secure, and makes him liable to any person who, without contributory negligence on his part, is injured by it. And this rule is so entirely reasonable, and is so strictly in accordance with the legal and moral duty obligatory upon everybody so to keep and use his own property as not to wrong and injure others, that authorities need not be cited in its support.
The instruction requested was not correct. As modified by the court, it was sufficiently favorable to the defendant.
Exceptions overruled.
BINGHAM, J., did not sit: the others concurred.