38 Barb. 14 | N.Y. Sup. Ct. | 1862
The liability of the owner or keeper of an animal of any description, for an injury committed by such animal, is founded upon negligence, actual or presumed. It is not in itself unlawful for a person to keep wild beasts, though they may be such as are of a nature fierce, dangerous and irreclaimable; but as the propensity of such animals to do dangerous mischief is well known, and is inherent and not to be eradicated by any effort at domestication, nor restrained except by perfect confinement or extraordinary skill and watchfulness, the owner or keeper of such dangerous creatures is required to exercise such a degree of care in regard to them as will absolutely prevent the occurrence of an injury to others through such vicious acts of the animal as he is naturally inclined to commit. Under such circumstances the occurrence of the act producing the injury affords sufficient evidence that the owner or keeper has not exercised the degree of care required of him, and his failure to do so is negligence. Therefore, to maintain an action for an injury caused by the vicious act of such an animal, it is not necessary to prove that it occurred through the actual
This is so because the injury results from a vicious propensity which is the natural effect and sure accompaniment of the savage and ferocious nature of the animal, and the existence of such qualities in him is equivalent to proof of express notice of the propensity. But it is apparent that the rule will not apply where the injury does not proceed from any such propensity; for it is only of its existence that the savage and ferocious nature of the animal can be regarded as notice.
In this case the injury resulted not from the act of the elephant, but from the fact that his appearance, as he was passing along the highway, caused the horse of the plaintiff to become frightened and unruly. To render the defendants liable for the damage that accrued, it would be necessary to show, not only that such is the effect of the appearance of an elephant upon horses in general, but also that the defendants knew or had notice of it; for if it is conceded that the elephant is of a savage and ferocious nature, it does not necessarily follow that his appearance inspires horses with terror. It does not appear that the elephant was at large, but on the contrary that he was in the care, and apparently under the control, of a man who was riding beside him on a horse; and the occurrence happened before the passage of the act of April 2d, 1862, regulating the use of public highways. There is nothing in the evidence to show that the plaintiff’s horse was terrified because the object he saw was an elephant, but only that he was frightened because he suddenly saw, moving upon a highway crossing that upon which he was traveling, and fully 100 feet from him, a large animate object to which he was unaccustomed—non constat that any other moving object of equal size and differing in appearance from such as he was accustomed to see might not have inspired him with similar terror. The injury which resulted from his fright is more fairly attributable to a lack of ordinary courage and
The complaint was properly dismissed, at the circuit.
Judgment for the defendants, with costs.
Emott, Brown, Scrugham and Lott, Justices.]
