Barrett v. Malden & Melrose Railroad , 85 Mass. 101 ( 1861 )

Bigelow, C. J.

The court was not bound to express an opinion as to the sufficiency of the plaintiff’s evidence to warrant a verdict in his favor, or to instruct the jury to find for the defendants, unless the whole testimony was closed, and the defendants intended to submit the case without offering any evi dence in defence. Bassett v. Porter, 4 Cush. 487. McGregory v. Prescott, 5 Cush. 66.

But if it were otherwise, the refusal of the court to rule as requested by the defendants was right. The General Statutes, c. 88, § 59, render the keeper as well as the owner of a dog liable to any person injured by him. As it would in many cases be ' difficult to prove that any person had property in the animal, the law holds the person who harbors him responsible for the damage which he may do while in his custody or control. There was evidence at the trial that the dog which inflicted the injury on the plaintiff was kept on the premises of the defendants for several weeks by a person in their employment, who had the charge and superintendence of their stables; and there was also evidence which tended to show that this was done with the knowledge and implied assent of their general agent or superintendent. This was clearly sufficient to warrant the jury in finding that the dog was kept by the defendants. As they could do no act except through their agents, it was competent to infer that, in keeping the dog under the circumstances disclosed by the evidence, their agent was acting in their oehalf.

It was urged by the counsel for the defendants that they, being a corporation created for a specific purpose, cannot through their officers and agents be made liable as keepers of a dog to the penalty prescribed by the statutes. But it is impossible for us to determine, as a matter of law, that a corporation established for the purpose of building and running a railroad by horse power would be going ultra vires in either owning or keeping a dog. On the contrary, it would seem to come quite within the scope of the power and authority granted to them to keep dogs to protect their stables and property from incendiaries and thieves.

Exceptions overruled.