Koney v. Ward , 36 How. Pr. 255 ( 1867 )

By the Court.—Van Vorst, J.

A person who keeps a domestic animal which has, to his knowledge, a vicious propensity, is hable in damages for the injuries committed by it in the indulgence of its evil disposition. The action rests upon the negligence of the owner in keeping an animal which is so likely to prove injurious and hurtful. The scienter is the gist of the action. In Coggswell v. Baldwim, (15 Vermont R. 404), it was decided that the owner of a “ cow accustomed to hook— the vicious propensity being known to the owner—is liable for damages done by her, although it be done in the highway, against the land of the owner, and while going to her usual watering place.” In that case, the owner of the cow, knowing her propensities, had caused buttons to be put on her horns as a preventive. But the cow hooked the plaintiff’s horse, in the road, so that of the wound made he died, and the plaintiff had a verdict. In the case before this court, it appears that the defendant knew that his horse had the habit of biting, and to guard against it he kept him muzzled. At the time the injury was sustained by the plaintiff, the horse was standing on the sidewalk unmuzzled.

This was negligence. The horse should not have been allowed to stand in that condition in the public street any length of time. He should have been immediately muzzled after being fed and watered, and before he was hitched to the wagon. But it is claimed that the plaintiff himself was negligent, and, therefore, should not be allowed to recover. It is an unyielding rule that a plaintiff, prosecuting for the negligence of another, should himself be without any misconduct or fault, and should have used ordinary care. An action cannot be maintained when an injury has resulted from the negligence of both parties. It is the duty of every person to take care of his own safety (Fox v. Glastenbury, 29 Conn. 204), and in the case of Coggswell v. Baldwin, above cited, it was held, that if the injury to plaintiff’s horse was occasioned by his own negligence, the plaintiff would not be entitled to recover. But I see nothing in this case which should charge the plaintiff with any want of ordinary care, or implicate him in any negligence. Plaintiff was where he had a right to be—passing on the sidewalk. It is true he knew the vicious propensity of the horse, but he also knew that defendant kept him muzzled. He came suddenly on the animal, and instantly turned from the walk to pass him. He had a right to presume that the horse standing there was muzzled. In fact, he did not see the horse until he came up to him, and was bitten in the act of passing.

He was in no attitude to the animal from which any negligence could be imputed to him. He did not court the danger, or rashly expose himself to injury. In Smith v. Pelah (2 Strange, 1264), the Chief Justice ruled, “ that if a dog once bites a man, and the owner, having notice thereof, keeps the dog, and lets him go about, or lie at his door, an action will lie against him at the suit of a person who is bit, though it happened by such person treading on the dog’s toe.”

Judgment affirmed.