
    William Ervin, Appellant, v. Timothy L. Woodruff, Respondent.
    Fourth Department,
    May 1, 1907.
    Animals — injury by chained bear — contributory negligence barring recovery.
    One who voluntarily goes within reach of a bear which is safely chained in order to make it stand up, cannot recover for injuries sustained where he knew that the bear was ferocious and had on various"occasions attacked and bitten other persons.
    Although the owner of a ferocious animal- is not relieved from liability by reason of slight negligence of want of ordinary care on the part of a person injured, a recovery is barred if the. person with full knowledge wantonly excites the animal or voluntarily and unnecessarily puts himself in' its way."
    Robson, J., dissented.
    Appeal by the plaintiff, William Ervin,, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of-Herkimer on the 24tli day of December, 1906, upon the dismissal of the complaint by direction of the court, at the close of the plaintiff’-s cáse, upon a trial at the Herkimer Trial Term.
    
      
      P. K. Fitzgerald, for the appellant. '
    
      White, Gheney & Shinaman, for the respondent.
   Williams, J. :

The. judgment.should be affirmed, with costs.

The action was ■ brought to recover damages caused by injuries inflicted by a bear kept by the defendant at his camp in the Adirondacks.. The facts are very simple, and are briefly stated, so far as they are important here. The bear was a'ferocious animal, dangerous to mankind, and was known to both the plaintiff and. the defendant to be" so.. It had, to the .knowledge of both plaintiff and defendant, on various occasions prior to the one in question, attacked, bitten and injured other persons while defendant kept it. It was safely chained up, and the.length of the chain was known to the plaintiff as well as. the defendant. The plaintiff knew and understood if he went within reach of the bear as so chained he was likely to be. attacked and injured'.

On the occasion in question he did go within reach of the bear and put himself in a position to bé attacked,; and did this knowingly, voluntarily and unnecessarily, and as a result was attacked and injured. Plaintiff was asked by the defendant’s guests 'to cause the bear to stand up so pictures could be taken of him, but he could do this safely without getting within reach of the bear so as to be injured. He knew the chain sometimes got wound up so that the bear would be temporarily, more closely' confined than when the chain was free arid at full length, and he knew it was not safe to . get within the limits which the full length of the chain permitted the bear to go. .

The question of law is whether, in view of the conceded facts, there could be a recovery in this action". The rules of law applicable to the case were laid down in Muller v. McKesson (73 N. Y. 195) and Lynch v. McNally (Id. 347).

In the former ease it was said: It may be that, in a’ certain sense, an action against the owner- for an injury by a vicious dog or other animal is based upon negligence, but such negligence con*sists, not in the manner, of' keeping or confining the "animal, or the care exercised in respect to confining him, but in the fact that he is ferocious and .that 'the owner knows it. * * * The negligence consists in keeping such an animal. * * * There are expressions in some of the cases,indicating that the liability of the owner is not affected by the negligence of the person injured. * * * ■ I do not think that it can be claimed from /authority, and certainly not from principle, that no act of the person injured would preclude .him frpm recovering, however negligent or willful. * * * If a person with full knowledge of the evil propensities of an animal wantonly excites him, or voluntarily and unnecessarily puts himself in. the way of such an animal, he-would be adjudged to have brought the injury upon himself, and ought not to bp/éntitled to recover. In such a case it cannot be said, in a legal sense, that the keeping of the animal, which is the gravamen of the offense, produced the injury. * * * But as the owner is held to a rigorous rule of liability on account of the danger to human life and limb, by harboring and keeping such animals, it follows that he ought not to be relieved from it by slight negligence or want of ordinary care. To enable an owner ¿f such an animal to interpose this defense, acts should be proved with notice of the character of the animal, which would establish that the person .injured voluntarily brought the calamity upon himself. *' * * As negligence, in the ordinary sense, is not the ground of liability, so contributory negligence, in its ordinary meaning, is not a defense. These^ terms are not used in a strictly legal sense in this class of actions, but for convenience. There is considerable reason in favor of the doctrine of absolute liability for injuries produced by a savage dog, whose propensities are known to the owner, on the ground of its being in the interest •of humanity and out of regard to the sanctity of human life, but as these animals have different degrees of ferocity, and the rule must be a general one, I think, in view of all the authorities, that the rule of liability before indicated is a reasonable one, and that the owner cannot be relieved from it by any act-of the person injured, unless it be one from which it can be affirmed that he caused the injury himself, with a full knowledge of its probable consequences.”

In the latter case cited these same principles of law were repeated. . These cases were decided thirty years ago and have never been questioned since. They have been frequently cited and followed by the . courts of this State since that time. They state correctly the Jaw now. They are applicable to this case, and upon the conceded facts appearing upon the trial they precluded a recovery by the .plaintiff for the injuries sustained by him. - He knew the vicious disposition of the bear. He knew it had frequently attacked piersons before who came within its reach. He knew the length of the chain by which it was confined, and though it was sometimes wound up by the bear itself so as to confine him within a more limited ■ circle, yet it was liable to be and generally was unwound so as to . permit it the full length of the chain. Knowing all these things, the plaintiff voluntarily and unnecessarily put himself- within reach of the' bear and was injured. He brought the calamity upon himself and could not recover damages therefor.

All concurred, except Hobson, J., who dissented.

Judgment affirmed, with costs.  