
    William C. Werner, Resp’t v. Solon Winterbottom and Abram Winter, App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed June 20, 1888.)
    
    Animals—Injuries by bite op dog—When owner not liable.
    Where a person voluntarily, with knowledge of the animal’s viciousnes, goes within reach of a dog kept chained hy the owner, and is bitten by the dog, the owner is not liable.
    Appeal by defendants from a judgment entered upon the verdict of a jury against them, and from order denying their motion for a new trial.
    The action was to recover damages for injuries alleged to have been sustained by plaintiff from the bite of á dog alleged to have been kept and harbored at the stables of defendants, upon the theory that the-dog was of a vicious disposition, and known to defendants as a dangerous dog, and accustomed to bite persons. The circumstance as claimed by plaintiff, was that on the 29th of November, 1886, the plaintiff was ordered by defendants’ foreman to feed said dog, which was then chained in defendants’ stables, and while feeding said dog he seized the plaintiff and inflicted the injuries complained of. The defendants denied the ownership of the dog, and knowledge of his viciousness.
    
      Samuel Greenbaum, for app’lts; DeLagnel Berier, for resp’t.
   Sedgwick, C. J.

The action was for damages from the bite of a vicious dog alleged to have been owned and kept by the defendants. It will be assumed, although it is very ■doubtful, that the defendants owned or kept the dog, and that the animal was savage and prone to bite human beings to the knowledge of the defendants. This was not necessarily unlawful, so that under all circumstances an injury by the dog would give an action to the person injured. In Logue v. Link (4 E. D. Smith, 63), the law is declared, as it is in other cases said or implied, that a man has a right to keep a dog or any other animal, provided he is kept under restraint, so that persons pursuing their ordinary or lawful avocations are not exposed to danger.

In the present case the dog was so chained, that the plaintiff was free from danger. The danger arose only when, at the suggestion of a third person, he voluntarily, with knowledge of the dog’s propensities, went within reach of the dog, for the purpose of making the dog familiar with him by feeding him. The defendants, if they were the ■owners, had performed their duty in restraining the dog so that others were not in danger from him.

The fact that this suggestion was made by a fellow-servont, and for the purpose of making the dog peaceable to the plaintiff at other times, when the dog would not be chained, did not enlarge the responsibilities of the defendants. There was no proof that the suggestion was made within the scope of the employment of the person who made the suggestion, or that it was prompted or authorized by the defendants.

If this were otherwise, however, the maxim volenti non fit injuria is applicable as shown in Muller v. McKesson (73 N. Y., 195), and which is also relevant to the foundation of liabilities in such cases. It is there held that if a person, with full knowledge of the evil propensities of an animal, 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 be entitled to recover.”

In the present case, the first movement of the plaintin. toward the dog caused the latter to snap at him.

I am of opinion that the motion to dismiss the complaint should have been granted.

Judgment and order denying motion for a new trial reversed, and a new trial ordered, with costs of the appeal to abide the event.  