
    Phœbe A. Hewes vs. Owen McNamara.
    A person injured, while in the exercise of due care, by a cow driven at the time by one who was not in the exercise of due care and knew that the cow was vicious, may recover for the injury against the driver of the cow.
    Tort to recover for personal injuries received from the defendant’s cow.
    At the trial in the superior court, before Scudder, J., it appeared that the cow, while the defendant was driving her in a street in Lowell, tossed and injured the plaintiff.
    The judge instructed the jury that the burden of proof was on the plaintiff to show that she exercised due care, that the defendant did not exercise due care, that the cow was vicious, and that the defendant had notice of that fact. He further instructed them, that “ if the plaintiff had failed to prove that the cow was vicious and that the defendant had notice of that fact, still if they should find that the defendant took the cow through the populous and frequented streets of Lowell, without proper and reasonable care, restraint and custody over her, and by reason thereof she attacked and injured the plaintiff, while passing along one of said streets rightfully and using due care, he would be liable to the plaintiff for such injuries, without proof of any knowledge on the part of the defendant of the vicious habits of the cow.”
    The jury returned a verdict for the plaintiff, and in answer to questions put to them by the judge found specially “ that the defendant’s cow was vicious, and that the defendant had notice of it.” The defendant alleged exceptions.
    
      R. B. Caverly, ( T. Wentworth with him,) for the defendant.
    G. F. Richardson, (D. S. Richardson with him,) for the plain tiff, was stopped by the court.
   By the Court.

The instructions of the court and the answers of the jury to the questions submitted to them show that the jury have found that the cow was vicious; that the defendant had notice of it; that tne defendant did not exercise due care; and that the plaintiff did. Upon this finding the defendant was liable. This renders it unnecessary to consider whether the last instruc tian was accurate. Exceptions overruled.  