
    Archibald A. Hunter, Respondent, v. The Metropolitan Express Company, Appellant.
    (Supreme Court, Appellate Term,
    March, 1906.)
    Animals — Liability of owner for acts of animal — Contributory negligence— Pleading—Weight of evidence.
    The prima facie liability of one who keeps a dangerous animal . with knowledge of its vicious propensities can be rebutted only by proof that the injured party, with knowledge of its disposition, wantonly excited it or voluntarily or unnecessarily put himself in its way.
    In an action to recover for injuries sustained in consequence of the kick or bite of a vicious animal kept by one with knowledge of its vicious propensities, a charge that the presumption of defendant’s liability could be met only by credible evidence sufficiently strong to overcome the prima facie case is proper.
    Allegations in the complaint as to contributory negligence are unnecessary, and may be disregarded as surplusage.
    Appeal by the defendant from a judgment of the Oity Court of the city of-Hew York rendered in favor of the plaintiff.
    Arthur K. Wing, for appellant.
    R L. Fritchard, for respondent.
   O’Gorman, J.

In actions brought to recover damages for injuries sustained in consequence of the kick or bite of a vicious animal, the principles governing the ordinary negligence action have no application. Miller v. McKesson, 73 N. Y. 195; Lynch v. McNally, Id. 347; 7 Daly, 128; Keenan v. Gutta Percha, 46 Hun, 544; affd., 120 N. Y. 627. One who keeps a dangerous animal, with knowledge of its vicious propensities, incurs a prima, facie liability for any injury caused by it; and this presumption or prima facie case can be rebutted only by proof that the plaintiff, with knowledge of the evil propensities of the animal, wantonly excited it or voluntarily or unnecessarily put himself in the way of the animal. Cases, supra. In such a ease, the act of the plaintiff will be deemed to be the proximate cause of his injury. The conduct imputed to the plaintiff would not bring him within this exception to the rule; but, even if the evidence in that respect justified its submission to the jury, the learned trial judge committed no error in his charge. The presumption against the defendant could be met only by credible evidence sufficiently strong to overcome the prima facie case; and this, in effect, is what the learned trial judge said to the jury. The allegations of contributory negligence which appear in the complaint were wholly unnecessary. They may be disregarded and treated as surplusage. The case was fairly submitted to the jury. The verdict is sustained and should not be disturbed.

Scott and Hewburger, JT., concur.

Judgment affirmed, with costs.  