
    Elizabeth Kinmouth, Resp’t, v. William McDougall, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1892.)
    
    Animals—Injuries by—Contributory negligence.
    Plaintiff, a school teacher, while on the school house grounds, was attacked and injured by a ram belonging to defendant, whose premises adjoined the school house. The evidence was conflicting as to -whether-defendant had knowledge of the vicious character of the ram. It did not appear that plaintiff knew that the school children interfered with the ram or gave them permission to do so. Held, that the conduct of the children in vexing and exciting the ram could not be imputed to plaintiff, and that a judgment in her favor would not be disturbed.
    This is an appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    
      Young & Kellogg, for appl’t; J. M. Whitman (L. H. Northup of counsel), for resp’t.
   Mayham, P. J.

The plaintiff prosecuted this action to recover damages for an injury which she suffered by being butted or struck by a vicious ram, which she alleges the defendant suffered to run at large, knowing that it was accustomed to butt persons. The answer was a denial, and also that the plaintiff by her own negligence contributed to the injury of which she complains.

The trial disclosed that the plaintiff was a public school teacher, .and that the farm of the defendant adjoined the school house lot, between which and the school bouse there was no fence.

That the plaintiff while on her way to the school house, and on the school house grounds, was attacked by the defendant’s ram and knocked down and her arm was broken.

There was evidence that this ram had attacked the defendant and others to the defendant’s knowledge, And there was also evidence on the part of the defendant that it was not this but another ram of the defendant’s that was accustomed to do mischief similar to that complained of in this action, to the knowledge of the defendant, and that this ram was not, to the knowledge of the defendant, vicious. On these disputed questions the referee found with the theory of the plaintiff, and we think his finding sustained by the evidence.

The main contention of the appellant is that the plaintiff-was guilty of contributory negligence in not preventing the pupils who attended her school from vexing and exciting this ram, and that their wrongful acts in exciting and teasing this animal caused him to make the attack upon the plaintiff.

It does not appear that the plaintiff did anything to excite this animal, or that she knew that the school children interfered with him, or gave them any permission or authority to do so, and we have been cited to no authority holding a public school teacher responsible for the rude and mischievous acts of the pupils, during recess, without the knowledge or consent of the teacher.

It is probable that if-one of the scholars had been injured by this ram on the defendant’s premises, while in the act of worrying or vexing the animal, no action would lie for such injury. Such scholar would be deemed to have by his own wrongful and negligent act contributed to the injury. But in this case the conduct of the children cannot be imputed to the teacher, so as to make her a party or privy to the- wrongful acts of the children.

She was lawfully upon the school-house grounds, and so far as this case shows the ram was a trespasser there. If the defendant knew of the vicious propensities of the animal, he was bound at his peril to keep him under proper restraint. The rule is so well settled as to be elementary, that one who keeps a domestic animal which is accustomed to attack or injure mankind, with a knowledge of such vicious propensities, is liable to an action for damages at the suit of a party injured by such animal. Muller v. McKesson, 73 N. Y., 196; Loomis v. Terry, 17 Wend., 496; Qakes v. Spaulding, 40 Vt., 347.

It is true this rule might not obtain when the plaintiff was wrongfully on the premises of the defendant, where the animal was so kept and restrained by the owner that no injury would have come to the plaintiff but for his illegal act.

But that is not this case. Here the plaintiff was lawfully on her own premises, or where from her employment she had a right to be, and when the defendant’s ram was a trespasser.

In Marsh v. Hand, 120 N. Y., 315; 30 St. Rep., 1003, in a case in some respects like this, Bradley, J., says: At the time of the injury the buck sheep which made the attack on the plaintiff was trespassing upon his premises. This was prima fade sufficient to charge the owner with liability for the damages sustained by the plaintiff,” citing Van Leuven v. Lyke, 1 N. Y., 515. We have examined the exceptions taken by the defendant to the various rulings upon evideuce and findings and refusals to find by the referee, and see no error committed by him for which this judgment can be reversed.

Judgment affirmed, with costs.

Putnam: and Herrick, JJ., concur.  