
    Walter R. Molloy, an Infant, by William H. Gardner, His Guardian ad Litem, Respondent, v. John H. Starin, Appellant.
    First Department,
    June 15, 1906,
    Negligence ^ injury to infant by ferocious animal in custody of common carrier — scienter of vicious character — contributory negligence.
    The plaintiff, an infant, was injured by a caged bear which the defendant, a common carrier, was transporting.- The defendant had placed the cage con-staining the animat on its dock, and at that time the sliding door completely covered the bars of. the cage.' This door was raised by the owner of the bears, who accompanied the animals, in order to feed them, and during the temporary absence of the owner the plaintiff, who came to the dock on purpose to see the animals, while standing in a narrow passage between two'cages, was caught and injured by one of the bears, which thrust' its- paw under the bars of the cage.
    The action, in-form, was not based.upon the fact that the defendant, was keeping a vicious.animal, hut wholly upon the negligence of the. defendant in failihg ' properly to cage the animal and in leaving it without a proper person in charge. . ■ " ‘ -< •
    Qn appeal from a judgment for the plaintiff, "
    
      Held, that although the defendant.was chargeable with knowledge of. the- vicious .character óf the animal as a matter of law, yet a person who, with knowledge of the vicious nature of the animal, voluntarily puts himself -in a place of danger}cannot recover;
    
      That as the plaintiff had voluntarily gone upon the defendant’s premises to see the hear and had knowledge of its dangerous character, it was error to refuse to charge in substance that if the infant plaintiff voluntarily put himself in a place of danger he was guilty of contributory negligence which barred a recovery.
    Liability of one keeping a vicious animal discussed.
    Appeal by the defendant, John H. Starin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the lltli day of January, 1906, upon the verdict of a jury for $10,000, and also from aft order entered in said clerk’s office on the 12th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Dickinson W. Richards, for the appellant.
    
      Jonathan Deyo, for the respondent.
   Patterson, J.:

The infant plaintiff, a lad of about nine years of age, was very seriously injured by a bear' which was in the possession of the defendant, a common carrier. This action was brought to recover damages for. such injuries, and the right to recover is, in the complaint, placed directly upon the ground of negligence, consisting of the omission of the defendant’s servants to do certain specific things. The case went to the jury on the charge of the judge as one involving the issues of negligence and contributory negligence. The plaintiff had a verdict, and from the judgment entered thereon and from an order denying a motion for a new trial the defendant, appeals.

The following facts are uncontradicted on the record: The defendant was the proprietor of a line of steamboats carrying freight and passengers, plying between the city of New York and the city of New Haven, Conn. On or about the 25th day of May, 1903, there were received on board one of his boats for transportation from New York to New Haven four bears belonging to one Batty, who accompanied the animals in transit. The bears were confined in cages or crates, and were chained therein. Among them was a large bear, the one which inflicted the injuries upon the plaintiff. The cage or crate in which this bear was confined and secured had three solid wooden ' sides, a solid wooden top and bottom, rind in ■ front k grating with a wooden slide, which could be let down so- as to completely .close np tlie cage. The' iron grating uprights were fixed in a. transverse bar of iron about eight or ten inches above the bottom of the cage. - When tlie' slide was raised there was an open space eight or ten inches in height between that, bar and the bottom of the cage. At about half-past four o’clock on the morning of the 26th of May, 1903, the animals were removed by the defendant’s servants from the steamboat at .New Haven to'a dock belonging to the defendant, ahd were placed in a freight shed or house oii such dock.. At that time the slide at the front of the cage in which the large bear was confined was down "and the animal was completely inclosed.. The cages were arranged in 'pairs opposite each other, with- an intervening space or passage of a few feet. At about a ■ quarter-past six o’clock in -the morning Batty, the owner of the animals, went into the shed or house for the purpose of feeding the bears or giving them Water. He, lifted the slide of the cage-in which the large bear was secured so as to leave exp'osed'the opening between .the iron bar in which "the uprights of the grating were inserted and the bottom of the cage. He went away leaving the cage'in that condition. At about half-past-seven o’clock the infant plaintiff and his brother caine on the dock for the purpose of looking at the bears, the arrival of which they-hacL anticipated. The-public had access to the dock. The plaintiff and his brother entered the freight shed and stood in the passageway between the four cages. "The plaintiff Wks within eighteen inches of" the cage containing the: large bear.; his back turned .'towards that cage; pneof his feet was raised and nearer the cage, and while the plaintiff was in that attitude the bear thrust its claws through the .open space above-, described, pulled the boy’s foot into-the-cage and mangled it so that amputation became necessary.

It is alleged, in the.complaint that the injuries sustained by the infant plaintiff were caused by and--resulted, "from .the carelessness and negligence of the defendant, his servants,1 agents or employees in allowing and-permitting the bear to be and remain' upon the dock without being properly caged, guarded or protected, and. without" having-a proper1 and competent' person in charge, who could .have given warning to people approaching-near said'cage, or of, the dangers which attended'the presence of the bear iipon the dock, and in allowing- the bear and the cage in which it was confined to be in such a position that the animal could grasp the infant, and that had the defendant, discharged the duty which he owed to the plaintiff by having the bear safely caged, guarded and in a proper condition and position upon the dock, the accident would not have happened, and that by reason of the defendant’s failure to discharge this duty which he owed the plaintiff the injuries were received without any fault or negligence on the infant’s part. That the plaintiff intended to declarers in a simple action for negligence is also manifest from the fact that in the complaint it is alleged that pursuant to the -laws of the State of Connecticut a person injured solely through the negligence and carelessness of .another has a right of action against such person to recover damages for the injuries sustained.

Regarded solely as an ordinary action to recover damages for injuries caused by negligence, in which action the burden of proof is upon the plaintiff to establish the particular acts alleged as constituting negligence, we think the verdict of the jury must be regarded as - against the weight of evidence. Viewed simply as such an action, and irrespective of another consideration which will be adverted to presently, we fail to'see that the defendant neglected any duty which he owed to the infant plaintiff.

It is clearly shown that when the bear was removed from the steamboat it was properly secured. The slide covering the space at the bottom of the cage was closed. Tlie cage was not left on the dock, but was deposited in a shed or house in which freight was stored. Ho employee of the defendant interfered with the cage or was in any way connected with the act of lifting the slide. That was done by the owner of the animal and it is to him that negligence is to be imputed. The defendant and his servants were „not bound to anticipate either that the condition of the cage would be changed by any one or that persons impelled by ciiriosity would enter the freight house. In these circumstances, we do not think it was the duty — still viewing the case as an ordinary one of alleged negligence — of the defendant to have men stationed at the cages to notify persons that bears were confined therein or to do anything other or further with regard to the animals than was done.

. But the case is presented by the plaintiff - as one in which, the liability of the ■ defendant does not depénd upon precise, proof of negligent' acts or omissions, 'but upon an irrebuttable presumption of negligence deducible from the fact .that the defendant, had in his custody and under llis control a wild-animal with knowledge of its propensities. The law is well settled that the owner or keeper of a Wild or of a vicious animal, knówung its propensities, is liable for injuries caused by it and that negligence in the Ordinary sense of the word is not an element in the cause of action, nor is contributory negligence, in the ordinary sense of that phrase, a defense. (Lynch v. McNally, 73 N. Y. 349 ; Keenan v. Gutta Percha Mfg. Co., 46 Hun, 547.) In the Lynch case it-is said that the action-is based upon the keeping oí a vicious animal with knowledge of its propensities, and,, if injury ensues, the owner is liable, and .that if ¡ negligence is an element at all, it is not so in the ordinary sense of that term, but con- ■ sists in the act of keeping the animal with knowledge of its disposition. In Spring Co. v. Edgar (99 U. S. 645) the court remarks, ' ■speaking of May v. Burdett (9 Q. B. 401), that “ it is important to observe that the gist of the action is. the keeping of the ' animal after knowledge of its mischievous propensities.” In May v. Burdett (supra) it is said that a person keeping a ferocious animal is bound to keep it. secure at his.peril,, and if it does mischief negligence is presumed. In Earl v. Van Alstine (8 Barb. 630) it is said that the négligence consists not in the manner .or care of-confining the animal, but in the fact that it is ferocious and that the keeper knows it, and that proof that it is of a savage and ferocious nature is equivalent to proof of express notice.. In Card v. Case (57 Eng. C. L. 622) the court said that “the circumstances of the defendants keeping the animal negligently, is not essentialbut that the gravamen is the keeping a ferocious animal..”’ In Van Leuven v. Lyke (1 N. Y. 516) it is said that “ as to animals, ' *' * * such as lions, tigers and. the like, the person who keeps them is liable for any damage they may do without notice, on the ground that by nature- such animals are fierce and dangerous.” The rule is that one who keeps, lions, tigers," or other fierce and dangerous animals, is liable at all events for an injury they may do. In 2 American and English Encyclopsedia of Law (2d ed. p. 351) it is stated that “ the owner of wild animals, or animals ferae natmroe, is- as a general rule liable for all injuries done by them. It is not necessary to prove that the owner had knowledge of the vicious nature,of the animal causing the injury, as he is conclusively presumed to have such knowledge.” In Leonard v. Donoghue (87 App. Div. 104) the court says that the keeper or owner of animals, “ such as bears, wolves, panthers, lions, etc., animals which are by nature wild" and vicious,” is chargeable with knowledge of their vicious tendency and disposition.”

It is unnecessary to determine now how or whether as a general -rule negligence is involved in the subject under consideration, or whether liability accrues from the mere fact of keeping a wild animal. It is claimed by the defendant, however, that he was neither the owner nor the keeper of the bear, and that it was not in a place to which the public had access. That he was not the owner of the bear is manifest, but that it'was in the custody and under the control of the defendant’s servants is also clear. The defendant had the animal in his charge as a bailee. He had undertaken to transport it to Hew Haven, and after its arrival it was' kept upon his premises there until the freight charges were paid. It was. in his keeping. Knowledge of the vicious character of the animal is imputable to him as matter of law. Courts have gone so far as to hold that a ship is liable in admiralty to a person bitten by a' vicious dog chained in the cabin of the ship. (The Lord Derby, 17 Fed. Rep. 265.) There was evidence in the present case sufficient to show that people were, with knowledge of the defendant’s servants, in the habit of going upon defendant’s dock at Hew Haven, and into the freight liorfte in which the bear was placed, and on conflicting evidence the jury were authorized to find that the bears were in a place to which the public had access. '

But it is announced as the law of this State, in Muller v. McKesson (73 N. Y. 201), that “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 be entitled 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. (Coggswell v. Baldwin, 15 Vt. 404 ; Koney v. Ward, 36 How, P. R. 255 ; Wheeler v. Brant, 23 Barb. 324 ; Blackman v. Simmons, 3 Car. & P. 138 ; Brock v. Copeland, 1 Esp. 203 ; Bird v. Holbrook, 4 Bing. 628.) 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 ah owner of 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.-' The trial judge in alluding to the subject, stated in his'charge to' the jury that in the .event of their finding that the accident was due as. claimed: to the savage nature of the beast, they, should consider" whether or not .it was in consequence, as claimed by the defendant, “ of his coming .into such close proximity to the cage as to excite the bear,” and again referred to the plaintiff,.as standing hi such proximity to the cages as -to excite the ire .of the bear, and he said that if that were-done the plaintiff was chargeable with contributory negligence. The defendant requested the court to charge that “if the-plaintiff, was a bright active' boy, nine years- of ..age, who had been to school several years, and who assisted at home-and did errands for.his parents; and if lie-goes upon an enclosed pier, the property of defendant, where the business of unloading freight was.then going on-; and if the boy there approached cages containing bears; knowing that there were bears therein, and stood within eighteen inches of the'front of one of these cages, the front being a grated front, partly covered by a wooden screen, and is seized by one of said bears while standing there, and injured, he cannot recover for such injuries but is guilty of. contributory negligence.” The court refused to charge that request in the form in which it. was presented, and assigned as a reason that it left out of consideration Of the jury certain elements. to which their attention had already been called. What those elements were is not stated. •

We .think the defendant was entitled to this instruction and that - •it presented distinctly tlié question of. the infant plaintiff having voluntarily put himself in a place of danger. The- charge as made die! not refer to that separate consideration. It only referred to it in connection-with the. plaintiff exciting the bear. There was evidence in the case from which the jury might have found that the infant plaintiff with knowledge of the dangerous character of the beast voluntarily placed himself in a position in which he could be injured. He went to the dock for the purpose of seeing the bears. He entered the house in which the bears were deposited ; he walked into the passage between the cages; he turned his back to the cage in which the large bear was confined and raised his foot, so that it came within reach of the bear.. It is not to be presumed that a boy nine years of age does not know that a bear is a wild and vicious animal. It is very true that in the request the words “ contributory negligence ” are used, but that request is not vitiated by such use,' when we consider the manner in which the case was treated, namely, as one involving the issue of contributory negligence. Thedefendant was entitled to the instruction -asked for, irrespective of any act of the boy which may have excited the bear. Had the plaintiff voluntarily and unnecessarily placed himself within reach of the wild animal, lie knowing it to be wild, and was injured — to use the language of the court in Muller v. McKesson (supra)— “he would be adjudged to have brought the injury upon himself and ought not to be entitled to recover.”

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, P. J., and McLaughlin, J., concurred; Ingraham and Houghton, JJ., concurred in result.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.  