
    Charles Koney v. Warren Ward.
    The owner of a domestic animal, who knows its vicious propensity, is liable in damages for injuries committed by it in the indulgence of its evil disposition.
    The defendant’s horse was standing upon the sidewalk, hitched to a wagon, and the plaintiff, who was passing, although aware of the vicious propensity of the defendant’s horse, yet knowing he was usually muzzled, stepped from the sidewalk into the street, and endeavored to pass in front of the animal, without observing that he was not then muzzled, and was bitten by him: Held, that it was not such contributory negligence as would prevent a recovery for the injuries received.
    Appeal by the defendant from a judgment of the Third District Court.
    The action was brought to recover damages sustained by the plaintiff under the following circumstances: The defendant owned a horse which was accustomed to bite; he knew of the vicious propensity of the animal, and, to guard against it, usually kept him muzzled. On a day in October, 1866, the horse was standing on the sidewalk in Twelfth street, before defendant’s wagon, which was backed up to defendant’s lumber yard. The horse was not muzzled at the time; he had been fed a .short time before, and the muzzle had been r emoved to feed and water him; after which the horse was led, by the person who had him in charge, to the wagon, and hitched to it. The defendant’s servant was then about to go to the stable for the muzzle to put on the horse. At this time, the plaintiff, returning from his dinner, came along the sidewalk, and stepped from the walk into the street to pass the horse’s head; but as he was in the act of stepping back near the horse’s head, he was caught and bitten in the- shoulder by the animal. The plaintiff had known the horse for two or three years, and knew that it was accustomed to bite. The defendant’s servant saw plaintiff approaching, and called out to him by way of warning. Plaintiff did not hear the call until he was at the horse’s head, and, as he turned toward the person calling, he was bitten. Plaintiff knew that the defendant kept his horse muzzled, but did not notice that the muzzle was off until he was seized and bitten. The plaintiff says, when he was bitten, the defendant was engaged in loading the wagon. The plaintiff was laid up, and prevented from working, for two weeks, from this injury, and incurred medical expenses incident to his cure. The justice rendered a judgment in favor of the plaintiff for $50 damages, from which judgment the defendant appealed to the general term of this court.
    
      John E. Parsons, for appellant.
    
      W. C. Carpenter, for respondent.
   By the Court.—Van Vorst, J.

A person who keeps a domestic animal which has, to his knowledge, a vicious propensity, is hable in damages for the injuries committed by it in the indulgence of its evil disposition. The action rests upon the negligence of the owner in keeping an animal which is so likely to prove injurious and hurtful. The scienter is the gist of the action. In Coggswell v. Baldwim, (15 Vermont R. 404), it was decided that the owner of a “ cow accustomed to hook— the vicious propensity being known to the owner—is liable for damages done by her, although it be done in the highway, against the land of the owner, and while going to her usual watering place.” In that case, the owner of the cow, knowing her propensities, had caused buttons to be put on her horns as a preventive. But the cow hooked the plaintiff’s horse, in the road, so that of the wound made he died, and the plaintiff had a verdict. In the case before this court, it appears that the defendant knew that his horse had the habit of biting, and to guard against it he kept him muzzled. At the time the injury was sustained by the plaintiff, the horse was standing on the sidewalk unmuzzled.

This was negligence. The horse should not have been allowed to stand in that condition in the public street any length of time. He should have been immediately muzzled after being fed and watered, and before he was hitched to the wagon. But it is claimed that the plaintiff himself was negligent, and, therefore, should not be allowed to recover. It is an unyielding rule that a plaintiff, prosecuting for the negligence of another, should himself be without any misconduct or fault, and should have used ordinary care. An action cannot be maintained when an injury has resulted from the negligence of both parties. It is the duty of every person to take care of his own safety (Fox v. Glastenbury, 29 Conn. 204), and in the case of Coggswell v. Baldwin, above cited, it was held, that if the injury to plaintiff’s horse was occasioned by his own negligence, the plaintiff would not be entitled to recover. But I see nothing in this case which should charge the plaintiff with any want of ordinary care, or implicate him in any negligence. Plaintiff was where he had a right to be—passing on the sidewalk. It is true he knew the vicious propensity of the horse, but he also knew that defendant kept him muzzled. He came suddenly on the animal, and instantly turned from the walk to pass him. He had a right to presume that the horse standing there was muzzled. In fact, he did not see the horse until he came up to him, and was bitten in the act of passing.

He was in no attitude to the animal from which any negligence could be imputed to him. He did not court the danger, or rashly expose himself to injury. In Smith v. Pelah (2 Strange, 1264), the Chief Justice ruled, “ that if a dog once bites a man, and the owner, having notice thereof, keeps the dog, and lets him go about, or lie at his door, an action will lie against him at the suit of a person who is bit, though it happened by such person treading on the dog’s toe.”

Judgment affirmed.  