
    James Corcoran, by John Corcoran, his guardian ad litem, Respondent, v. Thomas Kelly, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Animals — Liability of owner for acts of animal — Necessity of notice of dangerous propensity.
    Negligence: Acts or omissions constituting negligence — Personal conduct in general — Leaving horse loose or unattended: Proximate cause of injury — Cause of injury in general — Bite of a horse.
    In an action to recover damages from being bitten by a horse, the fact that the horse at the time was standing unhitched in the street near the curb, eating oats from the ground, does not dispense with proof of knowledge on the part of the owner of the vicious propensity of the horse.
    In such a case, leaving the horse unhitched is not the proximate cause of the injury; but the proximate cause thereof is the vicious propensity of the horse.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, third district, borough of Manhattan.
    
      William A. Jones, Jr., for appellant.
    Samuel Deutsch, for respondent.
   Ford, J.

The plaintiff, a child of eleven years, was passing a two-horse team and wagon standing near the curb. The horses were unhitched. One of them bit the plaintiff as he was passing by. It was about one o’clock and the horses were eating oats from the ground. Plaintiff recovered judgment and the defendant appeals.

The theory of the trial justice seems to have been that proof of scienter was unnecessary because the horse was unhitched and that fact brought the case within the rule that one who negligently permits an animal to be at large is held liable for damages caused by it. I think this view is erroneous. There is a wide difference between a horse permitted to roam at large and a work horse hitched to a wagon standing on the street eating oats. Negligence cannot be predicated on the mere leaving of a horse unattended for the time being in the street while it partakes of its midday meal. In any event the so leaving of the horse was not the proximate cause of the accident. The vicious propensity of the horse was. But to recover for the bite or kick of a vicious animal, knowledge of its vicious nature must be proved. No such proof was offered unless we take as such proof the fact that after the occurrence a muzzle was placed upon the horse. But that might indicate extra precaution instead of previous knowledge of the biting propensity of the animal. It seems to me clearly to be a case where a scienter must be shown.

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

Hendrick, J., concurs.

Giegerich, J.

(concurring). I concur in the conclusion reached by Hr. Justice Ford that the defendant was not negligent in permitting the horse to be unattended in the street under the circumstances stated in .his opinion.

The question thus arises whether or not there was any evidence to sustain a finding of the jury that the defendant had knowledge of the vicious character of the horse. The only testimony upon this point was to the effect that almost immediately after the defendant’s horse bit the plaintiff one of the defendant’s servants brought a muzzle out of the defendant’s store, in front of which the accident occurred, and placed it upon the horse.

The significance of this circumstance as indicating-previous knowledge of the biting propensity of the animal would depend upon other facts which are not in evidence in this record; such, for example, as whether this muzzle was kept for this particular horse and had been used upon it before, and whether it is a fact that muzzles are sometimes placed upon horses of good habits merely as an extra precaution, as is suggested in the main opinion, or whether they are used only on horses that bite. Further light upon these points can be had upon a new trial.

For the reasons stated, I concur with the conclusion reached by Mr. Justice Ford, and vote for a reversal.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  