The issues which arise in a case of this kind have been stated in two cases of this court. In Maung Gyi v. Po To [same vol., p. 565] it was observed that the issue generally would no doubt be the usual issue as to the existence of negligence on the part of the owner of the animal doing the damage. In Maung Saw v. Maung Kyaw [same vol., p. 567], points which arise in a case very similar to the present were indicated. There has been some argument in this court on the application of the doctrine of scienter. It is said that “any one who keeps a wild animal, as a tiger or bear, which escapes and does damage, is liable without any proof of notice of the animal’s ferocity; but where the damage is done by a domestic animal, the plaintiff must show that the defendant knew the animal was accustomed to do mischief.” Collett on Torts, 7th edition, p. 100. Again, “a person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril. If it escapes and does mischief, he is liable without proof of negligence, neither is proof required that he knew the animal to be mischievous, if it is of a notoriously fierce or mischievous species.” Pollock on Torts, 3d edition, p. 442. In Smith’s Leading Cases in the notes on Fletcher v. Rylands, 10th edition, vol. i, p. 827, it is said: “The law of England recognizes two distinct classes of animals. The first class consists of such animals as sheep, horses, oxen, and dogs, which the law assumes not to be of a dangerous nature, and a person who keeps an animal of this class is not liable for any damage it may do, when not trespassing, unless he knew that it was in fact dangerous. The other class consists of animals which have not been shown by experience to be harmless by nature; and one who keeps animals of this class must prevent them from doing injury under any circumstances, unless the person to whom it is done brings it on himself.” In the English case on which these remarks are based (Filburn v. People’s Palace Company), it was held that an elephant “did not belong to a class which, according to the experience of mankind, is not dangerous to man, and therefore the owner kept such an animal at his own risk, and his liability for damage done by it was not affected by his ignorance of its dangerous character.” Mew’s Digest of English Case Law, p. 199.
I understand the remarks of my learned predecessor in Maung Gyi v. Po To above cited to go no further than to suggest that a man should be liable for injury caused by his animal, whether tame or wild, if it is proved that the injury was due to the owner’s negligence. In that view, it would not be necessary to draw a distinction between wild and domestic animals. The point for decision would be whether the owner was guilty of negligence or whether he used such care as in the circumstances of the case was reasonable and ordinarily sufficient. The amount of care required would vary according to the class of the animal and according to its known disposition. It could not, I think, be laid down in this country that a man is liable for any damage done by his elephant without any proof of negligence or that he knew it to be of a vicious disposition. In view of the manner in, and extent to, which elephants are employed in this country such a proposition would be manifestly unjust.
In the present case, therefore, I think it was for the plaintiff to prove that the damage done to his elephant was caused, or rendered possible, by the defendant’s negligence. In considering the question of negligence, the defendant’s knowledge or want of knowledge that her elephant was of a vicious disposition would be an important point. In a suit of this kind, where an animal like an elephant is concerned, I think the burden of proving negligence is in the first place on the plaintiff who avers it. It might be otherwise if injury by a tiger or bear were concerned.
I agree with the Lower Courts in thinking that it is not proved that the defendant knew that the elephant “Kya Gyi” was of a vicious disposition. It was therefore not incumbent on her to take more than ordinary precautions with him. It does not seem to be shown that ordinary precautions were neglected. It is alleged that “Kya Gyi” twice gored the deceased elephant “Do,” and the mahout called by the plaintiff declares that he had neither bell nor fetters. On the other hand, as pointed out in the judgment of the Court of First Instance, the plaintiff himself admitted that “Kya Gyi” had a bell and fetters on the second occasion. It is admitted that all the other elephants of the defendant had bells and fetters. There is direct evidence, at least as good as that for the plaintiff, that “Kya Gyi” was properly provided with them. In my opinion it has not been proved that there was any negligence on the part of the defendant, and any prima facie case made out by the plaintiff has been rebutted. I therefore hold that the Lower Courts have rightly decided that the defendants are not liable; and I dismiss this appeal with costs.[[266]]
BOSTOCK-FERARI AMUSEMENT COMPANY v. BROCKSMITH
Appellate Court, Indiana, February 14, 1895.
Reported in 34 Indiana Appellate Court Reports, 566.
Action by Otto Brocksmith against Bostock-Ferari Amusement Company. From a judgment for plaintiff, defendant appeals.
Comstock, C. J. The complaint alleges that the plaintiff, while driving in his buggy, was injured in consequence of his horse taking fright from the sight of a bear walking along a public street in the city of Vincennes. The action was begun in the Circuit Court of Knox County, and, upon change of venue, tried in the Circuit Court of Sullivan County. The court rendered judgment upon the verdict of the jury in favor of appellee for $750. The complaint was in three paragraphs. The first was dismissed, and the cause was tried upon the amended second and third paragraphs, to which general denial was filed.
The errors relied upon are the action of the court in overruling demurrers to said second and third paragraphs, respectively, of the complaint, and overruling appellant’s motion for a new trial. Some of the reasons set out in the motion for a new trial are that the verdict was contrary to the law, and was not sustained by sufficient evidence.
The question of the sufficiency of the second paragraph of the complaint is not entirely free from doubt, but we conclude that each of said paragraphs is sufficient to withstand a demurrer.
It is sought to maintain an action for damages resulting from the fright of a horse at the sight of a bear, which his keeper and owner was leading along a public street, for the purpose of transporting him from a railroad train, by which he had been carried to Vincennes, to the point in Vincennes at which the bear was to be an exhibit as a part of appellant’s show. It is not claimed, either by allegation or proof, that the show was in itself unlawful; and there is no pretence that the transporting of the bear from one place to another for the purpose of exhibition was unlawful, or in itself negligence. The case is therefore one of the fright of a horse merely at the appearance of the bear while he was being led along the street, was making no noise or other demonstration, and was in the control of his keeper. It appears without contradiction from the evidence that when the horse took fright the bear was doing nothing except going with his keeper. He was muzzled. He had a ring in his nose to which a chain was attached. Said chain was strong enough to hold and control him. He had around his neck a collar about two inches wide and one-half inch thick, to which also was attached a chain. The keeper had both chains in his hand when the accident occurred. The chain connected with the ring in his nose was small. The one connected with his collar was large. It was for the purpose of chaining him at night when he was alone. The chains were strong enough to control the bear. The animal was characterized by the witnesses who knew him as “gentle,” “kind,” “docile.” His keeper testified that he had never known him to be mean or to growl. He testified also that he never knew of a bear scaring a horse; that shortly before the accident the keeper met two ladies in a buggy, and their horse did not scare. He was described as of pretty good size and brown. One witness said he was a “large, ugly-looking, brown bear.”