"The formula used in text-books and in forms given for pleadings in such cases 'accustomed to bite' does not mean that the keeper of a ferocious dog is exempt from all duty of restraint until the dog has effectually mangled or killed at least one person. But as he is held to be a man of common vigilance and care, if he had good reason to believe from his knowledge of the ferocious nature and propensity of the dog that there was ground to apprehend that he would under some circumstances bite a person, then the duty of restraint attached, and to omit it was negligence."

In an action against the owner of a dog for biting a man, proof that the owner knew that he had a propensity to bite animals is not enough;2 nor that he might have known the dog's vicious disposition with reasonable care;3 nor that the dog had a propensity to chase trespassing cattle from his master's grounds. But it is enough that he had destroyed animals of another species, or had attacked a man. Proof that the defendant had warned a person to beware of the dog, lest he should be bitten, is evidence to go to a jury of the scienter. Where the owner knows his dog has bitten people, it is no defense that he was generally inoffensive. If a dog is kept for protection

fairly raised by the evidence, and were properly submitted to the jury. But it is, in substance, insisted that even though the plaintiff was not intentionally a wrong-doer by being upon the defendants premises, and that they were aware that their dogs had such vicious propensity, they, nevertheless, are not liable for the injury inflicted, for the reason that it was not shown that either of the dogs had ever before that time bitten any one; in other words, that however much the life or limb of innocent persons might, to the knowledge of the defendants, have been exposed to danger by the vicious propensity of their dogs, they are not liable for this, being the first injury inflicted, notwithstanding they had just reason to believe that such injury would, under

like circumstances, occur. The law has gone far to shield those who have kept dogs for the protection of their property from the consequences of injuries to persons inflicted by them, but not so far as to protect the keepers of such as are known to them to be ferocious to a degree that endangers the safety of such as are unwarned, and innocently upon their premises, from the consequences of wounds inflicted by them.'

Godeau v. Blood, 52 Vt. 251; 36 Am. Rep. 751.

Keightlinger v. Egan, 65 Ill. 235. Laherty v. Hogan, 13 Daly, 533. Spray v. Ammerman, 66 Ill. 309. Pickering v. Orange, 2 Ill. 338. Cockerham v. Nixon, 11 Ired. 269. 7 Judge v. Cox, 1 Stark. 285. Buckley v. Leonard, 4 Denio, 500.

to premises, the purpose for which he is kept charges his master with knowledge that he is of fierce and dangerous character. In an English case it is said that in an action for knowingly keeping a fierce and mischievous dog, which had bitten or wounded the plaintiff, it is necessary to prove that he has injured the plaintiff, and is used to injuring people, and a mere habit of bounding upon and seizing persons, not so as to hurt or injure them, though causing some annoyance and trivial accidental damage to clothes, would not sustain the action; and the dog may be brought into court, and shown to the jury to assist them in judging of his temper and disposition.2 Knowledge of an agent or servant of the vicious quality of an animal is the knowledge of the owner, and binds him,3 provided the agent is one whose duty, in the course of his employment, is to receive such knowledge and communicate it to his principal.*

ILLUSTRATIONS.-A had large watch-dogs which he kept chained during the day, and loose at night. B, while passing along the street at night, was attacked and bitten by them. Held, that further proof of scienter was not necessary: Montgomery v. Koester, 35 La. Ann. 1091; 48 Am. Rep. 253. Defendant was accustomed personally to tie his watch-dogs by day, and loose them at night. Having overslept one morning, and neglected to tie the dogs, they bit the plaintiff, who came lawfully on the premises by the invitation of defendant's daughter. Held, that defendant's knowledge of the dangerous character of the dogs might be inferred from his habit of tying them by day, but not from his wife's asking the daughter why she had not tied them: Goode v. Martin, 57 Md. 606; 40 Am. Rep. 448. Plaintiff, whilst walking along the public street, wearing a red handkerchief, was attacked and injured by a bull, which was being driven along the street. The defendant stated after the accident that the red handkerchief was the cause of the injury, for he knew the bull would run at anything red. He also

1 Brice v. Bauer, 108 N. Y. 428; 2 Am. St. Rep. 454.

2 Line v. Taylor, 3 Fost. & F. 731. 3 Baldwin v. Casella, L. R. 7 Ex. 325; Gladman v. Johnson, 36 L. J. Com. P. 153; Miller v. Kimbray, 16 L. T., N. S., 360; Applebee v. Percy,

L. R. 9 Com. P. 647; Corliss v. Smith, 53 Vt. 532. And see Jeffrey v. Bigelow, 13 Wend. 518; 28 Am. Dec. 476.

Stiles v. Cardiff Steam Nav. Co., 33 L. J. Q. B. 310; Twigg v. Ryland 62 Md. 380; 50 Am. Rep. 228.

stated on another occasion that he knew that a bull would run at anything red. Held, that this was evidence for the jury in support of the averment of the scienter: Hudson v. Roberts, 6 Ex. 679; 20 L. J. Ex. 299. Defendant's dog was under his wagon in the shed of an inn, where the defendant was a guest, and bit the plaintiff, the innkeeper, while he was unhitching the horses to move them. Held, that whether the dog was or was not, quoad the master who had tried to send him home, an involuntary trespasser, the defendant was not liable unless he knew that the dog was of vicious character, and that such knowledge could not be inferred from the subsequent conduct of the dog: Fairchild v. Bentley, 30 Barb. 147. To establish the scienter, it was proved that the wife of the defendant (who was a milkman) occasionally attended to his business, which was carried on upon premises where he kept the dog, and that a person had gone there and made a formal complaint to the wife, for the purpose of its being communicated to her husband, of the dog having bitten such person's nephew. Held, that there was evidence of the husband's knowledge of the dog's propensity to bite: Gladman v. Johnson, 36 L. J. Com. P. 153; 15 Week. Rep. 313; 15 L. T., N. S., 476. To fix a defendant with knowledge of the ferocious nature of a dog of which he was the owner, and which had bitten the plaintiff, two persons who had upon previous occasions (one of them twice) been attacked by it were called to prove that they had gone to the defendant's public house and made complaint to two persons who were behind the bar serving customers, and that one of them had also complained to the barmaid. There was, however, no evidence that these complaints were communicated to the defendant; nor was it shown that either of the two men spoken to had the general management of the defendant's business or had the care of the dog. Held, that there was evidence of scienter to go to the jury: Applebee v. Percy, L. R. 9 Com. P. 647; 22 Week. Rep.

704.

§ 1386. Liability Enlarged by Statute.-In some states statutes have been passed' enlarging the common-law liability of the owners of dogs, and rendering it no longer necessary to prove that the owner knew of the dangerous habits of his dog; also, giving double damages for such

1 Massachusetts: Rev. Stats., c. 58, sec. 13; New Hampshire statute; Pennsylvania statute; Michigan statute; Ohio statute; New York: 1 Rev. Stats., p. 656, sec. 9; usually in actions for the killing of sheep by dogs.

2 See Pressey v. Wirth, 3 Allen, 191; Orne v. Roberts, 51 N. H. 110; Woolf v. Chalker, 31 Conn. 121; 81 Am. Dec. 175; Fish v. Skut, 21 Barb. 333; Osincup v. Nichols, 49 Barb. 145; Kerr v. O'Connor, 63 Pa. St. 341; Swift v. Ap

injuries. The New York statute making the owner of a dog which shall "kill" or "wound" a sheep liable, without notice that he was mischievous, has no application where the sheep were only chased and worried. In that case there must be proof of the scienter to render the owner liable. The remedy given by the Massachusetts statute to "any person injured" by a dog against its owner or keeper includes injuries to property. The owner or keeper of a dog is liable under the statute of Wisconsin for injuries to the clothes of one bitten, as well as for injuries to his person, although knowledge of the mischiev ous disposition of the dog is not proved to have been had by the owner. The language of the statute, being general, is not to be limited to injuries to the party only. Evidence of the owner's knowledge of the dog's character and previous attacks is competent in aggravation of damages, even under a statute which does not make the liability dependent upon such knowledge. The New Hampshire act entitled, "An act in relation to damages occasioned by dogs," is unconstitutional so far as it undertakes to charge the owner with the amount of damage done by his dog, as fixed by the selectmen of the town, without an opportunity to be heard, on the ground, among others, that it is in violation of the right of trial by jury."

§ 1387. Contributory Negligence-Children.- Contributory negligence in such cases, as in all other actions for personal injuries, is a bar.

plebone, 23 Mich. 252; Gries v. Zeck, 24 Ohio St. 329. Such statutes are constitutional: East Kingston v. Towle, 48 N. H. 57; 97 Am. Dec. 575.

Mitchell v. Clapp, 12 Cush. 278; Smith v. Causey, 22 Ala. 568. Under the Michigan statute, double damages are recoverable for the killing of sheep by a dog, even if the owner is ignorant of his vicious nature: Trompen v. Verhage, 54 Mich. 304.

2 Auchmuty v. Ham, 1 Denio, 495. 3 Brewer v. Crosby, 11 Gray, 29.

But to show this, it must

Schaller v. Connors, 57 Wis. 321. Swift v. Applebone, 23 Mich. 252. 6 East Kingston v. Towle, 48 N. H. 57; 97 Am. Dec. 575.

Marble v. Ross, 124 Mass. 44; Earhart v. Youngblood, 27 Pa. St. 331; Fanning v. Hagadom, 9 Week. Dig. N. Y. 36; Williams v. Moray, 74 Ind. 25; 39 Am. Rep. 76; Eberhart v. Reister, 96 Ind. 478, holding that the complaint must allege that the plaintiff was not negligent. An action cannot be maintained for damages

be established that the person injured did some act from which it may be inferred that he brought the injury upon himself. If a person should thrust his arm into a bear's mouth and be bitten, it could not be said that the injury was caused by keeping the bear; and so if a person, knowing the vicious propensities of a dog, should wantonly or willfully do an act to induce the dog to bite, or should unnecessarily or voluntarily put himself in the way of the dog, knowing the probable consequences, the same principles would apply. If a person provoke a dog to bite him, he cannot recover.2 But ordinary familiarities with a dog loose are not contributory negligence within this rule. "They are not acts from which any bad consequences would naturally follow; certainly not from a peaceful dog, which it may be presumed every dog at large is." In an action for an injury by a vicious bull, the plaintiff recovered, although it appeared that the bull was attracted by a cow in a particular state, which the plaintiff was driving past the field in which the bull was, and that the plaintiff first struck the bull on the head to drive him away from the cow. The plaintiff may recover, notwithstanding he had on a previous day been warned against going near the dog, if the jury think that the accident was not occasioned by the plaintiff's own carelessness and want of caution. The owner is not excused in such case, although the person committed a technical trespass in entering the premises, and although he has kept the dog within an inclosure,

caused by the escape of a bull from his pasture, if the fence was reasonably secure, especially when the bull's escape was chiefly or wholly owing to the fault of the owner of the property injured, or his agent: Weide v. Thiel, 9 Ill. App. 223.

Lynch v. McNally, 73 N. Y. 347; Muller v. McKesson, 73 N. Y. 195; 29 Am. Rep. 123; Sheehan v.. Cornwall, 29 Iowa, 99. Accidentally step

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