and placed, as a notice, upon the outside of his premises, "Beware of the dog." But otherwise, if the person's attention was drawn to the notice, and he was cautioned not to cross the fence, yet voluntarily exposed himself to the danger. If the act of a dog is the sole and proximate cause of the shying of a horse, and such shying is not the result of any vicious habit of the horse, the fact that it contributed to plaintiff's injury does not prevent him from maintaining an action against the owner of the dog.2

As to children, the law requires no higher degree of care from a child than may reasonably be expected in view of its age and situation. A child is not bound to act with the care and judgment of a grown person. Where a child is in the custody of its parent at the time, the latter must use ordinary care and watchfulness. To allow

1 Sawyer v. Jackson, 5 N. Y. Leg. Obs. 380. Compare Wheeler v. Brant, 23 Barb. 324; Logue v. Link, 4 E. D. Smith, 63.

? Denison v. Lincoln, 131 Mass. 236. 3 Munn v. Reed, 4 Allen, 431; Lynch. Nurdin, 1 Q. B. 29. In Plumley v. Birge, 124 Mass. 57, 26 Am. Rep. 615, the plaintiff, a boy of thirteen, had been bitten by a dog which he met crossing a bridge and attempted to turn him back by striking at him with a stick. In affirming a judgment for damages, the court said: "The second ruling was, that if the plaintiff was old enough to know that striking the dog would be likely to incite the dog to bite, and did strike the dog, and did thereby incite the dog to bite him, he may, nevertheless, recover, if the jury think he was in the exercise of such care as would be due care in a boy of his years." We are of opinion that there is no error in this ruling. It was necessary that the plaintiff, though a boy, should prove that he was in the exercise of due care. But due care on his part did not require the judgment and thoughtfulness which would be expected of an adult under the same circumstances. It is that degree of care

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which could reasonably be expected from a boy of his age and capacity: Munn v. Reid, 4 Allen, 431; Carter v. Towne, 98 Mass. 567; 96 Am. Dec. 682; Lynch v. Smith, 104 Mass. 52; 6 Am. Rep. 188; Dowd v. Chicopee, 116 Mass. 93. If the court had ruled that if the plaintiff was old enough to know that striking the dog would be likely to incite him to bite, he could not recover, it would have been erroneous. This is not the true test. It entirely disregards the thoughtlessness and heedlessness natural to boyhood. The plaintiff may have been old enough to know, if he stopped to reflect, that striking a dog would be likely to provoke him to bite, and yet in striking him he may have been acting as a boy of his age would ordinarily act under the same circumstances. The age of the plaintiff was an important fact for the consideration of the jury; but the court correctly held that the true rule was, that he was entitled to recover if he was in the exercise of that degree of care which, under like circumstances, would reasonably be expected of a boy of his years and capacity."

Munn v. Reid, 4 Allen, 431; Logue v. Link, 4 E. D. Smith, 63.

a child to play with a strange dog is not per se negligence in a parent.1

ILLUSTRATIONS. A permitted his mare to feed in the same field with B's bull. The bull gored the mare. Held, that A had no right of action against B therefor: Carpenter v. Latta, 29 Kan. 591. A woman offers a dog, lying on the sidewalk in front of a store, a piece of candy. The dog springs at her and bites her. Held, not contributory negligence in the woman: Lynch v. McNally, 73 N. Y. 347. A man left a dog, which he knew had bitten people, alone in his sleigh on a village street. A child of seven came along and "meddled" with the whip, whereupon the dog bit him. Held, that the owner was liable: Meibus v. Dodge, 38 Wis. 300; 20 Am. Rep. 6. A horse was accustomed to bite, and the owner kept him muzzled. While the horse was temporarily unmuzzled, standing on the sidewalk in front of the owner's premises, the plaintiff, in passing around the horse, was bitten upon the shoulder by him. Held, that the owner was liable in damages, although the plaintiff also knew that the horse was vicious, but did not discover when passing around him that his muzzle was off: Koney v. Ward, 36 How. Pr. 255. A woman, while standing on a bridge, was thrown over the railing by a passing bull. Held, that she was not guilty of gross negligence in not going off the bridge when she first saw the bull coming: Barnum v. Terpenning, Mich., 1889.

§ 1388. Trespassers-Watch-dogs.-That the plaintiff was trespassing on the land of the owner at the time will not defeat the action. A person has a right to keep a watch-dog for the defense of his house, his garden, and his fields, and he may use him for that purpose in the nighttime; but this will not permit a man to have a ferocious dog running loose in his grounds in the daytime, and if he injures a trespasser, the owner will be liable.*

1 Munn v. Reid, 4 Allen, 431.

2 Marble v. Ross, 124 Mass. 47; Loomis v. Terry, 17 Wend. 496; 31 Am. Dec. 306; Kelly v. Tilton, 3 Keyes, 263; Rider v. White, 65 N. Y. 54; 22 Am. Rep. 600; Glidden v. Moore, 14 Neb. 84; 45 Am. Rep. 98.

3 Loomis v. Terry, 17 Wend. 496; 31 Am. Dec. 306. No action lies for an injury arising from the defendant letting loose a dog in his own premises for their protection at night: Brock v. Copeland, 1 Esp. 203.

Loomis v. Terry, 17 Wend. 496; 31 Am. Dec. 306; Kelly v. Tilton, 3 Keyes, 263; Woolf v. Chalker, 31 Conn. 121; 81 Am. Dec. 175; Sherfey v. Bartley, 4 Sneed, 58; 67 Am. Dec. 597. Even if the owner give notice of the dog being in the grounds. It is no answer to such an action that a printed notice was put up, if it appears that the plaintiff could not read: Sarch v. Blackburn, Moody & M. 505; 4 Car. & P. 297.

ILLUSTRATIONS.-The owner of uninclosed pasture-land, across which there was a neighborhood road not laid out as a public highway, but which had been used ever since the country was settled, fastened a bull, which he knew to be vicious, so that a person passing along the road was gored thereby. Held, that he was liable, though he had warned the person not to pass: Glidden v. Moore, 14 Neb. 84; 45 Am. Rep. 98.

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§ 1389. Negligence in Driving, Securing, or Using Animals. Every person having charge of an animal is bound to use due care under the circumstances which surround him,' and if in securing or driving or otherwise using or tending such animal he does not use such care, and another is injured, he is liable in damages. Where there is no want of care, and a person's horses break away and do damage, he is not liable.3 Driving animals along a highway is not such an unusual use of them as to require the driver to exercise extraordinary care. But the driver of a cow, known to him to be vicious, not using due care, is liable to any person injured by her, who is in the exercise of due care. In an action for personal injuries occasioned

1 Dolfinger v. Fishback, 12 Bush, 474; Meredith v. Reed, 26 Ind. 334; Frazer v. Kimler, 2 Hun, 514; Sullivan v. Scripture, 3 Allen, 565, the court saying: "And what is reasonable or due care depends in every case on the subject-matter to which the care is to be applied, and the circumstances attending that subject-matter at the time when care is required. . . The defendant's horse and wagon, at the time of the injury, were near to a military encampment, and where there was a throng of people. If so, the defendant was bound to use greater care of their movements than the law would have required of him if they had been in a less frequented place.'

Hewes v. McNamara, 106 Mass. 281; Ficken v. Jones, 28 Cal. 618 (negli gently driving cattle through streets); Dickson v. McCoy, 39 N. Y. 400; Goodman v. Gay, 15 Pa. St. 188; 53 Am. Dec. 589; Barnes v. Chapin, 4 Allen, 444; 81 Am. Dec. 710; Bowyer v. Buriew, 3 Thomp. & C. 362; İllidge

v. Goodwin, 5 Car. & P. 190; Lynch v. Nurdin, 1 Q. B. 29; Bennett v. Ford, 47 Ind. 264; Hummell v. Wester, 1 Bright. N. P. 133; Coggswell v. Baldwin, 15 Vt. 404; 11 Am. Dec. 686; Shawhan v. Clarke, 24 La. Ann. 390. Where defendants knew that the bull was wild, and had been told it was safer to lead him by a ring in his nose, but tied him, head and foot, it was for the jury to determine whether defendants were guilty of negligence in driving him on the highway, though the bull had never attacked any one before: Barnum v. Terpenning, Mich., 1889.

3 Brown v. Collins, 53 N. H. 442; 16 Am. Rep. 372. The owner of a runaway horse is not responsible for the injury resulting from a collision with another horse and carriage, no negligence on the part of the owner of the runaway horse being shown: Shawhan v. Clarke, 24 La. Ann. 390.

Reeves v. R. R. Co., 30 Pa. St. 454; 72 Am. Dec. 713.

> Hewes v. McNamara, 106 Mass. 281.

by the defendant's bull while being led through a street of a city, the jury may infer that the defendant knew what is common knowledge in regard to the propensities of such an animal; and testimony that the defendant, after the accident, said that it was careless in his servant to lead the bull in the manner in which he was led may be considered by the jury as an admission that the bull needed to be kept under control, and that the care taken in driving him through the street was insufficient.' A person allowing a horse to run loose in the streets of a city is guilty of negligence, and liable for the damage he does.2 But where a horse strays on a highway, and, without apparent reason, kicks a child, no action will lie against the owner of the horse, unless he knew that the horse was likely to commit such an act.3

ILLUSTRATIONS.-Defendant was intoxicated, fell asleep in his sleigh, and his horses ran away, and ran against the plaintiff's horse. Held, that he was liable: Waldron v. Hopper, 1 N. J. L. 339. Defendant allows his mules to stand alone and untied near by a railroad track, so that the whistle of a locomotive frightens them, and they run away and injure the plaintiff's horses. Held, that he is liable: Drake v. Mount, 33 N. J. L. 441. Plaintiff sustained injuries by the kick of a horse while he was, by defendant's invitation, attending a sale in defendant's yard, which was used for the sale of horses by auction. Plaintiff was walking up the yard behind a row of spectators, who were watching a horse then on sale. The horse was being led with a halter, by a servant of defendant's, down a lane formed by the line of spectators on one side, and a blank wall on the other, there being no barrier between the spectators and the horse. When the horse was about ten yards from plaintiff (the crowd of spectators then being between them), another servant of the defendant, standing on the wall side of the lane, suddenly whipped the horse, to make him trot and show his paces, the consequence being that the horse swerved into and through the crowd, who made way for him, and lashing out, kicked plaintiff. No evidence was given as to the nature of the blow, of the character of the horse, or of

Linnehan v. Sampson, 126 Mass. 506; 30 Am. Rep. 692.

Goodman v. Gay, 15 Pa. St. 188; 53 Am. Dec. 589; Rossell v. Cottom, 31 Pa. St. 526.

$ Cox v. Burbridge, 13 Com. B., N. S., 430; 9 Jur., N. S., 970; 32 L. J. Com. P. 89; 11 Week. Rep. 435.

But it was ruled that trespass and not case was the proper form of action.

the manner in which he was led, nor was any evidence given to show that it was usual, in the case of horse sales of this description, to erect a barrier between the horses and the spectators. Held, that there was evidence of negligence on the part of the defendant's servants which should have been submitted to the jury: Abbott v. Freeman, 34 L. T., N. S., 544. A horse and wagon were left standing in the street, the horse being unhitched. The servant of a telegraph company, engaged in repairing the wires, allowed a broken wire to strike the horse, thereby frightening him, and causing him to run, resulting in the death of the horse. In a suit against the company for the value of the horse, held, that the negligence of the driver in leaving the horse was such as to debar the owner from recovering: Western Union Tel. Co. v. Quinn, 56 Ill. 319.

§ 1390. Owner Transferring Care of Animal-Bound to Give Notice of Vicious Propensities. One letting an animal to another for hire, or letting a biting or kicking horse to another for hire, or leaving it with a blacksmith to be shod, or with a hostler to be groomed, is bound to inform the party receiving the horse of his vicious habits; otherwise he will be liable for damages which may arise in consequence of these habits. But the habits must be habits directly dangerous, as kicking and biting in horses, hooking in horned animals, and biting in dogs.

ILLUSTRATIONS. - Defendant owned a mare which had a habit of suddenly "pulling" back upon her halter when excited or restless. This habit was known to defendant. He left the mare at a hotel, kept by plaintiff's employer, to be cared for, giving plaintiff no notice of the habit. While plaintiff was hitching the mare in the stable, and in doing so had put her halter-rope through a ring, she pulled suddenly back, drawing the rope through the ring. Plaintiff's finger was caught between the rope and ring and torn to pieces. Held, that defendant was not bound to notify plaintiff of the habit of the mare to pull: Keshan v. Gates, 2 Thomp. & C. 288.

§ 1391. Liability for Trespasses of Animals. — The mere trespasses of animals, without any other injury, upon the uninclosed lands of another, give no right of 2 Thompson on Negligence, p. 217, " Id.; Keshan v. Gates, 2 Thomp. sec. 30; Campbell v. Page, 67 Barb. 113. & C. 288.

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