390 VICIOUS AND FEROCIOUS ANIMALS. 



on another's land, where it was killed by the defendant's mule, 

 also trespassing and known by the owner to be vicious;''* that 

 one employed as a dressmaker went at her employer's request 

 into the kitchen where she was bitten by a dog known by her 

 to be vicious but generally kept tied up : the risk was not in- 

 cidental to the service.''* 



Nor can the negligent acts of others be imputed to the 

 plaintiff. Where A. was killed by the running away of 

 horses frightened by vicious dogs, in a suit brought by his 

 widow against the owner of the dogs, it appearing that A. was 

 not driving at the time, it was held that evidence of the 

 driver's contributory negligence was inadmissible.^^ And 

 where school children, without their teacher's knowledge and 

 consent, during recess vexed a ram which attacked and in- 

 jured the teacher, this conduct cannot be imputed to the latter 

 in an act brought by her for her injuries.''® 



The question of the care used by the plaintiff is one for the 

 jury under all the circumstances.'''' 



In some cases it has been held that the plaintiff must aver 

 and prove that he exercised due care,^® but this is contrary to 

 the weight of decisions.'" 



The rule of comparative negligence exists, or formerly ex- 

 isted, in a few jurisdictions.*" 



'^ Hill V. Applegate, 40 Kan. 31. 



" Mansfield v. Baddeley, 34 L. T. N. S. 696. Cf. Fraser v. Hood, 15 

 Rettie (Sc. Ct. Sess.) 178, where one who was bitten while tying up, at 

 his master's order, a horse known to be vicious, was held not entitled to 

 recover. 



" Mann v. Weiand, 81* Pa. St. 243. 



" Kinmouth v. McDougall, 19 N. Y. Suppt. 771. 



" Linnehan v. Sampson, 126 Mass. 506; Meier v. Shrunk, 79 la. 17. 



"Williams v. Moray, 74 Ind. 25; Eberhart v. Reister 96 id. 478; Ray- 

 mond V. Hodgson, i6i Mass. 184. This was held to be the case where the 

 statute made the owner of a dog liable in damages "'except when the party 

 injured is doing an unlawful act:" Stuber v. Gannon, 98 la. 228. 



" Brooks V. Taylor, 65 Mich. 208; 27 Am. L. Reg., 636 n. and cases 

 cited; Hussey v. King, 83 Me. 568. 



"See Marble i^. Ross, 124 Mass. 44. The doctrine has been abolished 

 in Illinois: Cicero & P. St. R. Co. v. Meixner, 160 111. 320. 



