126 



FOREST AND STREAM. 



[March 10, 1887- 



THE RESPONSIBILITY OF DOG OWNERS. 



Chahlkstown, N. H.— Editor Forest and Stream: A large dog, 

 wearing a spiked collar with needle points, has attacked one or 

 two smaller dogs in town, and seriously injured one of them with 

 the spikes. Is it legal for dogs to wear such collars, and is there 

 any redress for the injury?— S. 

 \ DOG is now recognized as property, and the liability 

 of the owner of an animal for injuries caused by it 

 is determined by the same principles, whether the injuries 

 are inflicted upon the property or person of another. 



Every one is supposed to know the fierce and dangerous 

 disposition of wild animals. A person therefore keeps 

 them at his peril, and is responsible for whatever damage 

 they may do, however tame they may have become, and 

 however unexpected the act which eaitsed the injury. 



With domestic animals it is different. The owner of 

 such animals is liable for injuries done by them, only after 

 he has notice that they have some vicious habit or pro- 

 pensity. If it be made to appear that such an animal is 

 vicious and accustomed to do harm and that the owner 

 has been notified of the fact, a duty is imposed upon him 

 to ke^p the animal secure, and he is responsible for the 

 mischief done in consequence of his failure to observe 

 that duty. One who keeps a dog accustomed to bite men 

 or sheep is liable for injuries caused by such acts, if he 

 have notice of the dog's vice. Notice of a single act of 

 mischief is sufficient evidence of his knowledge of the 

 animal's mischievous disposition, but the person injured 

 must prove that the owner of the animal had such knowl- 

 edge before he can hold him liable. 



A few illustrations will show how courts have applied 

 this rule. 



While a mule and a horse were feeding together in a 

 shed, the mule kicked and seriously injured the horse. 

 In an action to recover damages the owner of the horse 

 offered to prove that the hostler employed to feed the 

 mule knew the animal's bad character. This was not 

 allow r ed, the court holding that the owner himself must 

 be shown to have such knowledge, and that it would be 

 unreasonable to charge him with whatever knowledge of 

 the mule's viciousness any person might have who was 

 charged with the least duty in respect to it. 



A brewer kept at his brewery a Siberian bloodhound so 

 savage that it would attack any one, not excepting its 

 master. The dog was shut up during the day and at 

 night was let out into a yard. One morning the dog 

 was left in the yard later than usual and an em- 

 ployee at the brewery, while walking through the yard, 

 was attacked and severely bitten by the dog. When he 

 sued for damages, the brewer set up as defense that the 

 injured man could not recover because he had been guilty 

 of contributory negligence in going into the yard where 

 he knew the dog was sometimes allowed. The Court of 

 Appeals sustained a judgment against the brewer, holding 

 that, while in a certain sense an action against the owner 

 for an injury by a vicious dog or other animal is based 

 upon negligence, such negligence consists not in the man- 

 ner of keeping or confining the animal or the care exer- 

 cised in respect to confining him, but in the fact that he 

 is ferocious and that the owner know T s it; and proof that 

 he is of a savage and ferocious nature is equivalent to ex- 

 press notice. The negligence consists in keeping such an 

 animal. As negligence in the ordinary sense is not the 

 ground of liability, so contributory negligence in its or- 

 dinary meaning is not a defense. The owner cannot be 

 relieved from liability by any act of the person injured, 

 unless it be one from which it can be affirmed that he 

 caused the injury himself, with a full knowledge of its 

 probable consequences. 



One Gates left his mare, which he knew to have the 

 habit of suddenly pulling back upon her halter, at a hotel 

 without giving any notice of this habit. While the host- 

 ler Avas hitching the mare she pulled back, and his finger, 

 being caught in the rope, was torn off at the second joint. 

 An action was brought and the Court said: "If a man has 

 a horse or other animal that is given to kicking and bit- 

 ing, it is his duty to take such measures as will prevent it 

 from injuring either persons or property, and if he can- 

 not use it in his business and prevent the animal from in- 

 dulging in its habit, he must cease to use it where the 

 person or property of others is exposed. But domestic 

 animals acquire many habits, indulgence in which may 

 or may not be dangerous to others, depending on the cir- 

 cumstances in which the habit is indulged in. * * * 

 It seems to me that the vicious habits or propensities 

 which the owner of an animal must (when known to him) 

 guard against, are such as are directly dangerous, such as 

 kicking and biting in horses, and hooking in horned ani- 

 mals and biting in dogs. These habits or propensities 

 may be indulged in at any moment and are inevitably 

 dangerous. If the habit is such as, by possibility, may be 

 dangerous if indulged in, adequate measures to prevent 

 its indulgence must be adopted. But when the chances 

 are so exceedingly small that careful and prudent per- 

 sons would not resort to measures of protection against 

 their occurrence, yet injury does happen, the owner is 

 not liable, although no measures of prevention are taken." 



A lad, eight years old, was playing in a street in New 

 York, when a dog ran between Ms legs, knocking him 

 down, and then turned and bit him. The boy sought re- 

 dress through his guardian. It was shown that the clog 

 Avas unmuzzled, and that a city ordinance required all 



dogs to be muzzled. On the trial, the judge held that 

 scienter, or knowledge by the owner of the dog's charac- 

 ter, was the gist of the action ; and that, as this had not 

 been proved, the boy could not recover. The court added: 

 " A dog of good character Avill not bite. Whether he goes 

 upon the street, in conformity to or in violation of the 

 ordinance in question ( he is alike harmless. But if a 

 vicious dog with biting tendencies goes upon the street, 

 he may, whether muzzled or not, knock people down and 

 otherwise injure them. A compliance with the ordinance 

 would not protect from liability the owner of such an 

 animal, Avho, knowing his vicious habits, permitted him 

 to go at large upon the highway. He would be liable to 

 the party injured, and the ordinance would afford no de- 

 fense to the action." 



The most amiable dogs, bike the most amiable men, 

 may become involved in quarrels, and it is not an un- 

 usual thing to have the battles fought over again in 

 court. For example, in one case the defendant's dog, 

 while properly muzzled and walking at his master's side, 

 was attacked by the plaintiff's dog. The latter was driven 

 away, but returned and renewed the attack. The de- 

 fendant then seized the plaintiff's dog by the leg, and 

 swinging him in the air, dashed out his brains against 

 the curb. The law which applied to this case was thus 

 expressed by the New York Court of Common Pleas: 

 "The owner of an animal may lawfully kill a dog if such 

 killing is necessary to save the animal from death or from 

 serious injury. The killing cannot be done to avenge an 

 attack that has ceased, and can only be justified when 

 done to avert impending danger of death or serious injury 

 to the animal. If two dogs are fighting and cannot 

 otherwise be separated, the dog that made the attack 

 may lawfully be killed. To constitute a justification it 

 must appear, however, that the killing was necessary 

 and that the dog that was killed Avas the aggressor. * * * 

 If, however, it is proved that a dog is accustomed to bite 

 mankind, that it Avas upon the highway unmuzzled and 

 in a condition to do injury to human beings, the killing 

 of it is lawful." 



In another action the plaintiff OAvned a small dog, the 

 defendant a large one. While following the defendant 

 along the street the large dog entered the yard of the 

 plaintiff and seized and killed the small dog. The 

 Supreme Court of New York was appealed to with the 

 following result: "It must be noticed in the outset that 

 the action is not for trespass on the plaintiff's close, ag- 

 gravated by the mischief done thereon, but is simply for 

 the damage sustained by the death of the dog. The 

 case, therefore, seems to fall within rule three of Moak's 

 Underbill on Torts, 'No person is legally responsible for 

 any act or omission not attributable to active or passive 

 volition on his part.' In other language, no person is re- 

 sponsible for an involuntary injury. If, Avhile following 

 its owner along a highway, a dog discovers game and 

 follows it, the owner is not liable. By the common law 

 the owner of a dog that worried and killed sheep Avas not 

 responsible for the damage done, and it required a 

 statute in our State to create such liability. The reason 

 of this rule was that the killing and worrying of sheep 

 could not be anticipated or expected to result from a dog 

 running at large. That rules applies here. The defend- 

 ant could not know or believe that her dog would kill or 

 injure the dog of this plaintiff simply because she per- 

 mitted her dog to folloAV her along the street." 



We have defined the principles of the common law, and 

 the cases cited show their application to certain states of 

 fact. These principles maintain generally in this country, 

 except so far as they have been modified by statutes in 

 some of the States. 



New Hampshire, whence our correspondent writes, has 

 greatly limited dog liberty. The general laws provide 

 that no person shall be liable for knling any dog Avhich 

 shall be found not having around its neck "a collar of 

 brass, tin or leather, with the name of the owner carved 

 or engraved thereon." This provision bears heavily on 

 the dog, and it is folloAved by one nearly as burdensome 

 to the owner: "Any person to whom, or Avhose property 

 any damage may be occasioned by a dog, not owned or 

 kept by said person, shall be entitled to recover of the 

 person Avho OAvns or keeps, or has said dog in his posses- 

 sion, all damages which may be [so occasioned, except in 

 cases where the same have been occasioned to the party 

 suffering such damage Avhile engaged in the commission 

 of a trespass or other tort." 



It will be observed that, by this provision, it matters 

 not whether the owner knows of his dog's vicious habits. 

 He is liable for all damage done by the dog to persons or 

 property, unless the person injured was engaged in com- 

 mitting a trespass or other tort. 



Under these statutes the question arose Avhether a man 

 having set his dog upon a neighbor's cows which Avere 

 trespassing on his ground, was liable for having caused 

 the death of one of the cows. The cow fell in jumping 

 over a fence while attempting to escape, and died from 

 the injuries received. The court said that if the dog, of 

 his ovm accord, had attacked the cows while they were 

 trespassing, his master Avould not have been liable, be- 

 cause the trespass of the cattle would have been the tres- 

 pass of their owner, within the meaning of the statute. 

 But the owner of the dog having set him upon the cows, 



a different question arose. He could only use such means 

 in driving the cattle from his grounds as Avere necessary 

 and reasonable; and it was for the jury to decide whether 

 the means used in this case were reasonable and necessary. 

 If they were, the owner would be liable, otherAvise not. 



In another case the plaintiff had been bitten while at- 

 tempting to remove a dog which was barking at a hole 

 in his pasture. On the trial the plaintiff maintained that 

 under this statute the person injured could recover, al- 

 though guilty of negligence Avhich contributed to his 

 injury, but the Court ruled that the statute was to be 

 construed with reference to the established rule of law, 

 that a party cannot recover for injuries resulting from his 

 OAvn negligence; and that the exception in the statute, 

 that persons trespassing or committing a tort Avhen in- 

 jured cannot recover, merely imposes the condition upon 

 the injured party's right of recovery, that it must appear 

 that he Avas not a trespasser Avhen the injury was re- 

 ceived. The doctrine of contributory negligence is ap- 

 plicable to cases under the statute as at common law. 



We know of no way to prevent a dog from Avearing a 

 spiked collar. The New Hampshire statute defines the 

 collar that a dog must wear if he values his life. No 

 matter how many spikes the collar may have, or how 

 effective it may be, in his contests Avith other dogs, it will 

 avail him nothing against the humblest citizen, if it is 

 not of the fashion prescribed by law. 



Presumably the collar of which our correspondent 

 writes was designed to protect the wearer from other 

 dogs. If dogs attack him they are alone responsible for 

 the injuries they receive from the collar. If, on the other 

 hand, he attacks them, the statute holds his master re- 

 sponsible for all the damage done, whether caused by the 

 dog's teeth or his spiked collar. 



The New Hampshire statute also allows any toAvn to 

 make by-laws for licensing, regulating or restraining 

 dogs, and our correspondent may find that, in addition to 

 the ample remedies we have mentioned, there are others 

 among the local provisions of his town. Authorities 

 which among others may be consulted are: 



Buck v. Moore; 35 Hun., 338. 



Shaver v. N. Y. & Lake Champlain Transportation Co., 31 Hun. , 

 56. 



Muller u. McKesson, 73 N. Y., 199. 

 Boecher v. Lutz, 30 Week. Dig. 481. 

 Barto i!. Sfcephan, 19 ih. 164. 

 Cooley on Torts, page 343. 

 Kershan v. Gates, 2 Sup'm. Ct. (T. & C.) 288. 

 Feick v. Andel, 1 City Ct., Sup. 61. 

 General Laws of N. H., page 280-1, §§ 7-10. 

 Mclntire v. Plaisted, 57 N. H., 606. 

 Quimhy v. Woodbury, 03 N. H~, 370. 



he ^porfatqmt %oumt 



Address all communications to the Forest and Stream Pub. Co. 



ON THE FLORIDA WEST COAST.-UI. 



THE next morning it blew a gale from E. N. E., giving 

 us a starboard stretch up along the coast. After 

 tying in a double reef, we felt our way out from among 

 the oyster bars, and on getting an offing of about a mile, 

 Ave trimmed flat and let her go, when go she did, up on 

 the easterly end of a long bar, carrying away the jaAvs of 

 the gaff, which, slipping off the mast, parted the throat 

 halliards, making a complete wreck of us. Then to add 

 to the general misery it commenced to rain as it only can 

 in Florida, the sea breaking over us continually. We 

 did not like it, but a philosophical turn of mind was very 

 necessary, as we had to Avait for the tide. The Artist was 

 pre-eminently a philosopher; he sketched our misery. 

 After clearing the bar Ave stood up for Cape Eomano with 

 the Avind more on our beam; we made good headA\ r ay and 

 reached the cape at sunset, making a safe harbor behind 

 the cape key, one of the group of keys which form the 

 cape. Here the fishing is very fine, with an abundance 

 of ducks, snipe, flamingoes, pelicans, etc. We caught 

 in the day's run seven kingfish and Spanish mackerel 

 with the trolling line. The mosquitoes humming on top 

 and the drumfish tuning up under us, kept us from over- 

 sleeping ourselves. 



We cruised around among the keys for several hours 

 the next day, and standing out of Malco Inlet kept up 

 along the coast, passing Caximbas Key and Bay. The 

 key can be well located by an immense shell mound sur- 

 mounted by two houses. In the eA-ening Ave made Estero 

 Bay, where we encountered immense shoals of large fish 

 winning out under our keel as we passed in. With 

 higher land on either side this is the very paradise for the 

 sportsman. In fact there are numerous rivers between 

 Charlotte Harbor and Cape Sable, not small creeks, but 

 rivers that you can sail up for two days with a good full 

 sail breeze' over your quarter; bordered for miles by an 

 impenetrable jungle, again by higher clear land/and 

 again by broad prairies, abounding Avith all kinds of 

 game, and reptiles, too, with perfect solitude and Aveeks 

 of beautiful Aveather. The thermometer ranges from 65° 

 to 80°. A jolly crew and a good boat under you complete 

 the happiness of a genuine cruiser. Again there is the 

 whole gulf to the Avestward, in Avhich, as soon as your 

 keel touches the salt water, you can with a certainty 

 throw over your trolling lines and strike fish that will 

 make you wish before you get them in that they had not 

 "caught on," and after you get them in the cockpit you 

 will get up on the seat to mop your brow and save your 

 shins. 



LeaAdng Estero Bay, several miles north from where 

 we entered, we bore north for Caloosahatchee River. 

 Passing between Point Ybel on Sanybel Island and the 

 mainland, we soon rounded up at Punta Eassa, and there 

 greeted friend Shultz as the first Avhite man Ave had seen 

 in three weeks. He gave us a royal good welcome, and 

 Avith his homelike comforts and interesting family we 



