Note 402 — INDEX

250. Atlantic R. Co. v. Weir, 63 Fla. 69; Lockridge v. Minneapolis R. Co., 161 Ia. 74 Accord. See Lindsay v. Cecchi, 3 Boyce, 133; Hyde v. McCreery, 145 App. Div. 729.

In Bourne v. Whitman, 209 Mass. 155, a duly licensed automobile was being driven by an unlicensed person. Knowlton, C. J., said:

“It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator, as to all consequences that the statute was intended to prevent. It has been said in a general way that such a violation is evidence of negligence of the violator, and it has sometimes been stated that this would show negligence that can be availed of as a ground of recovery by one who suffers any kind of an injury from him while this illegality continues; but it is now settled that it is not even evidence of negligence, except in reference to matters to which the statute relates. Davis v. John L. Whiting & Son Co., 201 Mass. 91, 96 and cases cited. A criminal statute in the usual form is enacted for the benefit of the public. It creates a duty to the public. Every member of the public is covered by the protecting influence of the obligation. If one suffers injury as an individual, in his person or his property, by a neglect of this duty, he has a remedy, not because our general criminal laws are divided in their operation, creating one duty to the public and a separate duty to individuals; but because as one of the public in a peculiar situation, he suffers a special injury, different in kind from that of the public generally, from the neglect of the public duty....

If we consider the effect of such a violation of law by a plaintiff, upon his right to recover, the principles that have been recognized are instructive. They were considered long ago in connection with our Sunday law. It has been established from early times that one who is violating a criminal law cannot recover for an injury to which his criminality was a directly contributing cause....

The only matter which seems to be left doubtful under our decisions in this class of cases, is what constitutes ‘illegality,’ which is sometimes a directly contributing cause of the injury. Some cases have been decided, which seem to imply that if there is an illegal element entering into a plaintiff’s act or conduct, and this act or conduct directly contributes to his injury, he cannot recover, although the illegal element or the objectionable quality of the act had no tendency to produce the injury, and the consequences would have been the same under the other existing conditions, if the criminal element had been absent. In other cases the decision seems to turn upon whether the criminal element in the act or conduct, considered by itself alone, operated as a direct cause to produce a result that would not have been produced under the same conditions in other respects, if the criminal element had been absent. This latter seems to be the pivotal question in most cases decided in other States.

The fact that the number of punishable misdemeanors has multiplied many times in recent years, as the relations of men in business and society have grown complex with the increase of population, is a reason why the violation of a criminal statute of slight importance should not affect one’s civil rights, except when this violation, viewed in reference to the element of criminality intended to be punished, has had a direct effect upon his cause of action. Our decisions seem to have been tending toward the adoption of such a rule. Welch v. Wesson, 6 Gray, 505. Spofford v. Harlow, 3 Allen, 176. Steele v. Burkhardt, 104 Mass. 59. Damon v. Scituate, 119 Mass. 66. Hall v. Ripley, 119 Mass. 135. Dudley v. Northampton Street Railway, 202 Mass. 443, 446. Moran v. Dickinson, 204 Mass. 559, 562. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 157.

Under particular statutes, we are brought back to the question, what is the legal element which is the essence of the command or prohibition? In most cases, the effect of doing or failing to do that which the law forbids or requires under a penalty, when considered in reference to its relation to one’s civil rights in collateral matters, ought to be limited pretty strictly. Take the case of driving without sleigh bells in violation of the law of the road. R. L., c. 54, § 3. Kidder v. Dunstable, 11 Gray, 342. Counter v. Couch, 8 Allen, 436, 437. The requirement of the law is that ‘No person shall travel on a bridge or way with a sleigh or sled drawn by a horse, unless there are at least three bells attached to some part of the harness.’ The wrong to be prevented is the failure to have bells while travelling in this way. The travelling in other respects is unobjectionable. The question arises whether the act should be deemed illegal as a whole, in reference to the rule that the courts will not aid one to obtain the fruits of his disobedience of law, or whether in this aspect its different qualities may be considered separately. It is possible to decide this question either way, but we think it is more consistent with justice and with the course of decision elsewhere, to hold that, in reference to the law of negligence and the rule as to rejection of causes of action that are founded on illegality, an act may be considered in its different aspects in its relation to the cause of action, and if only that part of it which is innocent affects the cause of action, the existence of an illegal element is immaterial. We do not think, under this statute, that one who drives in a sleigh without bells should be treated as a trespasser on the highway, although he is punishable criminally for the failure to have the bells attached to the harness, and is liable in damages to any member of the public who suffers a special injury by reason of this failure.

Consider the St. 1909, c. 514, § 74, which forbids, under a penalty, the regular operation of any elevator by a person under the age of sixteen years, and the regular operation of any rapidly running elevator by a person under the age of eighteen years. If a person under the prescribed age, while employed to operate an elevator, is injured through the negligence of the owner, in leaving it in an unsafe condition, shall his violation of the statute by entering this service before reaching the prescribed age, be treated as criminality, entering into every one of his acts in moving the elevator, so as to prevent his recovery for an injury from the joint effect of his employer’s negligence and his own application of the power to raise or lower the elevator? We think it better to hold, if his age and the degree of his competency, which might depend in part upon his age, had no causal connection with the injury, that his criminality was not a direct cause of the injury. In other words, that the punishable element in the act is only disobedience as to age, and although his act in applying the power to the elevator which brought him in contact with the defect, is punishable, and in a sense illegal because of the existence of that element, in determining the relation of his conduct to the cause of action, to see whether the court will aid him in the prosecution of it, we ought to limit the illegality to that part of his conduct towards which the statute is particularly directed. We are to consider the specific thing at which the statute is aimed, and the immediate effect that it was intended directly and proximately to accomplish by its command or prohibition....

Take the provision in St. 1903, c. 473, § 5, that ‘No person shall operate an automobile or motor cycle for hire, unless specially licensed by the commission so to do,’ and the earlier provision in the same section that no person shall ‘operate an automobile or motor cycle upon any public highway or private way laid out under authority of statute unless licensed so to do under the provisions of this act.’ The operating of the automobile in itself is unobjectionable. The illegal element in the act is the failure to have a license. The purpose of the requirement of a license is to secure competency in the operator. If in any case the failure to have a license, looking to those conditions that ordinarily accompany the failure to have it, is a cause contributing directly to an injury, a violator of the law would be legally responsible to another person injured by the failure; or, if he is injured himself, would be precluded from recovery against another person who negligently contributed to the injury. But we are of opinion that his failure in that respect is only evidence of negligence in reference to his fitness to operate a car, and to his skill in the actual management of it, unless in the case of the plaintiff, it is shown to be a contributing cause to the injury sued for, in which case it is a bar to recovery. We think that the operation of a car without a license, while it is a punishable act, does not render the operator a trespasser on the highway, but that the illegal element in the act is only the failure to have a license while operating it, so that if the operation and movement contributed to the accident with which the want of a license had no connection, except as a mere condition, they would not preclude the operator as a plaintiff from recovery. If the illegal quality of the act had no tendency to cause the accident, the fact that the act is punishable because of the illegality, ought not to preclude one from recovery for harmful results to which, without negligence, the innocent features of the act alone contributed.

The other part of this statute, relative to the licensing of automobiles, has been construed differently. In Dudley v. Northampton Street Railway, 202 Mass. 443, because of the peculiar provisions of the statute and the dangers and evils that it was intended to prevent, it was decided, after much consideration, that the having of such a machine in operation on a street, without a license, was the very essence of the illegality, and that the illegality was inseparable from the movement of the automobile upon the street at any time, for a single foot; that in such movement the machine was an outlaw, and any person on the street as an occupant of the automobile, participating in the movement of it, was for the time being a trespasser. Some of us were disinclined to lay down the law so broadly, and the opinion of the court was not unanimous; but the doctrine has been repeatedly reaffirmed and is now the established law of the Commonwealth. Feeley v. Melrose, 205 Mass. 329. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 158. The difference between this provision of the statute and that involved in the present case is in part one of form, but in connection with the form, it is still more the seeming purpose and intent of the Legislature as to permitting such machines upon the public ways without adequate means of identifying them and ascertaining their owner, together with the requirement that the machine itself, as a thing of power, shall have its own registration and legalization, the evidence of which it shall always carry with it....

We are of opinion that the law of these last cases should not be extended to the provision of the statute requiring every operator to have a personal license to operate the car. The jury should have been instructed that the defendant’s failure to have a license was only evidence of his negligence as to the management of the car.”

See also Holland v. Boston, 213 Mass. 560; Holden v. McGillicuddy, 215 Mass. 563; Conroy v. Mather, 217 Mass. 91.

In Taylor v. Stewart, 172 N. C. 203, Brown, J., (for the court) said:

“The plaintiff sues to recover for the death of his child, who was run over and killed by an automobile, belonging to the defendant J. W. Stewart. At the time the car was being operated by James Stewart, the son of the said J. W. Stewart, a lad of 13 years of age. A colored chauffeur, who had been sent out with the car by the owner, was sitting beside the lad.

His honor charged the jury that under the laws of North Carolina it was a misdemeanor for a person under the age of 16 to drive an automobile upon any highway or public street, and that it is a circumstance from which the jury may infer negligence, and that it does not necessarily follow that the jury shall conclude it was negligence, but that it is a circumstance to go to the jury. In this his honor erred. He should have instructed the jury that it is negligence per se for the defendant James Stewart to have driven the machine in violation of the statute law of the state. Zageir v. Southern Express Co., 89 S. E. 44; Paul v. Railroad, 170 N. C. 231, 87 S. E. 66, L. R. A. 1916B, 1079; Ledbetter v. English, 166 N. C. 125, 81 S. E. 1066.”

See Davis, The Plaintiff’s Illegal Act as a Defense in Actions of Tort, 18 Harvard Law Rev. 505; Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 317.

251. Part of case omitted; also arguments of counsel.

252. Williams v. New Albany R. Co., 5 Ind. 111; Vandalia R. v. Duling, 60 Ind. App. 332; Union R. Co. v. Rollins, 5 Kan. 167 (as to legislation, see Darling v. Rodgers, 7 Kan. 592; Missouri R. Co. v. Olden, 72 Kan. 110); Crawford v. Hughes, 3 J. J. Marsh. 433; Little v. Lathrop, 5 Me. 356; Richardson v. Milburn, 11 Md. 340; Eames v. Salem R. Co., 98 Mass. 560; Collins v. Lundquist, 154 Mich. 658; Vandegrift v. Rediker, 22 N. J. Law, 185; Munger v. Tonawanda R. Co., 4 N. Y. 349; Gregg v. Gregg, 55 Pa. St. 227; Hurd v. Rutland R. Co., 25 Vt. 116; Metropolitan Ins. Co. v. Clark, 145 Wis. 181 Accord.

As between adjoining owners, in absence of statutory duty as to division fence, see Bissell v. Southworth, 1 Root, 269; McNeer v. Boone, 52 Ill. App. 181; Myers v. Dodd, 9 Ind. 290; Stephenson v. Elliott, 2 Ind. App. 233; De Mers v. Rohan, 126 Ia. 488; Markin v. Priddy, 40 Kan. 684; Sturtevant v. Merrill, 33 Me. 62; Gillespie v. Hendren, 98 Mo. App. 622; Tewksbury v. Bucklin, 7 N. H. 518; Deyo v. Stewart, 4 Denio, 101; Angell v. Hill, 18 N. Y. Supp. 824; Kobayashi v. Strangeway, 64 Wash. 36.

As to liability of the owner for unauthorized entry of a dog on another’s lands, see Brown v. Giles, 1 Carr. & P. 118; Read v. Edwards, 17 C. B. N. S. 245; Doyle v. Vance, 6 Vict. L. R. (Law) 87.

Trespass on unenclosed land by chickens, see Evans v. McLalin, 189 Mo. App. 310.

253. Morgan v. Hudnell, 52 Ohio St. 552 Accord.

254. Arguments omitted.

255. Hartford v. Brady, 114 Mass. 466; Wood v. Snider, 187 N. Y. 28; Erdman v. Gottshall, 9 Pa. Super. Ct. 295; Metropolitan Ins. Co. v. Clark, 145 Wis. 181 Accord.

Cattle, while being driven on the highway, enter on the unfenced land of A adjoining the highway, and pass thence on to the unfenced land of B, adjoining the land of A, but not adjoining the highway. B has an action against the owner of the cattle. Wood v. Snider, 187 N. Y. 28. See also note in 12 L. R. A. N. S. 912.

256. As to the effect of statutes requiring lands to be fenced, see Northern R. Co. v. Cunningham, 89 Fed. 594; Comerford v. Dupuy, 17 Cal. 308 (as to later legislation see Hahn v. Garratt, 69 Cal. 146; Fisch v. Nice, 12 Cal. App. 60); Nuckolls v. Gaut, 12 Col. 361; Wright v. Wright, 21 Conn. 329; Frazier v. Nortinus, 34 Ia. 82 (but no application to cultivated land—Hallock v. Hughes, 42 Ia. 516); Louisville R. Co. v. Simmons, 85 Ky. 151; Gorman v. Pacific R. Co., 26 Mo. 441 (as to later legislation, see O’Riley v. Diss, 41 Mo. App. 184); Smith v. Williams, 2 Mont. 195; Randall v. Gross, 67 Neb. 255 (no application to cultivated lands); Jones v. Witherspoon, 52 N. C. 555; Kerwhaker v. Cleveland R. Co., 3 Ohio St. 172; Walker v. Bloomingcamp, 34 Or. 391; Gregg v. Gregg, 55 Pa. St. 227 (as to later legislation see Thompson v. Kyler, 9 Pa. Co. Ct. R. 205); Davis v. Davis, 70 Tex. 123; Poindexter v. May, 98 Va. 143; Walls v. Cunningham, 123 Wis. 346.

As to effect of statutes providing for division fences, see D’Arcy v. Miller, 86 Ill. 102; Duffees v. Judd, 48 Ia. 256; Wills v. Walters, 5 Bush, 351; Gooch v. Stephenson, 13 Me. 371; Shepherd v. Hees, 12 Johns. 433; Barber v. Mensch, 157 Pa. St. 390; Tower v. Providence R. Co., 2 R. I. 404.

Such statutes apply only as between adjoining owners: Aylesworth v. Herrington, 17 Mich. 417; Wilder v. Wilder, 38 Vt. 678; and as to cattle lawfully on the adjoining land: Lord v. Wormwood, 29 Me. 282; Vandegrift v. Rediker, 22 N. J. Law, 185; Melody v. Reab, 4 Mass. 471; Lawrence v. Combs, 37 N. H. 331.

257. Arguments and portions of the opinion omitted.

258. Buford v. Houtz, 133 U. S. 320; Nashville R. Co. v. Peacock, 25 Ala. 229 (as to later legislation, see Phillips v. Bynum, 145 Ala. 549); Little Rock R. Co. v. Finley, 37 Ark. 562; Morris v. Fraker, 5 Col. 425; Studwell v. Ritch, 14 Conn. 292; Sprague v. Fremont R. Co., 6 Dak. 86; Savannah R. Co. v. Geiger, 21 Fla. 669; Macon R. Co. v. Lester, 30 Ga. 911 (but see later legislation, Puckett v. Young, 112 Ga. 578); Seeley v. Peters, 5 Gilm. 130 (but see Ill. Rev. St. c. 8, § 1); Bulpit v. Mathews, 145 Ill. 345; Vicksburgh R. Co. v. Patton, 31 Miss. 156; Gorman v. Pacific R. Co., 26 Mo. 441 (but see later legislation, Gumm v. Jones, 115 Mo. App. 597); Delaney v. Errickson, 10 Neb. 492; Laws v. North Carolina R. Co., 52 N. C. 468 (but see later legislation, State v. Mathis, 149 N. C. 546); Cleveland R. Co. v. Elliott, 4 Ohio St. 474 (but see later legislation, Marsh v. Koons, 78 Ohio St. 68); Murray v. South Carolina R. Co., 10 Rich. Law, 227; Hardman v. King, 14 Wyo. 503 Accord.

Turning or driving cattle on another’s uninclosed, unimproved lands, where the common law is inapplicable or is abrogated by legislation: Lazarus v. Phelps, 152 U. S. 81; Bell v. Gonzales, 35 Col. 138; Bedden v. Clark, 76 Ill. 338; Dexter v. Heaghney, 47 Ill. App. 205; Harrison v. Adamson, 76 Ia. 337; Union R. Co. v. Rollins, 5 Kan. 167; Powers v. Kindt, 13 Kan. 74; Monroe v. Cannon, 24 Mont. 316; Musselshell Cattle Co. v. Woolfolk, 34 Mont. 126; Herrin v. Sieben, 46 Mont. 226; Delaney v. Errickson, 11 Neb. 533; Addington v. Canfield, 11 Okl. 204; Thomas v. Blythe, 44 Utah, 1; Cosgriff v. Miller, 10 Wyo. 190; Martin v. Platte Valley Sheep Co., 12 Wyo. 432; Healey v. Smith, 14 Wyo. 263. Compare Avery v. Maxwell, 4 N. H. 36.

Compare reasons given for the inapplicability of the common-law rule to Colorado. Beck, J., in Morris v. Fraker, 5 Col. 425, 428, 429.

259. Arguments omitted.

260. See Herold v. Meyers, 20 Ia. 378; Williams v. Michigan R. Co., 2 Mich. 259; Christy v. Hughes, 24 Mo. App. 275; Peek v. Western Tel. Co., 159 Mo. App. 148; Crandall v. Eldridge, 46 Hun, 411.

Whether there is a right of pasturage on uninclosed lands, where the common law rule is not in force, see Union R. Co. v. Rollins, 5 Kan. 167; Caulkins v. Mathews, 5 Kan. 191; Knight v. Abert, 6 Pa. St. 472.

261. The arguments are omitted.

262. After stating that “if a man have a beast, as a bull, cow, horse, or dog, used to hurt people, if the owner know not his quality, he is not punishable, &c.,” Hale adds (citing authorities) that “these things seem to be agreeable to law.

“1. If the owner have notice of the quality of his beast, and it doth anybody hurt, he is chargeable with an action for it.

“2. Though he have no particular notice that he did any such thing before, yet if it be a beast that is ferae naturae, as a lion, a bear, a wolf, yea an ape or monkey, if he get loose and do harm to any person, the owner is liable to an action for the damage, and so I knew it adjudged in Andrew Baker’s Case, whose child was bit by a monkey that broke its chain and got loose.

“3. And therefore in case of such a wild beast, or in case of a bull or cow, that doth damage, where the owner knows of it, he must at his peril keep him up safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm, the owner is liable to answer damages.” 1 Hale’s P. C. 430, Part I, c. 33.—Reporter’s Note.

263. Jackson v. Smithson, 15 M. & W. 563; Card v. Case, 5 C. B. 622; Strouse v. Leipf, 101 Ala. 433; Holt v. Leslie, 116 Ark. 433; Laverone v. Mangianti, 41 Cal. 138; Gooding v. Chutes Co., 155 Cal. 620; Woolf v. Chalker, 31 Conn. 121; Kightlinger v. Egan, 75 Ill. 141; Gordon v. Kaufman, 44 Ind. App. 603; Holt v. Myers, 47 Ind. App. 118; Kennett v. Engle, 105 Mich. 693; Hall v. Huber, 61 Mo. App. 384; O’Neill v. Blase, 94 Mo. App. 648; Muller v. McKesson, 73 N. Y. 195; People v. Shields, 142 App. Div. 194; Tubbs v. Shears, 55 Okl. 610; Mann v. Weiand, 81* Pa. St. 243; McCaskill v. Elliot, 5 Strob. 196; Missio v. Williams, 129 Tenn. 504; Harris v. Carstens Packing Co., 43 Wash. 647; Gunderson v. Bieren, 80 Wash. 459 Accord.

264. See Mason v. Keeling, 12 Mod. 332.

265. Besozzi v. Harris, 1 F. & F. 92; Texas R. Co. v. Juneman, 71 Fed. 939 (wild steer); Jackson v. Baker, 24 App. D. C. 100; Graham v. Payne, 122 Ind. 403 (ram); Marble v. Ross, 124 Mass. 44 (bull); Marquet v. La Duke, 96 Mich. 596; Phillips v. Garner, 106 Miss. 828; Manger v. Shipman, 30 Neb. 352; Van Leuven v. Lyke, 1 N. Y. 515; Mahoney v. Dwyer, 84 Hun, 348; Malloy v. Starin, 113 App. Div. 852 (reversed on other grounds, 191 N. Y. 21); Stamp v. Eighty-sixth St. Amusement Co., 95 Misc. 599 Accord.

Compare Hayes v. Miller, 150 Ala. 621, as to a wolf domesticated to such an extent that the owner believed it harmless.

As to the liability of the owner of bees, see O’Gorman v. O’Gorman, [1903] 2 I. R. 573; Parsons v. Manser, 119 Ia. 88; Petey Mfg. Co. v. Dryden, 5 Pennewill, 166; Lucas v. Pettit, 12 Ont. Law, 448; Notes in 97 Am. State Rep. 287, and 62 L. R. A. 132. Compare Earl v. Van Alstine, 8 Barb. 630; Olmsted v. Rich, 25 N. Y. St. Rep. 271; Arkadelphia v. Clark, 52 Ark. 23.

266. “Certain animals ferae naturae may doubtless be domesticated to such an extent as to be classed, in respect to the liability of the owner for injuries they commit, with the class known as tame or domestic animals; but inasmuch as they are liable to relapse into their wild habits and to become mischievous, the rule is that if they do so, and the owner becomes notified of their vicious habit, they are included in the same rule as if they had never been domesticated, the gist of the action in such a case, as in the case of untamed wild animals, being not merely the negligent keeping of the animal, but the keeping of the same with knowledge of the vicious and mischievous propensity of the animal.” Clifford, J., in Spring Company v. Edgar, 99 U. S. 645, 653.

267. See Bennet v. Bostock, 13 Scottish Sheriff Court Reports, 50; in the same direction with Scribner v. Kelley, 38 Barb. 14, cited in the foregoing opinion.

268. Kelley v. Killourey, 81 Conn. 320; Keightlinger v. Egan, 65 Ill. 235; Feldman v. Sellig, 110 Ill. App. 130; Donahue v. Scott Transfer Co., 141 Ill. App. 174; Bush v. Wathen, 104 Ky. 548; Quimby v. Woodbury, 63 N. H. 370; Badali v. Smith, (Tex. Civ. App.) 37 S. W. 642 Accord.

“There are expressions in some of the cases indicating that the liability of the owner is not affected by the negligence of the person injured.... If a person with full knowledge of the evil propensities of an animal wantonly excites him or voluntarily and unnecessarily puts himself in the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. In such a case it cannot be said, in a legal sense, that the keeping of the animal, which is the gravamen of the offence, produced the injury.... But as the owner is held to a rigorous rule of liability on account of the danger to human life and limb, by harboring and keeping such animals, it follows that he ought not to be relieved from it by slight negligence or want of ordinary care [on the part of the plaintiff].... As negligence, in the ordinary sense, is not the ground of liability, so contributory negligence, in its ordinary meaning, is not a defence. These terms are not used in a strictly legal sense in this class of actions, but for convenience ... I think ... that the rule of liability before indicated is a reasonable one, and that the owner cannot be relieved from it 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.” Church, C. J., in Muller v. McKesson, 73 N. Y. 195, 201, 202, 204.

So Woolf v. Chalker, 31 Conn. 121; Vredenberg v. Behan, 33 La. Ann. 627; Fake v. Addicks, 45 Minn. 37; Malloy v. Starin, 113 App. Div. 852.

Negligence of the person injured, see Graham v. Walsh, 14 Ga. App. 287; Buckley v. Gee, 55 Ill. App. 388; Milne v. Walker, 59 Ia. 186; Carpenter v. Latta, 29 Kan. 591; Tolin v. Terrell, 133 Ky. 210; Garland v. Hewes, 101 Me. 549; Twigg v. Ryland, 62 Md. 380; Spellman v. Dyer, 186 Mass. 176; Ryan v. Marren, 216 Mass. 556; Warrick v. Farley, 95 Neb. 565; Earhart v. Youngblood, 27 Pa. St. 331.

269. Arguments omitted. Compare report of same case in 1 Ld. Raym. 606.

270. Sed quaere: for in S. C. 1 Ld. Ray. 608, it is said that the case was adjourned, and that afterwards the parties agreed, and therefore no judgment was given.—Reporter’s Note.

As to the requirement of scienter in case of injury by domestic animals, Shaw v. Craft, 37 Fed. 317; Kitchens v. Elliott, 114 Ala. 290; Finney v. Curtis, 78 Cal. 498; Warner v. Chamberlain, 7 Houst. 18; Reed v. Southern Express Co., 95 Ga. 108; Domm v. Hollenbeck, 259 Ill. 382; Indianapolis Abattoir Co. v. Bailey, 54 Ind. App. 370; Trumble v. Happy, 114 Ia. 624; Ballou v. Humphrey, 8 Kan. 219; Murray v. Young, 12 Bush. 337; Goode v. Martin, 57 Md. 606; Dix v. Somerset Coal Co., 217 Mass. 146; Durrell v. Johnson, 31 Neb. 796; Smith v. Donohue, 49 N. J. Law, 548; Vrooman v. Lawyer, 13 Johns. 339; Dufer v. Cully, 3 Or. 377; Robinson v. Marino, 3 Wash. 434; Johnston v. Mack Mfg. Co., 65 W. Va. 544; Kertschacke v. Ludwig, 28 Wis. 430 Accord.

Liability for injury to trespassers in case of scienter: Woolf v. Chalker, 31 Conn. 121; Conway v. Grant, 88 Ga. 40; Engebretson v. Bremer, 128 Minn. 232; Loomis v. Terry, 17 Wend. 496; Pierret v. Moller, 3 E. D. Smith, 574; Sherfey v. Bartley, 4 Sneed, 58.

Liability where dog runs at large unmuzzled in violation of ordinance: Buchanan v. Stout, 139 App. Div. 204.

Where vicious dog kills trespassing dog: Wiley v. Slater. 22 Barb. 506.

What constitutes knowledge, see: Shaw v. Craft, 37 Fed. 317; Barclay v. Hartman, 2 Marv. 351; Keightlinger v. Egan, 65 Ill. 235; Domm v. Hollenbeck, 259 Ill. 382; Kolb v. Klages, 27 Ill. App. 531; Cameron v. Bryan, 89 Ia. 214; Holt v. Myers, 47 Ind. App. 118; Murray v. Young, 12 Bush, 337; Twigg v. Ryland, 62 Md. 380; Knowles v. Mulder, 74 Mich. 202; Slater v. Sorge, 166 Mich. 173; Rowe v. Ehrmanntraut, 92 Minn. 17; Reynolds v. Hussey, 64 N. H. 64; Emmons v. Stevane, 73 N. J. Law, 349, 77 N. J. Law, 570; Rider v. White, 65 N. Y. 54; Brice v. Bauer, 108 N. Y. 428; Martin v. Borden, 123 App. Div. 66; McGarry v. New York R. Co., 60 N. Y. Sup. Ct. 367; Hayes v. Smith, 62 Ohio St. 161; Holden v. Shattuck, 34 Vt. 336.

Knowledge of single vicious act: Eastman v. Scott, 182 Mass. 192; Kittredge v. Elliott, 16 N. H. 77; Keenan v. Gutta Percha Mfg. Co., 46 Hun, 544; Cockerham v. Nixon, 11 Ired. 269. Compare: Linck v. Scheffel, 32 Ill. App. 17; Cooper v. Cashman, 190 Mass. 75; Buckley v. Leonard, 4 Denio, 500.

Statutes making owners or keepers of dogs liable irrespective of scienter or of negligence in keeping are not uncommon, but vary greatly in detail.

271. Worthen v. Love, 60 Vt. 285 Accord. Baker v. Snell, [1908] 2 K. B. 352, 825; Laverone v. Mangianti, 41 Cal. 138; Muller v. McKesson, 73 N. Y. 195; Dockerty v. Hudson, 125 Ind. 102 Contra.

Compare: The Lord Derby, 17 Fed. 265; Melsheimer v. Sullivan, 1 Col. App. 22; Woodbridge v. Marks, 17 App. Div. 139; Lloyd v. Bowen, 170 N. C. 216; Hayes v. Smith, 62 Ohio St. 161; Fallon v. O’Brien, 12 R. I. 518.

See also Vredenberg v. Behan, 33 La. Ann. 627 (bear teased by third person broke loose and injured plaintiff); Kinmouth v. McDougall, 19 N. Y. Supp. 771 (ram teased by children injured plaintiff).

See Bevan, The Responsibility at Common Law for the Keeping of Animals, 22 Harvard Law Rev. 465.

272. Compare Merritt v. Matchett, 135 Mo. App. 176.

273. Hadwell v. Righton, [1907] 2 K. B. 345; Higgins v. Searle, 25 Times L. R. 301; Klenberg v. Russell, 125 Ind. 531; Dix v. Somerset Coal Co., 217 Mass. 146; Shipley v. Colclough, 81 Mich. 624; Smith v. Donahue, 49 N. J. Law, 548; Meegan v. McKay, 1 Okl. 59 Accord. But see Barnes v. Chapin, 4 All. 444.

274. Jewett v. Gage, 55 Me. 538 (hog) Accord.

Compare Coulter, J., in Goodman v. Gay, 15 Pa. St. 188, 193, 194; Corcoran v. Kelly, 61 Misc. 323.

A fortiori if one turns loose a vicious animal: McGuire v. Ringrose, 41 La. Ann. 1029.

Injuries by animals running at large contrary to statute, see: Williams v. Brennan, 213 Mass. 28; Low v. Barnes, 30 Okl. 15; Palmer v. Saccocia, 33 R. I. 476.

275. In the argument for defendant the declaration is set out as follows:—

“In a plea of the case for that the said plaintiff, on the 14th day of September, 1855, was possessed of a valuable horse, of the value of $125.00, which was peaceably and of right depasturing in his own close, and the defendant was possessed of another horse, vicious and unruly, which was running at large where of right it ought not to be, and being so unlawfully at large, broke into the plaintiff’s close, at the time aforesaid, and viciously and wantonly kicked, reared upon, and injured the plaintiff’s horse, so that his death was caused thereby, which vicious habits and propensities were well known to the defendant at the time aforesaid. To the damage, &c.”

276. The arguments are omitted.

277. Angus v. Radin, 2 South. (N. J.) 815 Accord. The same result has often been reached in an action of trespass quare clausum in which the injury by the trespassing animal is set up in aggravation. Lee v. Riley, 17 C. B. N. S. 722; Theyer v. Purnell, [1918] 2 K. B. 333; Van Leuven v. Lyke, 1 N. Y. 515; Dolph v. Ferris, 7 Watts & Sergt. 367; Chunot v. Larson, 43 Wis. 536.

But see McDonald v. Jodrey, 8 Pa. Co. Ct. R. 142 (cat went on plaintiff’s premises and killed canary).

278. Statement and arguments omitted.

279. 17 C. B. N. S. 260.

280. 13 C. B. N. S. 430.

281. 18 C. B. N. S. 732.

282. L. R. 10 C. P. 10.

283. McClain v. Lewiston Driving Ass’n, 17 Idaho, 63; Green v. Doyle, 21 Ill. App. 205; Chunot v. Larson, 43 Wis. 536 Accord.

Buck v. Moore, 35 Hun, 338 (defendant’s trespassing dog killed plaintiff’s dog); Van Etten v. Noyes, 128 App. Div. 406 Contra.

284. Statement condensed. Arguments and portions of opinions omitted.

285. But compare Bischoff v. Cheney, 89 Conn. 1 (trespassing cat).

In Pollock on Torts, 6th ed., 479, it is said that the owner of cattle and other live stock straying on the land of others is “liable only for natural and probable consequences, not for an unexpected event, such as a horse not previously known to be vicious kicking a human being.” In 1 Beven on Negligence, 2d ed., 637, it is said, that if animals are trespassing and do injury not in accordance with the ordinary instinct of the animals, “the owner is not liable for the injury apart from the trespass (though he may be for the trespass), unless he knows of the particular vice which caused the injury.”

See Fisk, J., in Peterson v. Conlan, 18 N. D. 205, 212.

286. Statement abridged. Arguments in all the courts omitted; also opinions in Court of Exchequer.

287. “It is not every use to which the land is put that brings into play that principle [Rylands v. Fletcher]. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.” Lord Moulton in Rickards v. Lothian, [1913] A. C. 263, 280.

“This was a case of the escape of water from lavatory pipes. It would appear, therefore, that the construction of distributing water-pipes in a building is an ordinary and natural use of land, but that the construction of the water-mains or reservoirs from which the water is obtained is not so. Such unreal and impracticable distinctions are not creditable to the development of English law.” Salmond, Torts (4 ed.) § 61, n. 13.

See the remarks of Doe, C. J., in Brown v. Collins, infra, p. 482.

“This rule is rightly applicable only to such unusual and extraordinary uses of property in reference to the benefits to be derived from the use and the dangers or losses to which others are exposed, as should not be permitted except at the sole risk of the user. The standard of duty established by the courts in these cases is that every owner shall refrain from these unwarrantable and extremely dangerous uses of property unless he provides safeguards whose perfection he guarantees.... The principle applicable to the erection of common buildings whose fall might do damage to persons or property on the adjacent premises holds owners to a less strict duty. This principle is that where a certain lawful use of property will bring to pass wrongful consequences from the condition in which the property is put, if these are not guarded against, an owner who makes such a use is bound at his peril to see that proper care is taken in every particular to prevent the wrong.... The duty which the law imposes upon an owner of real estate in such a case, is to make the conditions safe so far as it can be done by the exercise of ordinary care on the part of all those engaged in the work. He is responsible for the negligence of independent contractors as well as for that of his servants. This rule is applicable to every one who builds an ordinary wall which is liable to do serious injury by falling outside of his own premises.... The uses of property governed by this rule are those that bring new conditions which involve risks to the persons or property of others, but which are ordinary and usual and in a sense natural, as incident to the ownership of the land. The rule first referred to applies to unusual and extraordinary uses which are so fraught with peril to others that the owner should not be permitted to adopt them for his own purposes without absolutely protecting his neighbors from injury or loss by reason of the use.” Knowlton, J., in Ainsworth v. Lakin, 180 Mass. 397, 399–401.