GRAZING.
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' is bound to keep it secure at his peril. If it escapes and does mischief,
' he is liable without proof of negligence, neither is proof required that he
' knew the animal to be mischievous, or if it is a notoriously fierce or mischie-
' vous species (5).' In Smith's leading cases, in the notes on Fletcher v.
Rylands (6) it is said :—
' The law of England recognizes two distinct classes of animals: The first class
consists of such animals as sheep, horses, oxen, and dogs, which the law assumes not
to be of a dangerous nature, and a person who keeps an animal of this class is not liable
for any damage it may do, when not trespassing, unless he knew that it was in fact
dangerous. The other class consists of animals which have not been shown by experi-
ence to be harmless by nature; and one who keeps animals of this class must prevent
them from doing injury under any circumstances, unless the person to whom it is done
brings it on himself.'
In the English case on which these remarks are based, namely, Filburn v.
People's Palace Company (2), it was held that an elephant ' did not belong
' to a class which, according to the experience of mankind, is not danger-
' ous to man, and therefore the owner kept such an animal at his own risk,
' and his liability for damage done by it was not affected by his ignorance
' of its dangerous character.'
" I understand the remarks of my learned predecessor in Maung Gyi v.
Po To (1) above cited to go no further than to suggest that a man should
be liable for injury caused by his animal, whether tame or wild, if it is
proved that the injury was due to the owner's negligence. In that view,
it would not be necessary to draw a distinction between wild and domes-
tic animals. The point for decision would be whether the owner was
guilty of negligence or whether he used such care as in the circumstances
of the case was reasonable and ordinarily sufficient. The amount of care
required would vary according to the class of the animal and according to
its known disposition. It could not, I think, be laid down in this country
that a man is liable for any damage done by his elephant without any proof
of negligence, or that he knew it to be of a vicious disposition. In view of
the manner in, and extent to, which elephants are employed in this country,
such a proposition would be manifestly unjust.
" In the present case, therefore, I think it was for the plaintiff to prove that
the damage done to his elephant was caused, or rendered possible, by the
defendant's negligence. In considering the question of negligence, the
defendant's knowledge or want of knowledge that the elephant was of a
vicious disposition would be an important point. In a suit of this kind,
where an animal like an elephant is concerned, I think the burden of proving
negligence is in the first place on the plaintiff who avers it. It might be
otherwise if injury by a tiger or bear were concerned.
" I agree with the Lower Courts in thinking that it is not proved that the
defendant knew that the elephant 'Kya Gyi' was of a vicious disposition.
It was not therefore incumbent on her to take more than ordinary precau-
tions with him. It does not seem to be shown that ordinary precautions
were neglected. It is alleged that ' Kya Gyi' twice gored the deceased
elephant ' Do,' and the mahout called by the plaintiff declares that he had
neither bell nor fetters. On the other hand, as pointed out in the judgment
of the Court of First Instance, the plaintiff himself admitted that ' Kya Gyi'
had a bell and fetters on the second occasion. It is admitted that all the
other elephants of the defendant had bells and fetters; there is direct