#### Mann *versus*Weiand.

1. In an action charging defendant -with wrongfully and negligently keeping dogs of a ferocious nature, that had been used with the defendant’s knowledge to worry and frighten horses on the highway, and that by such conduct of the dogs a wagon, on which the husband of plaintiff was riding, was upset, and he was killed, one instance of such conduct previously, of which the owner had had notice, is evidence on which owner may be made liable.

2. An owner of a dog with such knowledge is bound so to keep him as to guard against similar conduct; he is bound to secure him at all events, and if the mode of securing be insufficient, he is liable to persons afterwards injured.

3. A ferocious animal, liable to do injury, is ja nuisance, and by keeping it after notice, the owner is chargeable for any-neglect to 'keep it with such care that it cannot damage a person without essential fault.

4. The same rule applies to vicious dogs as to nuisances.

5. Keeping a vicious dog near a Jiighway, endangering persons passing *244thereon, renders him who knowingly keeps it there liable to indictment, and also to an action to the person injured.

6. The acts of aggression brought to the notice of the owner need not be precisely similar to that on which the action against him is founded ; they should indicate a disposition to commit injuries substantially like those on which the action is based.

7. When the owner of a dog has notice of a vicious act, and the dog after-wards commits another, evidence of the general peaceable character of the dog cannot defeat the action, but in a conflict of testimony, the general conduct and habits of the dog may be considered in determining the credibility of the witnesses.

8. The evidence in this case was that the defendant owned two dogs; as a wagon passed along the road near his house the dogs rushed out, commenced fighting with a strange dog accompanying the wagon, got under the feet of the horses, they ran away and upset the wagon, by which the husband of the plaintiff was killed. *Held,*that in an action by the widow under the act of April 15th, 1851 (Negligence), the fact that the dogs were so fighting near the horses’

. legs would not defeat the action, if the running away of the horses was occasioned by defendant’s own vicious dogs..

9. The deceased had nothing to do with the wagon, but had been allowed by the driver of the wagon to ride on it; the negligent acts of the driver could not be imputed to the deceased so as to constitute contributory negligence.

10. If the injury was caused by the joint act of the driver and the defendant it would be no defence to the action if the deceased was guilty of no negligence.

11. Under the act of April 15th, 1869 (Witnesses), the defendant was a competent witness.

12. The action is not for injuries sustained by the deceased, but for injuries sustained by his wife by his death.

13. The deceased never had this cause of action; it arose on and after his death, and accrued to his widow under the act of April 26th, 1855.

March 16tb, 1875.

Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Northampton*County, to January Term, 1875.

This was an action on the case, brought January 4th, 1872, by Sarah Weiand against Samuel Mann.

The declaration was that the plaintiff had for a long time “ wrongfully and negligently ” kept a “ dog of a ferocious and mischievous nature, he the said defendant during all that time well knowing that the said dog then was of a ferocious and mischievous nature, and was used and accustomed to attack, worry, and frighten horses, etc., attached or hitched to carriages, etc., drawn and passing along the highway, by and near the dwelling-house of the said defendant . . . which said dog afterwards, and while the defendant so wrongfully, injuriously, and negligently kept the same . . . did attack and worry a certain team of horses attached, etc., to a wagon then and there being carefully driven and passing in and along the said public highway "at or near the dwelling-house of the defendant, on which wagon Jacob Weiand, the husband of the plaintiff, was then seated and riding, so that *245by reason of tbe said dog attacking and worrying said team, etc., the said team, etc., was frightened and did run away, etc., and did, etc., upset said wagon and throw, etc., the said Jacob Weiand, etc., violently, etc., on the ground and stones,” that he received many cuts and injuries, from the effect of which he died.

The defendant pleaded “ not guilty.”

The suit was brought under the 19th section of the act of .April 15th, 1851 (Pamph. L., 674), 2 Br. Purd., 1093, pi. 2, which enacts:

“ Whenever death shall be occasioned by unlawful violence or negligence, and no suit be brought for damages by the party injured during his life, the widow of any such deceased, or if there be no widow, the personal representatives may maintain an action and recover damages for the death thus occasioned.”

The case was tried September 18th, 1874, before W. J. Kirkpatrick, P. J.

For the plaintiffs *David Savitz*testified: “The defendant lived about a couple of rods from the Upper Easton road. Once I drove by with Jacob Weiand,-on the highway, by the house of defendant. Had five horses to the wagon. The wagon was empty. It was while it was emp”ty Weiand was on it. This was in August, 1871. It was my own team. W eiand got on a little way the other side of defendant’s house. I was driving the horses with a check-line. I was walking beside the horses all the way. Nothing happened till we got to defendant’s house. There was a strange dog on the road. Defendant’s dogs came out and began to fight. They got under the horses; then the horses started off. I stuck to the saddle-horse as tight as I could. The tongue-chain broke, and then the four horses ran off. The saddle-horse stayed back. They ran a piece, and upset the wagon. When we got to the wagon, found the wagon upset. • My son and Weiand were under the body of the wagon. We took the body of the wagon away so they could get up. When we got Weiand out he could not stand. He could talk a little, But not much. Don’t know whose the strange dog was. He came to us, and stayed with the wagon. The dog was on the opposite side from defendant’s house. In front of the house the dogs rushed out. Did not hear them bark before I got there. There is a paling fence along the house. The dogs jumped over the fence. It is about three and a half feet high. It sets on a wall. It was between four and five feet. One dog ran back of the wagon; the other ran under the wagon. They did not fight long before they got under the horses. They got under the two leader horses; they *246made a great deal of noise. The horses did not attempt to run away before the dogs got under them. They ran a couple of rods before the chain broke; the saddle-horse fell not long after the chain broke; ran a short distance before the wagon upset. Had often seen the dogs before; they came out together; they never molested me before; never fought nor attacked my team. The two horses in front of the saddle-horse, the two middle horses, were two and a half years old; had worked them in the big team a couple of days ; but I have worked them together in a truck-wagon, and with a plough. The middle horses first started to run ; my check-rein was on the leader; the leader never started before; the strange dog did not belong to Weiand.”

*Sidney Sandt*testified substantially as the former witness, in relation to the dogs fighting, the running away and upsetting of the wagon, and the character of Weiand’s injuries. He had never seen the dogs attacking any one before; had often passed defendant’s with a wagon.

*Dr.*deem,, Weiand’s attending physician, testified: “That the injuries he received from the upsetting of the wagon were the cause of his 'death. Weiand was a man of intemperate habits, which made it more difficult for him to rally; he had often seen him intoxicated.”

*Charles Kocher*testified: “In May, 1871, he was in a carriage with two horses, with his family, passing defendant’s house ; the dogs were lying on the ground; they got up to the bars; they ran against them, and made a rattle; they did not jump over. The horses jumped, ran four or five rods, broke the double tree. Defendant came out. Witness told him why the horses ran away. The dogs made no sound except what they made against the bars. Farmers generally allow their dogs to run about. The horses were started at the rattling of the bars.”

*Joseph Applegate*testified: “He had passed defendant’s house in a wagon without top, with his wife and children ; the dogs were out in the road ; one of them jumped at the wagon and the other at the horse, so that the horse stopped; one of them got hold of the little girl’s shawl. They followed till near the top of the hill, three hundred or four hundred yards ; they walked along and growled ; one of them raised himself with his paws on the wagon ; the other barked, and jumped backwards and forwards in front of the horses; he jerked at the shawl, and by jerking got it loose from him, and he got down. He raised himself up only once. Witness shortly afterwards told defendant about this; he laughed about it; said they would not do any harm. Witness told him they would, and that he had better take care of his *247dogs. Said they never did any harm yet; said he would stand all the damage if-they ever did hurt anybody.”

The testimony of the plaintiif’s witnesses was that the deceased was a man of habitual intemperance.

The plaintiff rested.

The defendant proposed to ask a Avitness:

“ From your observation of these dogs, state whether they Avere vicious or mischievous dogs, or quiet and harmless dogs ?”

Also offered to prove that the dogs in question Avere not of a ferocious or mischievous nature, and that they were not used or accustomed to attack, worry, or frighten horses, mares, or geldings, attached or hitched to carriages, carts, wagous, or other conveyances driven and passing along the highAvay near defendant’s house.

On objection by plaintiff both offers were refused, and a bill of exceptions sealed.

A witness said it would not he safe to drive two and a half year colts in a five-horse team without a check-rein or driving rein. Another witness testified as to the same unsafeness as to driving, and said if the horses got frightened the teamster would have no. control of them.

The defendant proposed to ask witness as to the reputation of Weiand in the neighborhood for sobriety.

On objection by the plaintiff' the Court refused the offer, and sealed a bill of exceptions.

Witness said deceased had the appearance of a drinking man for the last thirty years.

There Avas much other testimony that the deceased was an habitually drinking man ; and also as to the danger of driving as the horses were driven when he was hurt.

Defendant offers himself as a Avitness, to prove that no such conversation took place between him and Joseph Applegate, as was testified to by Applegate.

Objected to by plaintiff as incompetent by reason of the death of Jacob Weiand, the husband of the Avidow, Avho Í3 the plaintiff' in this suit, and incompetent generally to testify to any matter which occurred touching the case prior to the death of Jacob Weiand.

The objection was sustained, and bill of exceptions sealed.

The following are points of the defendant with their answers :

1. “A dog is a domestic animal, Avhich the owner may lawfully suffer to go at large; and unless the evidence in this case satisfies the jury that the defendant’s dogs were vicious the plaintiff cannot recover.”

*Answer:*“This point is affirmed, unless the jury also find *248that the defendant had notice that the dogs were vicious, and. was guilty of negligence.”

8. “ If the owner and driver' of the team put into his team horses that by reason of their age and imperfect training were unsafe, he was guilty of negligence and the plaintiff cannot recover.”

4. “ If the jury-believe the evidence shows that the running away of the team was caused by the action of two two-year-old horses in the team, and if they believe that no -prudent man would drive horses of such age in such a team along the highway, the driver was guilty of negligence and the plaintiff cannot recover.”

5. If the jury believe that the driver of the team had no check or driving rein upon two of the horses of the team, which made it unsafe for them so to be driven along the highway, and. that a prudent and careful man would not have done so, the driver was guilty of negligence and the plaintiff cannot recover.”

*Answer:*“ These points as stated are denied. The plaintiff’s husband not being the driver nor tbe owner of the team, it is referred to the jury to say whether from the evidence they believe the plaintiff’s husband to have been guilty of negligence which contributed to the injury, and if they do so believe then the plaintiff cannot recover.”

6. *“*No action lies by the plaintiff against the defendant for damages arising from the death of her husband, caused by injuries received by the overturning of the wagon of David Savitz, which was occasioned by the running away of the horses, in consequence of fright occasioned by the fighting in the highway of the defendant’s dogs with the dog of some other person.”

*Answer: “*This point is affirmed, unless the jury find that the running away of the horses was caused by vicious dogs of the defendant, and he knowing this to be so, was guilty of .negligence in their keeping and custody.”

*7.*“Unless the jury find that the death of the plaintiff’s husband was caused wholly by the negligence of the defendant the plaintiff cannot recover.”

*Answer:*“ If the jury find that the death of the plaintiff’s husband was efficiently caused, produced, or accelerated by, or was the consequence of the wrongful act of the defendant, the plaintiff is entitled to recover.”

The Court charged:

. . . “ To maintain this issue, therefore, the plaintiff'must establish to your satisfaction by the weight of the testimony:

1. “ That Samuel Mann was the owner or custodian of the dogs.

*2492. “ That the clogs were of a mischievous and vicious disposition, having the propensity to attack and worry horses passing on the highway.

3. “ That the defendant had knowledge of this disposition and propensity prior -to the alleged injury. '

4. “ That the defendant was guilty of negligence in the custody and management of the dogs.

5. “ That the death of the plaintiff’s husband was the result of such negligence.....

“ It is incumbent upon the plaintiff to establish all of these allegations to your satisfaction before you can find in her favor. The failure of the plaintiff* to establish the truth of any one of them will necessitate your finding in favor of the defendant. Each is an essential element in the plaintiff’s case, and her inability to satisfy you of the truth thereof is the loss of a link in the chain.....

“ That the dogs belonged to the defendant does not appear to be denied.

“ This brings us to the next inquiry: Were the dogs of a mischievous or vicious disposition, having the propensity to attack and worry horses passing upon the highway ? . . . . A dog is an animal that ordinarily and generally has no natural propensity to attack or bite men or horses. Whenever he has a mischievous or vicious disposition it is exceptional, and must be proved to exist This disposition is evidenced, by the outward acts and conduct of the animal. You have heard the testimony of Charles Kocher and Joseph Applegate. Do you believe their testimony ? If you do, does the testimony of both or either of them satisfy you that the conduct of the dogs on the occasion testified to indicated the disposition alleged ? In the instance narrated by Kocher it seems that the dogs did not even leap the fence. Was the conduct of the dogs on this occasion, Or on the other related by Applegate, simply the ordinary manifestations often made-by such animals upon the passing of a vehicle ? Are you sa.isfied, from the circumstances related, that the dogs manifested, at either of these times, the mischievous or malevolent disposition complained of ?

“This brings us to the next inquiry in the series: Was-this disposition brought to the knowledge or notice of the-defendant prior to the alleged injury ? . . . . No owner is-responsible for mischief or injury done by his animal unless-he had previous notice of its propensities and disposition. This disposition may be evidenced by a single act of a malicious or malevolent character.....

“ Should you determine the last fact in favor of the plaintiff you will be confronted by the next inquiry: Was the de-*250fendant guilty of negligence in the custody and management of the dogs ? In order to arrive at an intelligent conclusion on this point it is necessary that you should know what is understood by negligence in law. There is no absolute rule as to negligence applicable to all cases.- The affairs of men are so complex and multifarious,"that what would be negligence under one set of circumstances would be proper caution under another. *We*are told by the authorities that duties grow out of circumstances,and that which in one case would be an ordinary and proper use of one’s right may, by a change of circumstances, become negligence. Culpable negligence has been defined as the omission to do something which a reasonable,prudent,and honest man would do; or the doing of something which such a man would not do under all the circumstances surrounding the particular case. It is the absence of such care as men of reasonable and ordinary prudence would exercise under the circumstances. These definitions should guide you in your present inquiry, and it is your duty to say whether the defendant was guilty of negligence under the facts proven in this case.

“ Let me, however, call your attention to a matter of vital consequence at this stage of the inquiry. The defendant claims that the deceased was guilty of negligence on his part. If the deceased was guilty of concurrent negligence, however slight, the plaintiff must fail in her action; and the •same definitions of negligence, already just announced, are applicable here. The law does not consider the degree or amount of negligence attributable to each party, even if it were possible in all cases to refine to such an extent as to be able to calculate and weigh the difference in this respect between them, and to decide on which side the preponderance ■of blame lies, but if any negligence of the plaintiff’s husband •co-operated with negligence of the defendant, however great, that wall be an end of the case, and the verdict must be for the defendant. It is not the duty of the plaintiff, however, to show the absence of such concurrent negligence on the part of the deceased, but the burden is upon the defendant to show its existence. (It is not enough that the defendant ¡should prove negligence on the part of the owner and driver • of the team in this ease. The negligence of the owner, if there was negligence on his part, is not necessarily the negligence of the deceased. The latter was a passenger at the time, and the plaintiff is only affected by the negligence .-dire'ctly imputable to-the deceased.) ....

“ Was the accident the consequence of the mischievous .propensity of the dogs operating through the negligence of ■ the defendant ? If, through the defendant’s negligence, the *251dogs attacked the horses of the wagon in which the deceased was riding, and in consequence thereof they ran away and the deceased was thrown from the wagon, and died from the injuries thus received, the defendant would be responsible. The defendant is liable for the natural and proximate consequences of his default or neglect......It has been contended, by the defendant’s counsel, that the death was the result of other causes, that there was a previous disease, weakness, or debility, resulting'from excess in drink, which caused the death ; and that it was not wholly produced by the injuries received through the upsetting of the wagon. We say to you that even if disease or other cause, capable of producing death if left to its own operations, existed, and death was caused or accelerated by the injury, the defendant would still be liable. If injury had been inflicted or caused sufficient to produce death, and subsequently by some other injury or malpractice death was occasioned, before the final and complete operation of the first injury, the case would be altered, and the defendant would not be responsible for the death, whatever might be his responsibility for the injury itself. But if that injury awakened the dormant energies of a pre-existing disease, thereby producing death, the defendant is not relieved from liability therefor.....”

The verdict was for the plaintiff for $200.

The defendant sued out a writ of error. He assigned for error:

1-4. The rulings of the court on the questions of evidence.

5-10. The answers of the court to the foregoing points of the defendant.

11. The part of the charge in brackets.

*F. J. Fox,*for plaintiff in error.

The owner of an animal is not liable for its acts except on the ground of negligence, actual or presumed: Shearman & Redfield on Negligence, section 185. Where the animals are, as a species, harmless and domesticated, such as dogs, etc., he is not liable for injuries by them unless he had notice of their -inclination to commit such injuries: Id., section 188 ; Fairchild *v.*Bertley, 30 Barb., 147 ; Steele *v.*Smith, 3 E. D. Smith, 321; Henckley *v.*Emerson, 4 Cow., 351 ; Hartley *v.*Harrimor, 1 B. & Ald., 620 ; Fleeming *v.*Orr, 29 Eng., L. & E., 16.

As to rejection of as a witness under act of April 15th, 1869, section 1, Pamph L., 30, 1 Br. Purdon, 624, pi. 16, Weiand was not the assignor of the thiug in action; she sued in her own right, act of April 15th, 1851, *supra ;*her right was original and exclusive.

*252The evidence showed that the driver of the team was güilty of negligence-in having unbroken colts in his team without driving-reins; there was, therefore, contributory negligence: Railroads. Norton, 12 Harris, 465; McCully *v.*Clark, 4 Wright, 406 ; Penna. Can. Co. *v.*Bentley, 16 P. F. Smith, 34; Wharton on Negligence, section 300. The deceased saw and knew the circumstances of the team, and he himself was chargeable with contributory negligence. The unskilfulness was such as to unfit for ordinary driving: Wharton on Negligence, section 404. Weiand having intrusted himself to Savitz’s care, he alone was liable to Weiand for the injury : Moore *v.*Central R. R., 4 Zabriskie, 268; Wonte *v.*N. E. R. R., 1 Ellis, B. & E., 719. The fighting of the dogs was the remote, not the proximate cause of the injury: Wharton on Negligence, Preface, p. 7, sections 78, 79, 323, 130, 131 ; Greenland *v.*Chaplin, 5 Exch., 248; Shearman & Redfield on Negligence, sections 25, 33, 34; Pennsylvania R.R. *v.*Kerr, 12 P. F. Smith, 366. The owner of a dog is not liable unless for injuries to the person and property of another by the aggressive act of the dog himself: Goodman *v.*Gay, 3 Harris, 193; Dolph *v.*Ferris, 7 W. & S., 369.

*C. M. Anstett,*for defendant in error,

cited: As to the evidence of the dog’s general good behavior': Buckley *v.*Leonard, 4 Denio, 500 ; Kittredge *v.*Elliot, 16 N. H., 77; Arnold *v.*Norton, 25 Conn., 92. A single instance of a dog biting a person with the knowledge of the owner is sufficient to justify a verdict for the plaintiff: Smith *v.*Pelah, 2 Strange, 1264; Shearman & Redfield on Negligence, sections 190,191.

As to the competency of defendant as a- -witness : Karns *v.*Tanner, 16 P. F. Smith, 297.

Weiand was not responsible for Savitz’s negligence: Yeoman *v.*Padden, 1 Mich., 127; Turnpike *v.*Stewart, 2 Mich., 714; 1 Smith’s Lead. C., 366 ; Chapman *v.*New Haven R.R., 19 N. Y. (5 Smith, 341); Riddle *v.*Proprietors of Lock, 7 Mass., 169; Hunt *v.*Pownell, 9 Vermont, 411; Harrison *v.*Buckley, 1 Strobhart, 525 ; Overington *v.*Bunn, 1 Miles, 39; Lind *v.*Zingsboro, 11 Cush , 553 ; McGrew *v.*Stone, 3 P. F. Smith, 436.

When the injury is from the exclusive negligence of one party he cannot relieve himself from liability by calling it an accident, *causa próxima non remota spectatur:*Scott *v.*Hunter, 10 Wright, 192; Bickenson *v.*Boyle, 17 Pickering, 78 ; Pittsburgh *v.*Grier, 10 Harris, 54.

Mr. Justice Mercur,

delivered the opinion of the Court, January 2d, 1876.

*253This action'was brought by the widow of Jacob Weiand, under the nineteenth section of the act of 15th of April, 1851: Purdon’s Digest, 1093, pi. 2. It declares: “ Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or, if there be no widow, the personal representatives, may maintain an action for and recover damages for the death, thus occasioned.”

The first, second,fifth, and ninth assignments maybe eónsidered together.

. The plaintiff in error was charged with wrongfully and negligently keeping dogs of a ferocious and mischievous nature. It was averred that he knew they were used and accustomed to attack, worry, and frighten horses as they were driven on the public highway, near his dwelling-house; and. by the dogs’ repetition of such an act the injui-y complained of was caused.

To fasten a liability on him it was necessary to establish the vicious character of his dogs, and his previous knowledge of that character. To prove the former, the defendant in error gave evidence of the conduct of the dogs on two occasions. At one time, as a team was passing along on the public highway the dogs, without leaving the inclosure of their master, jumped against the bars of the fence at the roadside with such force and violence, and rattled them to such an extent as to frighten the horses, thereby causing them to spring, break the doubletree, and run for several rods. The other act was of a more vicious character. As a team was passing the premises of the plaintiff in error his dogs ran out into the road; one of them barked and jumped ahead of the horse so as to stop it; the other raised himself up, put his paws on the wagon, barked and growled, and seized the shawl of a small girl who sat on the back seat; on its being jerked loose from him he got down, but both dogs, growling, followed the team some three or four hundred rods. There was evidence that the plaintiff in error had notice, before the injury in this ease, of the conduct of the dogs on both those occasions.

Were these facts sufficient to submit to the jury to find the dogs to be vicious and accustomed to attack and frighten hordes? In Smith *v.*Pelah, 2 Strange, 1264, it was said .by Lee, C. J.: “ If a dog has Once bit a man, and the owner, having notice thereof, keeps the dog and lets him go about, or lie at his door, an action will lie against him at the suit of a person who is bit, though it happened by such person’s treading on the dog’s toes, for it was owing to his not hang*254ing the dog on the first notice, and the safety of the king’s subjects ought not afterwards to be endangered.” So in Arnold *v.*Norton, 25 Conn., 92, it was held that full and satisfactory proof of a single instance in which the dog had previously bitten a human being, and of the owner’s knowledge thdreof, was sufficient, but that the force of such testimony would depend much on the surrounding circumstances.

In Kittredge *v.*Elliott, 16 N. H., 77, evidence of notice of one attack by a dog was held sufficient to charge the owner with all its subsequent acts. In Loomis *v.*Terry, 17 Wend., 496, one instance seems to have been considered sufficient. One attempt of a bull to gore was held sufficient in Cockerham *v.*Nixon, 11 Iredell, 269.

We think one instancé may show such unmistakable evidence of a vicious propensity as to make the owner of the dog, with notice, liable for any subsequent act of a similar character. The *gist*of the action for the subsequent misconduct of the dog, is for keeping it after knowledge of its vicious propensity: May *v.*Burdett, 9 Q. B., 101; Wheeler *v.*Brant, 23 Barb., 324. It thereupon becomes the duty of the owner so to keep his dog as to guard against a repetition of similar misconduct. ELe is bound to secure it at all events, and is liable to parties afterwards injured if the mode he has adopted to secure it proves insufficient: Wood on Nuisance, section 763 ; Jones *v.*Perry, 2 Esp., 482; Mason *v.*Keeling, 12 Mod., 332. The principle on which this rule rests was held in Mann *v.*Reed, 4 Allen, 431, to be, that a ferocious animal, liable to do injury to men or property, is a nuisance, and that keeping it after notice of. such liability is so wrongful, that the owner is chargeable for any neglect to keep it with such care that it cannot do any damage to a person who without any essential fault is injured-thereby.

The same rule applies with reference to injuries from vicious dogs as in reference to other nuisances: Wood on Nuisances, section 766 ; Fish *v.*Sheet, 21 Barb., 333 ; Hughes *v.*McNamara, 106 Mass., 281 ; Marsh *v.*Jones, 21 Vt., 378. Hence the keeping of a vicious dog near a public highwmy, endangering the safety of persons passing thereon, is a nuisance, operating as an obstruction, and renders the person knowingly keeping it there liable to indictment, and also liable to an action in favor of any person injured thereby : Granger *v.*Findley, 7 Irish C. L. Rep., 417; Wood on Nuisance, section 768.

it is said in section 803, Id., knowledge of the owner that his dog had attacked animals of one class, is not evidence from which' knowledge may be inferred that it would attack animals of another- class, nor that it would attack mankind. *255But iu Shearman & Kedfield on Negligence, the rule is declared to be: “ It is not necessary that the acts of aggression -brought to the notice of the owner should be precisely similar to that on which the action against him is founded, but they should indicate a disposition to commit injuries substantially like those which form the basis of the cause of action.” This is believed to be the true rule in its application to domestic animals.

The defendant in error having proved the fact that the dogs had worried and frightened passing horses, from which a propensity so to do might be inferred, is it admissible fov the owner of the dogs to prove their good behavior at other times, or their general good conduct, to defeat the action ? It certainly would not controvert the particular acts proved. If one or two known instances of vicious conduct be sufficient to make the owner liable, it is no answer to prove the. general conduct of the dogs was otherwise. The effect of such testimony would be to relieve the^ owner of the dog' from the effect of certain facts which he did know, by the evidence of other witnesses who were ignorant of those facts. The opinion of his neighbors that his dogs were generally quiet and harmless, cannot relieve him from a liability created by his own knowledge of the ' other facts. The very question arose in Buckley *v.*Leonard, 4 Denio, 500. The owner of a dog which had bitten other persons, had notice of the fact, and had suffered him to be at large, and he bit the plaintiff. It was held to be no answer to the action for the injury to- the plaintiff, that the dog was generally inoffensive, and that such evidence ought not to be received.

While the general good conduct of the dogs cannot defeat the action established by evidence of the commission of the two vicious acts, and notice thereof to the owner ; yet if there be a conflict of testimony in regard to those acts, the. general conduct and habits of the dogs may be considered in determining the credit to be given to the witnesses.

The fact that the dogs of the defendant were fighting near the horses’ legs with a strange dog cannot defeat the right of action, if the running away of the horses was caused by his own vicious dogs. The injury was of the same general character of those which they had previously committed,, but the -manner of effecting it was a little different.

The offer covered by the third assignment was not to-’prove that the reputation of Weiand for sobriety was bad. It w*as merely an offer to show what it was for sobriety,, without any averment.whether it was good or bad. As the-plaintiff in error could not be injured by the rejection of the¡ *256testimony unless he could have proved it to be bad, he is not shown to have sustained any injury by its rejection. But it further appears that he suffered no injury thereby, lie afterwards gave much evidence showing the intemperate habits of Weiand, and this fact was not controverted.

The sixth, seventh, eighth, tenth, and eleventh assignments, impute to the husband of the defendant in error, the negligent acts of the driver of the team. But the husband had no control or authority over the driver, nor did the di’iver control the personal conduct of the husband. He therefore was not liable for the negligent conduct of the driver : Eaton *v.*Boston & Lowell R. R. Co., 11 Allen, 500 ; Shearman & Redfield on Negligence, section 46. Nor is it any defence to the action that the injury was caused by the joint negligence of the driver and the plaintiff in error. If Weiand was guilty of no negligence on his park, the learned judge was correct in charging that the defendant in error was entitled to recover “ if the death of her husband was efficiently caused, produced or accelerated by, or was in consequence of, the wrongful act” of the plaintiff in error. Negligence, in a general sense, by the driver, would not protect the plaintiff in error for liability for a direct and proximate injury caused by his own negligence: Webster *v.*Hudson River R. R. Co., 38 N. Y., 260 ; Knapp *v.*Dagg, 18 How. Prac. Rep., 186 ; Lockhart *v.*Lichtenthaler, 10 Wright, 151.

The fourth assignment relates to the competency of the plaintiff in error to testify. That question is answered by the first section of the act of April 15th, 1869, P. L., 30. It declares “ no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding provided (inter alia), “ this act shall not apply tO‘ actions by or against executors, administrators, or guardians, nor where the assignor of the thing or contract in action may be dead, excepting in issues and inquiries *devisavit vel*non, and others respecting the right of such deceased owner, between parties claiming such right by devolution on the death of such owner.”

This action is not by or against an executor, administrator, or guardian *;*nor is the assignor of the thing in action dead. There is no assignment, either actually or constructively. ] f an action had been brought by Weia-nd to recover damages for injuries he had sustained, it would have survived to his personal representatives under the eighteenth section of the act of April, 1851, *supra;*and after his death the plaintiff in error would not have been competent to testify to matters which occurred during the life of Weiand. This *257action, however, was not brought by him, nor is itfor the recovery of damages for injuries he sustained ; but it is for injuries his wife sustained by his death. It is for a .cause of action her husband never had. It arose on and after his death, and accrued to his widow. Jn case of injury causing death, the first section of the act of April 26th, 1855, Pur. Dig., 1094, pl. 3, withholds the right of action from the personal representatives of the decedent, and gives it only to the husband, widow, children, or parents of the deceased. The present right of action never existed in favor of Weiand, nor during his life did it exist against the plaintiff in error. When the law created this right of action against the plaintiffin error, it gave it to the defendant in error. It is true the death of her husband was an act precedent to her right, of action; but so was the negligence of the plaintiff in error. The two united enacted the cause of action and gave it to the widow. It had no existence prior to that time. It originated between two living persons. Each is now a party to this action. The learned judge therefore erred in not permitting the plaintiff in error to testify, and thejudgment must be reversed.

Judgment reversed and a *venire facias de novo*awarded.