Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-01-15
cornT oF oouNox rLEAs. NEw


COURT OF CONHOx PLEAS: SEw
YORK CITY.
Befo-e Presiding Judge DAILY and Judges Brady
/ ard Van Worst.
/ Caution to OWRers Of Various 4aimals-
They are Responsible JOT Damages
Done By their Beasts
Charles Honey, PiaintiGaud Respondent, VS..
Warren Ward, DESCENDANT and Appellant.
Z The defendant in this action owned a
] horse which was accustomed to bite.
! He knew OF the vicious propensity OF the
/ animal, and to guard against it usually
/ kept him muzzled. One day ia October,
/ 1866. the horse was standing on the side-
/ walk in Twelfth street, before defendants
! wa2ou, which wts backed up to defend
ants lumber yard The horse was not
/ mUgzled at the time. He had been fed
short time before and the muZZle had
( been removed to feed and water him,
( after which the horse was led by the
I person who had him in charge to the
wagon and hitched to it. The defend
ants servant was then about to go to
stable for the muEzle to put on the horse
at this time the plaintiff returning from
his dinner came along the sidewalk aud
stepped from the walk into the street TO
tass the horse, Tut as he was in
the horse's head, he was caught and Bit
ten 10 the shoulder by the animal The
plaintiff had known the horse for two or
three years, and knew that lie was aecus-
toned TO bite The defendants servant
saw plaintiff approaching, and called
out to him, by way OF warning.
Plaintiff did not hear ihe call until he
was at the horses head, aud as he turned
toward the person calling, be was bitten.
Plaintiff knew that the defendant kept
the horse muzz,ed, but did not notice |
that the mUZZie was of until he was
seized aud bitten, The plaintiff says /
when he was bitten, the defendants ser |
want was engaged In loading the wagon. |
The plaintiff was laid up and prevented |
from working for two weeks from this |
injury, aud incurred medical expenses |
incident 10 his cure. To recover |
dsnsges for the injury, plaintiff |
brought au action ia the Third Judi
cial District Court of the City |
of New York. The Justice rendered q
judgment ia favor Of the plaintiff for $50
damagts. $. besides costs, from which judg-
ncnt this appeal was taken 10 the Gen
eiai Term OF this Court John f. Par
sons for appellant; w. c. Carpenter for
respondent.
VAN VORsT, IA person who keeps
G0mrst tic animal which has, TO his
knowledge, q vicious propensity, is liable
in damages for the injuries committed
by it ia the indulgence Cf its evil dispO
-iliGn. The action rests upon the negli-
geuCe Of the owner in keeping sn ami
mai which il so likely 10 prove injuri
ous and hurtful The scieRtW is the gist
Of theection. In Coggsweli vs. Baldwin,
IS Vermont r., 40i, it was decided that
D. ns Of O nj ~ m
hogk-the vicious propensity being
known TO the owneT-is liahle for dam
ages done by her although it be done in
The highway, against the land of the
owner, and while going TO her usual
watering place. In that case, the owner
1f the COW, knowing Of her propensity,
lsd caused buttons TO be put OR her
gOrUs as q preventive. But the COW
hooked the plaintiffs horse, in the
-cad, 80 that of the wouId d made
he died, and the plaintiff had
/. verdict. In the case before this .
Court il appears that the defendant knew
hat his hose hsd a habit OF biting, and
@ guard against il lie kept him muzzled.
6 the time the injury was sustained by
he plaintiff tie horse was standing or |
he sidewalk unmuzzIed. This was neg
igeUca. Tue horse should not have been
5uE.ic steel any length cf time. He
h0uld have been Immediately muZZied
.iJer Icing fsi and wateIei, and before
,e was hitC1ed % ;he wagon. Bnt IL is
.iaimed that the plaintiff himself wGs
and therefore should not be
.Ilawed 70 recover. II is sn unyiclding ]
uls that a plaintiff proseo uting for the :
negligence OF smother, should himsalf be ]
without any misconduct or iaulr, and &
mould have used ordinary care. An &C :
ion cannot / e maintained when an in
ufy has resulted from the negligence of
iOih parties. i is the duty OF every
leTsOn 10 take care Of his own safety. Fox {
's. the town Of Glastonbury, % Conn. l04 {
And in case OF Coegsv ell. VS. Baldwin .
hove cited, it was held that if the Injury
o Pls!utiiPs horse was OccasiOned by his /
'wn negligence, the plaintiff would not !
be entitled 10 recover. But see nothing
n this case which should charge the '
].aiHjiG with any want Of ordinary care, Z
" impiicste him in any negligence. a
Plaintiff was where he had a right to be,
isssing on the sidewalk. II Is true he d
Knew The vicious propensity Of the horse,
Jut he also knew that The defendant kept
Iim mUZZ,ed, He came suddenly on the Q
animal, and instantly turned from the +
walk TO pass him. He had a right to I
presume that the horse standing there
vas muzzied. In fact be did rot see the :
iorse until he came up to him and was J
litten in the act Of passing. He was in .
10 attitude to the animal from which Il
my negligence could be imputed to him. q
Ie did not court the danger, or rashly 5
xPsse himself to Injury. In Smith vs.
'elsh, y Strange, 1861, the Chief Jus
ice ruled that If dog hss once bit
nan, and the owner, having notice
hereof, keeps the dog, and lets him go l
bout or lie at his door, an action will lie l
gsinst him at the suit Of q person who
j bit, though it happened By such person -.
reading on the dogs toe"