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CHAPTER VIII.

INDIRECT TRESPASS.

SECTION 40. FORMS OF INDIRECT TRESPASS.

Not only is a person liable for those injuries which he personally commits, but, under certain conditions, he may also be liable for injuries inflicted by agencies or instrumentalities under his control. The three important classes of such agencies or instrumentalities are (1) human agents; (2) animals; (3) inanimate dangerous agents, such as fire, explosives, and artificial accumulations of water. The first of these has been already considered under the subject of Agency;' the two latter will be taken up in the present chapter. SECTION 41. HISTORY OF THE DOCTRINE OF LIABILITY FOR INJURIES BY ANIMALS OR INANIMATE

OBJECTS. There are few more striking curiosities in early English law (and in this respect we find nearly all primitive legal systems closely resembling each other) than the view taken as to the liability for injuries caused by animals or inanimate things belonging to some individual. In early times the principle is that the responsibility falls upon the particular object that causes the injury. If the property, either animate or inanimate, of a man, causes injury to another, such property itself, and not the owner thereof is liable for the injury. Damages cannot be recovered from the owner, but the thing causing the injury must be sur• See Street's Foundations of Legal Volume III, Subject 7.

Liability, Vol. 1, p. 49.

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rendered. To such property the name "deodands" was given. The final disposition of deodands differed in different epochs of legal history; at one period they were given to the kinsman of the party who has been killed, by way of compensation, or wer, at another they were generally devoted to pious uses for the benefit of the soul of the deceased; at a later period they became the property of the crown. Deodands, while never recognized in this country, were only abolished in England by statute of 9 & 10 Victoria. As late as 1842 a railway engine which had run over a man was declared forfeited as a deodand.

At the present time it is a well settled doctrine that a man may be liable for damages resulting from personal property owned by him or under his control.

SECTION 42. INJURIES BY WILD ANIMALS.

While it is not illegal to keep wild animals, nevertheless, on account of the danger inherent in such animals, the owner is obliged to use the greatest care in their custody, and is liable for any injury which they may cause. It is not necessary that the owner should have had particular notice of the dangerous character of such animals, such notice being conclusively presumed from the general character of the species to which the animal belongs. Thus, in an action to recover damages for personal injuries, sustained by plaintiff from an elephant which was exhibited by defendants, the jury found that the defendants : For a full discussion of the Sub- • Decker vs. Gannon, 44 Me., 322; ject of deodands, see Holmes'

69 Am. Dec., 99; Muller vs. The Common Law, p. 7, et seq.

McKesson, 73 N. Y., 195; • 2 Pollock and Maitland's History 29 Am. Rep., 123.

of the English Law (2nd ed.), . Keeman vs. Gutta Percha, etc., 473, 1 Blackstone's Commen

Mfg. Co., 46 Hun. (N. Y.), 544; taries 300; Street's Foundations

Mass. vs. Partridge, 9 Ill., of Legal Liability, Volume I, p.

App. 490.

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did not know the elephant to be dangerous. It
was held, however, that defendants were liable, as the
animal belonged to a class which, according to the
experience of mankind, is dangerous to man, and there-
fore 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.?
SECTION 43. INJURIES BY DOMESTIC ANIMALS.

In the case of domestic animals the rule is materially different; domestic animals are not ordinarily dangerous, and knowledge of the dangerous propensities of such animals has to be brought home to the owner, before he can be held liable for injury which the animal may cause. In Klenberg vs. Russell, this question is fully discussed in the following language: "It is the duty of the owner of domestic animals to fence them in, where they are such as can be fenced against, and not the duty of his neighbors to fence them out; but it does not necessarily follow that the owner of domestic animals suffered to run at large or to trespass upon the lands of others are thereby rendered responsible for all injurious acts committed by such animals while away from the premises of the owner. In Fletcher vs. Rylands, an English case, found in Thompson on the Law of negligence, beginning on page 2 (but see page 26), it is said: “The law, as to them (speaking of cattle), seems to be perfectly settled from early times. The owner must keep them in at his peril or he will be answerable for the natural consequences of their escape, that is, with regard to

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Filfurn vs. People's Palace, etc.,

Co., 25 A. B. D., 258. • Reed vs. Southern Express Co.,

95 Ga., 108; 22 S. E., 133;

Mareau vs. Vanatta, 88 III.,
132; Murray vs. Young, 12

Bush. (Ky.), 357.
• 125 Ind. 531; 25 N. E., 596.

tame beasts, for the grass they eat and trample upon, though not for any injury to the person of others, for our ancestors have settled that it is not the general nature of horses to kick or bulls to gore.' And all of the authorities seem to agree that the owner of a domestic animal is not liable because of a negligent failure to keep it confined on his own premises, except for the consequences which may be anticipated because of its well-known disposition and habits, unless it is possessed of a vicious disposition of which he has notice. In Losee vs. Buckanan, 51 N. Y., 476 (but see Thompson on the Law of Negligence, at page 52), it is said: “As to the former (speaking of domestic animals), the owner is not responsible for such injuries as they are not accustomed to do by the exercise of vicious propensities which they do not usually have, unless it can be shown that he had knowledge of the vicious habit and propensity. As to all animals, the owner can usually restrain and keep them under control; -and if he will keep them, he must do so. If he does not, he is responsible for any damage which their well-known disposition leads them to commit. I believe the liability to be based upon the fault which the law attributes to him; and no further actual negligence need be proved than the fact that they are at large unrestrained. We believe the foregoing to be a correct statement of the law in such cases. Earl vs. Van Alstine, 8 Barb., 630; Van Leuven vs. Lyke, 1 N. Y., 515; Vrooman vs. Lawyer, 13 Johns, 339; Thomp., Neg. S., 15; p. 201; Id. Sec. 26, p. 209; Durham vs. Musselman, 2 Blackf. 96; Thomp. vs. Nev., p. 389, Sec. 10; Sinram vs. Railway Co., 28 Ind., 244; Smith vs. Causey, 22 Ala., 468; Wormley vs. Gregg, 65 Ill., 251; Dearth vs. Baker, 22 Wis., 73. In Shera

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