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man vs. Redfield on the Law of Negligence (section 629), it is said: “But the owners of creatures which as a species, are harmless and domesticated, and are kept for convenience or use, such as dogs, cattle, horses, and even bees, are not liable for injuries willfully committed by them, unless he is proved to have had notice of the inclination of the particular animals complained of to commit such injuries. If, having had such notice, he neglects to keep them confined where no one can suffer from them while using ordinary care, he is liable for all injuries committed by them. And the owner, even of a wild beast, is not liable for injuries caused by it in a manner which no acquaintance with its nature would have led him to expect, except upon similar evidence of notice.' As the complaint fails to allege that the cow had an evil disposition, such as would lead her to attack human beings, necessarily there is no charge that the appellant had notice of any such evil disposition; and as the willful conduct of the animal in attacking the appellee was not such as the appellant had a right to expect or might anticipate, he is not responsible for the injury caused by such unexpected and willful conduct."

There is no general propensity on the part of horses to bite persons who come near them, and, if done at all, it is done by one that is exceptionally vicious. No such disposition having been discovered in a horse, the owner is under no obligation to anticipate that it will suddenly bite a passer-by, and is not bound to guard against such an occurrence; and if the horse bites somebody, and is not wrongfully in the place where this happens, the owner will not be held liable for the injury.10 Servants put in charge of a bull to

10 Reed vs. Southern Express Co.,

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

Am. St. Rep., 62.

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drive him to a certain place, who, on the way, learn that he is vicious, render the owner liable to one thereafter injured by him on the trip, by continuing to drive him without taking precautions against accidents." The owner of bees is not liable for any accidental injury they may do."

Under the common law, the rule as to the liability for damages by dogs was the same as that for injury by any other domestic animal.13 But this rule has been changed by statute in many jurisdictions, and the owners of dogs declared liable for damage done by these animals regardless of the knowledge by the owners of the vicious character of the dog."

These statutes have been upheld by the courts, it being held that dogs are properly subjected to special and peculiar regulations, for the purpose of repressing the mischief likely to be done by them to more valuable property and to persons. In Briscoe vs. Alfrey, 16 the Court said: "The status of the dog before the law is sui generis.

“The vicious dog, in general, and the odious sheepkiller in particular, are under the laws' special condemnation. Without entering upon a discussion of the reasons therefor, it suffices to say that no legislation or decision with reference to injuries by dogs do we regard as analogous to that of the other purely domestic animals of the kind enumerated in our statute.''17 11 Clowdis vs. Fresno Flume, etc.,

81 Am. Dec., 175; Presey vs. Co., 118 Col., 315; So. Pac.,

Wirth, 3 Allen (Mass.), 191;

Newton vs. Gordon, 72 Mich., 19 Earl vs. Van Alstine, 8 Barb.

642; 40 N. W., 921, (N. Y.), 630.

18 Van Horn vs. People, 46 Mich., 18 Mareau vs. Vanatta, 88 II., 132;

183; 9N. W., 246; 41 Am. Goode vs. Martin, 57 Md., 606;

Rep., 159. Cuney vs. Campbell, 76 Minn, 16 61 Ark., 196, 199; 32 S. W., 505. 59; 78 N. W., 878; Kittredge 17 The statutes of the several States vs. Elliott, 16 N. H., 77; Am. St., 717.

liability of owners or keepers of Woolf vs. Chalker, 31 Conn., 121;

dogs.

373.

should be consulted as to the 18 Statute 6 Anne, C. E. This

SECTION 44. INJURIES BY INANIMATE OBJECTS.

A person may become liable in trespass for injuries caused by inanimate objects or elements, owned or controlled by him. The classes of cases falling under this species of trespass are very diverse in their nature, the more important classes will be briefly considered.

The first inanimate agent damage by which, a man was held responsible for, was fire. At common law a man was responsible for all losses occasioned even by accidental firés under his control, but liability in such cases was abolished by statute.18 At the present time, damages for injury by fire, can only be recovered on the proof of negligence. Actions of this character are most frequently brought against railway companies for damages for fires caused by sparks from engines. To recover in such cases, negligence on the part of the company must be proved; mere proof that the fire was caused by sparks from the engine is not suffi

cient.1

Explosives are naturally dangerous, and the person owning them, must take proper precautions to prevent any damage therefrom. Where such explosives are kept in such a manner as to constitute a nuisance, the owner is absolutely liable for all damage they may occasion.20 Carelessness in the keeping of firearms will also render the owner liable, even although he had no direct part in the acts which occasioned the damage. 21

A person owning or handling poisonous drugs is liable for injuries which they occasion through his carelessness. Thus a person who labels belladona, "extract of dandelion” is liable to any person injured thereby.22

statute has either been reenacted in the several American States or is declared to be effective as a part of our common law.

19 Luman vs. Bastor, etc., R. Co.,

4 Cush. (Mass.), 288. 20 Hazard Powder Co. vs. Volger

(C. C. A.), 58, Fed. Rep., 152. 21 Dixon vs. Bell, 5 M. & S., 198.

Dangerous accumulations of water on a person's property may also render the owner of the property liable in tort.23 Negligence, however, is a necessary element in such liability, if the loss is occasioned by what is known as an act of God, vis major or the plaintiff's own fault there can be no recovery."

Inanimate agents not dangerous per se, may cause damage, through the negligence of their owner. Thus, in the case of Illidge vs. Goodwin, 25 the defendant's cart and horse were left standing in the street without anyone to attend them; a passer-by tapped the horse with a whip, whereupon it backed the cart against the plaintiff's window and did damage. The owner of the cart and horse was held responsible, the court saying: "If a man chooses to leave a cart standing in the street, he must take the risk of any mischief that may be done."

* Thomas vs. Winchester, 6 N. Y.,

409. 23 Rylands vs. Fletcher, 3 H. & C.,

774; Gorham vs. Grass, 125

Mass. * Nichols vs. Marsland, 2 Ex. D., 1;

L. R., 10; Ex. 255. 25 5 C. & B. 190; 24 E. C. L., 272;

see statement of this case in Street's Foundations of Legal Liability, Volume I, p. 66.

CHAPTER IX.

WASTE AND NUISANCE.

SECTION 45. TRESPASS, WASTE AND NUISANCE.

Trespass,' waste and nuisance, are alike injuries to real property. There are, however, sharply defined distinctions between the three forms of wrongs. Where a person, not in possession of property, damages such property, the wrong is a “trespass;" if the wrongdoer is in possession of the property, the damage becomes "waste;" if the action which causes the injury takes place off of the property injured, it is a "nuisance."

SECTION 46. REMEDIES FOR WASTE.

In the early period of the common law, the remedy for waste was by a writ of waste. This was a real action and, the plaintiff, if successful, recovered the premises wasted and treble damages for the injury. The writ of waste is now obsolete in England and in nearly all of the States of this country. The present remedy for damages caused by waste is by an action of trespass on the case. The party injured may also, under proper circumstances, secure an injunction against the party committing the waste.

SECTION 47. DEFINITION OF WASTE.

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Waste is any permanent or lasting injury done or permitted to be done, by the holder of the particular The word "trespass” bere being

still be found to be based upon used in its restricted meaning.

those under the old form of Coke on Littleton, 530.

action. • Although this form of action has • See Injunctions under Equity

been abolished, in Code States, Jurisprudence, Vol. VII, Subthe elements of liability will

ject 20.

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