Argued October 18, 1889
Decided November 26, 1889
William Parken for appellants. Charles J. Patterson for respondent.
It is not lawful for any cow to run at large in any street or public place in this state (Laws of 1872, chap. 776), and it was assumed by the parties that the original complaint stated a good cause of action by alleging that on the 1st of April, 1885, a cow, owned by the defendants, was carelessly permitted to run at large and unrestrained upon a public highway in the city of Brooklyn, and being so at large, knocked down and injured the plaintiff. But these circumstances were explained by evidence. It was made to appear that the defendants Wheeler had agreed to sell and deliver the cow to the other defendant Farrell, and in pursuance of their engagement one Matt Finnan, a person long accustomed to that kind of business, was employed to lead the cow to the purchaser. For that purpose he put a suitable rope around her horns, and with that in his hand started for Mrs. Farrell's. Before reaching Farrell's place, however, two dogs violently seized upon and frightened the cow. She kicked and knocked down Finnan, pulled away from him and ran off. While thus at large, and beyond his control, she inflicted the injury complained of. This answered the complaint. But the plaintiff was permitted to amend by adding that "the cow was, to the defendants' knowledge, unruly and vicious, and with this knowledge they negligently permitted her to be led and driven by their servant through the streets, where she was allowed to escape from control." The plaintiff, however, failed to establish that the cow had ever before done mischief similar to that complained of, or of any kind, or that she was by habit or nature of an ungovernable temper, or if from her present conduct that could be inferred, no evidence was given that the defendants had knowledge or notice that she was unruly or had done similar acts.
In the absence of that proof, the defendants cannot be held liable. ( Van Leuven v. Lyke, 1 N.Y. 515.) In such an action for injury done to the person by domestic animals, the owner must be shown to have had notice of their viciousness before he can be charged, or that he failed to use in their management the reasonable care which a man of ordinary prudence might be expected to exercise under like circumstances. The plaintiff's case presented both alternatives, but in respect to each the proof failed.
It is not necessary to consider the other points made by the appellant; the one discussed sustains the appeal, and upon another trial the other questions may not arise.
The complaint should have been dismissed for failure of proof, and because it was not, the judgment in favor of the plaintiff is reversed and a new trial granted, with costs to abide the event.