1. This was an action against the proprietor of a park to
recover for injuries sustained by A. from an attack by a male deer
which, with other deer, was permitted to roam in the park, and
which the declaration charged that the defendant knew to be
dangerous. At the trial, evidence was introduced to show that the
park was open and accessible to visitors; that A. was in the habit
of visiting it, and when lawfully there was attacked by the deer
and severely injured; that she had often seen deer -- about nine in
number, three of whom were bucks, the oldest four years old --
running about on the lawn, and persons playing with them, and that
she had there seen the sign, "Beware of the buck;" that the park
contained about eleven acres; that notices were put up in the park
a year or two before, cautioning visitors not to tease or worry the
deer; that she had no knowledge or belief, prior to the attack
Page 99 U. S. 646
upon her, that the deer were dangerous, if not disturbed.
Experts testified that in their opinion the male deer, at the
season when the injury was sustained by A., was a dangerous animal.
The bill of exceptions does not show that all the evidence for A.
is set forth in it, or that the defendant introduced any.
Held that a motion to dismiss the action, nonsuit the
plaintiff, and to direct the jury to return a verdict for the
defendant was properly denied.
2. The court called attention to the testimony of the experts,
and instructed the jury that it was for them to determine its
weight.
Held that the instruction was proper.
3. The jury were also instructed not to believe any extravagant
statement of the injuries received by the plaintiff, and that when
they had made up their minds as to the amount really sustained,
they should not be nice in the award of compensation, but that it
should be liberal. The defendant did not request the instruction to
be qualified or explained, or a different one given.
Held
that the charge in that respect furnishes no ground for reversing
the judgment.
This is an action by Ann P. Edgar to recover from the Congress
and Empire Spring Company $20,000 for personal injuries inflicted
on her by a buck deer, the property of that company, in the
Congress Spring Park at Saratoga Springs, New York.
The declaration charges that on and for a long time prior to
Oct. 20, 1870, the defendant had been and was the owner and
proprietor of "Congress Spring," from which the defendant has
realized, and does realize, great gains and profits; that said
spring has for a long time been kept open and accessible to the
public generally, and all people have been invited to patronize its
waters, in various forms, by the defendant; that, to make it more
inviting and attractive, the defendant opened in connection
therewith an extensive park, ornamented with fountains, trees,
shrubbery, and flowers, through which extensive graveled walks are
made for the comfort of those who indulge in the use of the mineral
waters and enjoy the landscape; that further to enhance the
attractions of said park, the defendant obtained and in some degree
domesticated several wild deer, among them a large and powerful
buck, with large and dangerous horns, but of vicious character and
habits, known as the "Ugly Buck;" that the defendant, its officers
and agents, well knowing that the said buck was vicious, and
dangerous to be
Page 99 U. S. 647
permitted to run at large in said park, did permit him to run at
large in said park, and while the plaintiff had on that day visited
said springs to partake of the waters, and was in the day time
peaceably proceeding along one of the walks in said park,
constructed by the defendant for the comfort of visitors, he did
fiercely attack the plaintiff with his horns, head, and feet, and
did bite, bruise, and greatly lacerate her in various parts of her
person.
The company, in addition to the general issue, interposed a plea
that the damage and injury complained of by the plaintiff was
occasioned by her own fault and negligence, and by her refusal to
obey the reasonable rules and regulations of the company, and by
her voluntary disregard of the express notice given her to keep off
the grass in the grounds, and not to interfere with or molest the
buck.
At the trial, the plaintiff testified that on the morning in
question, after drinking at the spring, she walked through the
grounds, and met a deer which attacked her, goring and striking her
with his head and horns and greatly injuring her. On her
cross-examination, she testified, in substance, that before the
occurrence she had frequently been in the habit of going to
Congress Spring Park to enjoy the water and the pleasure of a walk;
that she noticed the deer in the park as early as 1866, and had
often seen them running about on the lawn; that she had seen
persons fondling the deer and playing with them on different
occasions; and that she had noticed signboards through the park
containing the notice, "Beware of the buck."
A witness for the plaintiff, introduced as an expert, testified
that he was a dentist, and resided in Albany; that he was to some
extent acquainted with the habits and nature of the deer, and had
hunted them; that in his opinion the buck deer are not generally
considered as dangerous, but that in the fall they are more
dangerous than at other seasons. Another expert testified that he
was a taxidermist, and had made natural history a study, and had
read the standard authors in regard to the general characteristics
of deer; that from his reading he was of opinion that the male
deer, after they have attained their growth and become matured, are
dangerous, and that during
Page 99 U. S. 648
the rutting season -- from the middle of September to the middle
of December -- the buck deer are generally vicious. The defendant
objects to all the testimony of the experts, on the ground that the
witnesses had not shown themselves competent as experts, and that
it was improper, immaterial, and incompetent; but the court
overruled the objection, and the defendant excepted. Another
witness for the plaintiff testified that the park contained about
eleven acres; that in 1870 there were nine deer in the park, among
them three bucks, the oldest of which was four years old; that he
first learned that this buck was ugly when the plaintiff was
knocked down; that in 1868, notices were put up in the park
cautioning visitors not to tease or worry the deer; that such
notices were posted at different places in the park; that the park
was frequented by a great number of people, with the consent of the
defendant, all through the season; that the object of keeping deer
in the park was their beauty; that up to the time of the accident,
he had no knowledge, information, or belief that a deer or buck, or
this buck in the rutting season, or any other, ever attacked a
person that was not disturbing or interfering with him.
The testimony having closed, the defendant moved that the action
be dismissed, the plaintiff nonsuited, and that a verdict be
directed in favor of the defendant, on the following grounds:
1. The evidence does not establish a cause of action.
2. It appears that the place where the accident happened was the
private grounds of the defendant; that the plaintiff knew that the
defendant kept in those grounds this buck and other deer, and went
there with full knowledge of all the circumstances.
3. That the plaintiff is chargeable with the same knowledge of
the character of the buck as the defendant.
4. That no knowledge by the defendant of the vicious character
of the buck has been shown.
5. That if any negligence existed, the plaintiff was guilty of
negligence equally with the defendant.
The court denied the motion, and the defendant duly
excepted.
The court thereupon charged the jury, and among other things
stated as follows:
"Some testimony has been produced
Page 99 U. S. 649
here by witnesses who have stated to you the result of their
reading in natural history, and the result of the opinion expressed
by hunters and sportsmen, as to the general characteristics of the
deer; and it is for you to say how much is proved by that evidence.
The plaintiff claims to show by that evidence that the deer at a
certain season of the year is a dangerous animal. It is for you to
say whether, after the cross-examination of the witnesses, you can
arrive at that conclusion."
Upon the question of damages, the court, among other things,
charged as follows:
"In these cases, while, upon the one hand, a jury should guard
themselves against the exaggeration which so frequently, and I may
say generally, characterizes the statements of the parties in
regard to their injuries, and in regard to the damages they have
sustained, upon the other hand, when you make up your mind as to
the amount really sustained, you are not to be nice in the award of
compensation. It should be liberal."
To the concluding portion of the charge the defendant
excepted.
There was a verdict for the plaintiff for $6,500; and judgment
having been rendered thereon, the defendant sued out this writ of
error.
Page 99 U. S. 651
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Animals
ferae naturae, as a class, are known to be
mischievous, and the rule is well settled that whoever undertakes
to keep such an animal in places of public resort is or may be
liable for the injuries inflicted by it on a party who is not
guilty of negligence, and is otherwise without fault.
Compensation in such a case may be claimed of the owner or
keeper for the injury, and it is an established rule of pleading
that it is not necessary to aver negligence in the owner or keeper,
as the burden is upon the defendant to disprove that implied
imputation. Cases have often arisen where no such averment was
contained in the declaration, and the uniform ruling has been that
the omission constitutes no valid objection to the right of
recovery.
May v. Burdett, Law Rep. 9 Q.B. 99.
Negligence was not alleged in that case. Trial was had, and the
verdict being for the plaintiff, the defendant moved in arrest of
judgment that the declaration was bad for not alleging negligence
or some default of the defendant in not properly or securely
keeping the animal. Attempt was made by a very able counsel to
support the motion upon the ground that even if the declaration was
true, still the injury might have been
Page 99 U. S. 652
occasioned entirely by the carelessness and want of caution on
the part of the plaintiff, but Lord Denman and his associates
overruled the motion in arrest and decided that whoever keeps an
animal accustomed to attack and injure mankind, with knowledge that
it is so accustomed, is
prima facie liable in an action on
the case at the suit of the person attacked and injured, without
any averment of negligence or default in securing or taking care of
the animal, and the Chief Justice added what it is important to
observe -- that the gist of the action is the keeping of the animal
after knowledge of its mischievous propensities.
Precedents both ancient and modern, it seems, were cited in the
argument and were examined by the court, and the learned chief
justice remarked that with scarcely an exception, they merely state
the ferocity of the animal and the knowledge of the defendant,
without any allegation of negligence or want of care.
Jackson
v. Smithson, 15 Mee. & W. 563;
Popplewell v.
Pierce, 10 Cush. (Mass.) 509.
Injuries of a serious character inflicted by a mischievous deer,
which the defendant company kept in their park, were received by
the plaintiff at the time and place alleged, for which she claims
compensation of the company. By the declaration, it appears that
the company is the owner and proprietor of the Congress Spring at
Saratoga in the State of New York, whose waters have become
celebrated for their medicinal qualities and the source of great
gains and profits to the company. Among other things, the plaintiff
alleges that the spring had for a long time been kept open and
accessible to visitors, the public being invited in various forms
to patronize its waters, and that to make it more inviting and
attractive, the company had opened in connection therewith an
extensive park, ornamented with fountains, trees, shrubbery, and
flowers, through which extensive graveled walks have been
constructed for the use and comfort of those who resort there to
use the mineral waters and to enjoy the landscape; that the
company, in order further to enhance the attractions of the park,
had obtained and in some degree domesticated several wild deer, and
among them a large and powerful buck, with large horns and of
vicious character and habits, which were well known
Page 99 U. S. 653
to the defendant company, their officers and agents, and the
residents of the village.
Actual knowledge by the company of the mischievous character of
the animal is alleged by the plaintiff, and she avers that the
vicious animal on the day named, to-wit, the 18th of October, 1870,
was permitted to run at large in the park, and that she on that day
visited the spring to partake of its waters, and that while she was
peaceably proceeding along one of the walks in the park, she was
fiercely attacked by the mischievous buck and greatly injured,
bruised, and lacerated, as more fully set forth in the
declaration.
Service was made, and the defendant company appeared and
pleaded:
1. The general issue.
2. That the damage and injury suffered by the plaintiff were
occasioned by her own fault in neglecting to obey the rules and
regulations of the company.
On motion of the plaintiff, a jury was impaneled and the parties
went to trial, which resulted in a verdict and judgment in favor of
the plaintiff. Exceptions were filed by the defendant company, and
they sued out the pending writ of error.
Since the cause was entered here, the defendant company has
filed the following assignments of error:
1. That the court, in view of the evidence, should have directed
a verdict for the defendant.
2. That the court erred in admitting the questions to the two
witnesses called by the plaintiff as experts.
3. That the court erred in the instructions given to the jury in
respect to the question of damages.
Certain animals
ferae naturae may doubtless be
domesticated to such an extent as to be classed, in respect to the
liability of the owner for injuries they commit, with the class
known as tame or domestic animals; but inasmuch as they are liable
to relapse into their wild habits and to become mischievous, the
rule is that if they do so, and the owner becomes notified of their
vicious habit, they are included in the same rule as if they had
never been domesticated, the gist of the action in such a case, as
in the case of untamed wild animals, being not merely the negligent
keeping of the animal, but the keeping of the same with knowledge
of the vicious and mischievous propensity of the animal. Wharton,
Negligence, sec. 922;
Decker v. Gammon, 44 Me. 322.
Page 99 U. S. 654
Three or more classes of cases exist in which it is held that
the owners of animals are liable for injuries done by the same to
the persons or property of others, the required allegations and
proofs varying in each case. 2 Bla.Com., per Cooley, 390.
Owners of wild beasts or beasts that are in their nature vicious
are liable under all or most all circumstances for injuries done by
them; and in actions for injuries by such beasts it is not
necessary to allege that the owner knew them to be mischievous, for
he is presumed to have such knowledge, from which it follows that
he is guilty of negligence in permitting the same to be at
large.
Though the owner have no particular notice that the animal ever
did any such mischief before, yet if the animal be of the class
that is
ferae naturae the owner is liable to an action of
damage if it get loose and do harm. 1 Hale P.C. 430;
Worth v.
Gilling, Law Rep. 2 C.P. 3.
Owners are liable for the hurt done by the animal even without
notice of the propensity, if the animal is naturally mischievous,
but if it is of a tame nature, there must be notice of the vicious
habit.
Mason v. Keeling, 12 Mod. Rep. 332;
Rex v.
Huggins, 2 Ld.Raym. 1574.
Damage may be done by a domestic animal kept for use or
convenience, but the rule is that the owner is not liable to an
action on the ground of negligence, without proof that he knew that
the animal was accustomed to do mischief.
Vrooman v.
Sawyer, 13 Johns. (N.Y.) 339;
Buxendin v. Sharp, 2
Salk. 662;
Cockerham v. Nixon, 11 Ired. (N.C.) L. 269.
Domestic animals, such as oxen or horses, may injure the person
or property of another, but courts of justice invariably hold that
if they are rightfully in the place where the injury is inflicted
the owner of the animal is not liable for such an injury, unless he
knew that the animal was accustomed to be vicious; and in suits for
such injuries such knowledge must be alleged and proved, as the
cause of action arises from the keeping of the animal after the
knowledge of its vicious propensity.
Jackson v. Smithson,
15 Mee. & W. 563;
Van Leuven v. Lyke, 1 N.Y. 515;
Card v. Case, 5 C.B. 632;
Hudson v. Roberts, 6
Exch. 697;
Dearth v. Baker, 22 Wis. 73;
Cox v.
Burbridge, 13 C.B.N.S. 430.
Page 99 U. S. 655
It appears by the bill of exceptions that the plaintiff on the
morning of the day of the injury entered the park belonging to the
defendant company; that after drinking of the water of the spring,
she walked through the grounds and that she met the mischievous
deer; that he attacked her, goring and striking her with his head
and horns, whereby she was thrown down and greatly injured and put
to great suffering and expense, as more fully set forth in her
testimony. On her cross-examination she testified that she had been
in the habit of visiting the park to enjoy the water and the
pleasure of the walk; that she had noticed the deer at an earlier
period and had often seen them running about on the lawn; that she
had seen persons playing with them on different occasions; and that
she had noticed the signboard posted in the park containing the
notice, "Beware of the buck." Another witness called by the
plaintiff testified that the park contains about eleven acres; that
there were nine deer in the park, among which were three bucks, the
oldest being four years old; that he first heard that the buck was
ugly when the plaintiff was attacked and knocked down; that notices
were put up at different places in the park a year or two before,
cautioning visitors not to tease or worry the deer; and that he had
no knowledge or belief prior to the accident that the buck or any
other of the herd would attack any person if they were not
disturbed. Expert witnesses were called by the plaintiff, and they
gave it as their opinion that the male deer in the fall of the year
is a dangerous animal.
Five witnesses were examined in behalf of the plaintiff, but the
bill of exceptions does not show that the defendant company gave
any evidence in reply, nor is it stated that the whole testimony
introduced by the plaintiff is reported. When the evidence was
closed, the defendant moved that the action be dismissed, that the
plaintiff be nonsuited, and that the court direct the jury to
return a verdict in favor of the defendant.
Discussion of the first two propositions involved in the motion
is wholly unnecessary, for two reasons:
1. Because the jurisdiction of the court was beyond doubt, and
the record shows that the suit was well brought.
2. Because it is not competent for the circuit court to order a
peremptory nonsuit in any case.
Page 99 U. S. 656
Circuit courts cannot grant a nonsuit, but the defendant at the
close of the plaintiff's case may move the court to instruct the
jury that the evidence introduced by the plaintiff is not
sufficient to maintain the action, and to direct a verdict for the
defendant. In considering the motion, the court proceeds upon the
ground that all the facts stated by the plaintiff's witnesses are
true, and the rule is that the motion will be denied unless the
court is of the opinion that in view of the whole evidence and of
every inference the law allows to be drawn from it, the plaintiff
has not made out a case which would warrant the jury to find a
verdict in his favor.
Merchants' National Bank v. State
National Bank, 3 Cliff. 205;
Same
v. Same, 10 Wall. 655.
Tested by that rule, which is everywhere admitted to be correct,
it is clear that the motion of the defendant was properly denied,
for several reasons:
1. Because the proof of injury was overwhelming.
2. Because the allegation that the animal was vicious and
mischievous was satisfactorily proved.
3. Because the evidence to prove that the defendant company had
knowledge of the vicious and mischievous propensity of the animal
was properly left to the jury, and it appearing that the circuit
court overruled the motion for a new trial, the court here cannot
disturb the verdict except for error of law.
4. Because the cause of action in the case arises not merely
from the keeping of the animal, but from the keeping of the same
after knowledge of its vicious and mischievous propensities.
5. Because the evidence is plenary that the plaintiff was
rightfully in the place where she was injured, and that the owners
of the vicious animal, inasmuch as the evidence tended to show that
they had knowledge of its mischievous propensities, are justly held
liable for the consequences.
Stiles v. Navigation Company, 33 L.J.N.S. 311;
Oakes v. Spaulding, 40 Vt. 347;
Sarch v.
Blackburn, 4 C. & P. 297;
Same v. Same, 1 Moo.
& M. 505;
Besozzi v. Harris, 1 Fos. & Fin. 92.
Whoever keeps an animal accustomed to attack or injure mankind,
with the knowledge of its dangerous propensities, says Addison, is
prima facie liable to an action for damages at the suit of
any person attacked or injured by the animal, without proof of any
negligence or default in the securing or taking care of the animal,
the gist of the action being the keeping of
Page 99 U. S. 657
the animal after knowledge of its mischievous disposition.
Addison, Torts (ed. 1876) 283;
Dickson v. McCoy, 39 N.Y.
400;
Applebee v. Percy, Law Rep. 9 C.P. 647;
Lead.Cas.Torts 489.
Witnesses are not ordinarily allowed to give opinions as to
conclusions dependent upon facts not necessarily involved in the
controversy, but an exception to that rule is recognized in the
case of experts, who are entitled to give their opinions as to
conclusions from facts within the range of their specialties, which
are too recondite to be properly comprehended and weighed by
ordinary reasoners. 1 Wharton, Evid., sec. 440.
Men who have made questions of skill or science the object of
their particular study, says Phillips, are competent to give their
opinions in evidence. Such opinions ought, in general, to be
deduced from facts that are not disputed or from facts given in
evidence, but the author proceeds to say that they need not be
founded upon their own personal knowledge of such facts, but may be
founded upon the statement of facts proved in the case. Medical
men, for example, may give their opinions not only as to the state
of a patient they may have visited, or as to the cause of the death
of a person whose body they have examined, or as to the nature of
the instruments which caused the wounds they have examined, but
also in cases where they have not themselves seen the patient, and
have only heard the symptoms and particulars of his state detailed
by other witnesses at the trial. Judicial tribunals have in many
instances held that medical works are not admissible, but they
everywhere hold that men skilled in science, art, or particular
trades may give their opinions as witnesses in matters pertaining
to their professional calling. 1 Phil.Evid. (ed. 1868) 778.
It must appear, of course, that the witness is qualified to
speak to the point of inquiry, whether it respects a patented
invention, a question in chemistry, insurance, shipping,
seamanship, foreign law, or of the habits of animals, whether
ferae naturae or domestic.
On questions of science, skill, or trade, or others of like
kind, says Greenleaf, persons of skill, sometimes called experts,
may not only testify to facts, but are permitted to give their
opinions in evidence. 1 Greenl.Evid., sec. 400;
Buster v.
Newkirk, 20 Johns. (N.Y.) 75.
Page 99 U. S. 658
Whether a witness is shown to be qualified or not as an expert
is a preliminary question to be determined in the first place by
the court, and the rule is that if the court admits the testimony,
then it is for the jury to decide whether any, and if any what,
weight is to be given to the testimony. Cases arise where it is
very much a matter of discretion with the court whether to receive
or exclude the evidence; but the appellate court will not reverse
in such a case, unless the ruling is manifestly erroneous.
D.
& C. Steam Towboat Co. v. Starrs, 69 Pa.St 30;
Page v.
Parker, 40 N.H. 48;
Tucker v. Massachusetts Central
Railroad, 118 Mass. 546.
Experts may be examined, says Justice Grier, to explain the
terms of art, and the state of the art at any given time. Speaking
of controversies between a patentee and an infringer, he says that
experts may explain to the court and jury the machines, models, or
drawings exhibited in the case. They may point out the difference
or identity of the mechanical devices involved in their
construction, and adds, that the maxim
"cuique in sua arte
credendum" permits them to be examined in questions of art or
science peculiar to their trade or profession.
Winans v.
New York & Erie Railroad Co., 21 How. 88;
Ogden v.
Parsons, 23 How. 167.
Even if the witnesses are not properly to be regarded as
experts, the court is of the opinion that the testimony was
properly admitted as a matter of common knowledge.
Well guarded instructions were given to the jury on the subject,
as appears from the transcript. Their attention was directed to the
testimony, and they were told that it was for them to determine its
weight, which shows that the defendant has no just ground of
complaint.
Complaint is also made by the defendant that one sentence of the
charge of the court in respect to the damages is erroneous. When
you have made up your mind, said the judge, as to the amount really
sustained, you are not to be nice in the award of compensation. It
should be liberal.
Exception was taken to that remark without request for a
different instruction, or that it should be qualified or explained
in any way. Before that remark was made, the judge cautioned the
jury against giving credence to any extravagant statement
Page 99 U. S. 659
of the injuries received, and then told them that when they had
made up their minds as to the amount, meaning the amount of the
injury really sustained, they should not be nice in the award of
compensation, adding, as if to qualify the antecedent caution given
in favor of the defendant, that it should be liberal.
In examining the charge of the court for the purpose of
ascertaining its correctness in point of law, the whole scope and
bearing of it must be taken together. It is wholly inadmissible to
take up single and detached passages, and to decide upon them
without attending to the context, or without incorporating such
qualifications and explanations as naturally flow from other parts
of the instructions.
Magniac and Others v.
Thompson, 7 Pet. 348.
Instructions given by the court at the trial are entitled to a
reasonable interpretation, and if the proposition as stated is not
erroneous, they are not as a general rule to be regarded as
incorrect on account of omissions or deficiencies not pointed out
by the excepting party.
Castle v.
Bullard, 23 How. 172.
Appellate courts are not inclined to grant a new trial on
account of an ambiguity in the charge to the jury, where it appears
that the complaining party made no effort at the trial to have the
matter explained.
Locke v. United States, 2 Cliff. 574;
Smith v. McNamara, 4 Lans. (N.Y.) 169.
Requests for such a purpose may be made at the close of the
charge, to call the attention of the judge to the supposed error,
inaccuracy, or ambiguity of expression; and where nothing of the
kind is done, the judgment will not be reversed, unless the court
is of the opinion that the jury were misled or wrongly directed.
Carver v. Jackson ex dem.
Astor, 4 Pet. 1;
White v. McLean, 57 N.Y.
670.
None of the exceptions can be sustained, and there is no error
in the record.
Judgment affirmed.
