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 imputaion. 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 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 gravelled 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 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 impanelled, 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.