ERROR to the Circuit Court of the United States for the Northern District of New York.
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 gravelled 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 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 characteristice 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 the rutting season-from the middle of September to the middle of December-the buck deer are generally vicious. The defendant objecte 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 privated 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 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.
Mr. Charles S. Lester for the plaintiff in error.
The liability of the owner of an animal of any description for an injury committed by it is founded upon his negligence, actual or presumed. Earl v. Van Alstyne, 8 Barb. (N. Y.) 630; Wharton, Negligence, sects. 918-926; Earhart v. Youngblood, 27 Pa. St. 327; Shearman & Redfield, Negligence, sect. 185; Munn v. Reed, 4 Allen (Mass.), 431; Ilott v. Wilkes, 3 Barn. & Ald. 304.
The owner of a domestic animal is not liable for injuries committed by it, unless he had notice that it was accustomed to do mischief. Buller's Nisi Prius, 77; 3 Bla. Com. 153; Vrooman v. Sawyer, 13 Johns. (N. Y.) 339; Van Leuven v. Lyke, 1 N. Y. 515.
The distinction in the liability of the owner of different classes of animals does not always depend upon their being ferae naturae or mansuetae naturae. Deer, when reclaimed and domesticated, cease to be ferae naturae. 2 Kent, Com. 348, 349.
It follows, therefore, that if the deer was a domesticated animal, there was no cause of action made out, because there was no evidence that it had ever before committed any injury, or exhibited any disposition to commit one, nor that the defendant had any knowledge that it possessed a dangerous disposition. The court should have directed a verdict for the defendant.
But if it be claimed that a deer belongs to the same class as lions, bears, and tigers, then, as the plaintiff is chargeable with the same knowledge of its dangerous character as is the defendant, her negligence in going into the enclosure where she knew this deer was confined was such contributory negligence as barred her from recovering. Wharton, Negligence, sect. 926; Earhart v. Youngblood, supra; Brock v. Copeland, 1 Esp. 203; Ilott v. Wilkes, supra.
The evidence of so-called experts admitted to prove the general character of deer was either inadmissible, because the plaintiff was presumed to have knowledge of such character, or it was incompetent.
The character and disposition of a wild or domestic animal is a fact to be ascertained by experience.
It is only upon questions of science, skill, or trade that opinions of experts are admissible. 1 Greenl. Evid., sect. 440; Dewitt v. Bailey, 9 N. Y. 375; Hewlet v. Wood, 55 id. 634; Bristow v. Sequeville, 5 Exch. 275; Nelson v. Sun Mutual Insurance Co., 71 N. Y. 453.
The books of natural history which a witness has read are not of themselves competent evidence. Commonwealth v. Wilson, 1 Gray (Mass.), 337; Morris v. Lessee of Harmer's Heirs, 7 Pet. 554; McKinnon v. Bliss, 21 N. Y. 206; Collier v. Simpson, 5 C. & P. 73.
The statements of what a witness has read in relation to living animals well known to many people is the merest hearsay.
The court below, in charging the jury that when they make up their minds as to the amount of damages really sustained, they were not to be nice in the award of compensation, but that it should be liberal, in effect told them that the plaintiff was entitled to something more than actual compensation,-that she was, in fact, entitled to exemplary or punitive damages. The word 'liberal' means profuse, generous, ample, something more than strict and just compensation, and it was so understood by the jury. That the word is frequently used by courts and in text-books as synonymous with exemplary, see Tullidge v. Wade, 3 Wils. 18; Whipple v. Walpole, 10 N. H. 130; Tillotson v. Cheetham, 3 Johns. (N. Y.) 64; Taylor v. Church, 8 N. Y. 463; Sedgwick, Damages, p. 40.
Exemplary damages are only awarded where there has been wilful misconduct, or a positive intention to injure. Milwaukie & St. Paul Railway Co. v. Arms, 91 U.S. 489; Cleghorn v. New York Central & Hudson River Railroad Co., 56 N. Y. 44; Hamilton v. Third Avenue Railroad Co., 53 id. 25; Wallace v. Mayor of New York, 18 How. (N. Y.) Pr. 169. They are never recoverable against the owner of an animal for injuries done by it. Keightlinger v. Egan, 65 Ill. 235.
Mr. George W. Miller, contra.
MR. JUSTICE CLIFFORD delivered the opinion of the court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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