The defendant is engaged in the business of a common carrier and, as such, received from their owner four trained bears for transportation on one of his steamboats from New York to New Haven. They were confined in cages; three of the sides of which were of wood, while the fourth side, or front, of the cage, consisted of an iron grating, over which a wooden slide was so adjusted as to be moved up and down. Upon arriving at New Haven, at half-past four in the morning, the cages were removed to the defendant's freight house upon the dock, to await their delivery, at a later *Page 24 hour, to the owner. He arranged the cages in the form of a square, somewhat apart, and so that the front of each cage should face within. He, then, raised the slides somewhat, watered the animals and went off to arrange for taking them away. Some three hours later, the plaintiff, a boy nine years old and apparently quite capable of taking ordinary care of himself, came upon the dock, though having no business there, entered the freight house and went between two of the cages. He was bending down to look through the grating of one of them and, in that attitude, putting one foot back of the other, when the bear in the cage behind him seized it and inflicted the injury, for which this action was brought. He recovered a judgment against the defendant for damages; which the Appellate Division justices, not all concurring, have affirmed.
I am unable to perceive any legal ground for sustaining the recovery. There was no formal charge and I find it somewhat difficult to understand, from the various rulings made by the trial court upon requests for instructions to the jurors, on what theory the case was submitted; unless it be this that the defendant was liable, in all events, if the animal was "not being securely kept." The jurors were instructed that "this case is not considered as an action for damages for negligence" and that "if the boy was a licensee upon the defendant's premises, and if the bear was in the defendant's possession, and, through not being securely kept, injured the boy, the boy is entitled to recover, unless the injury was caused by an act of the boy, done with the knowledge that he was exposing himself to the risk of injury from the animal." It is, probably, the fact, regarding the various instructions to the jurors, that the trial court applied the strict rule of liability, adopted in cases where ferocious animals, whether ferae naturae, or domitae, are kept, with the owner's knowledge of their ferocious propensities. In such cases, no distinction seems to be made between the two classes of animals, (Addison on Torts, 22, 230, 4th Eng. ed.), and the liability, which attaches for any injury done, is absolute; unless it can be *Page 25 shown that the person injured voluntarily, or consciously, did something to bring about the injury. This rule of liability, I apprehend, is predicated upon the wrongful and unjustifiable conduct of the owner in keeping an animal of a vicious and, therefore, dangerous nature. If it is not securely confined, it is, plainly, a public nuisance and security must be assured under all circumstances. The gravamen of the action, in such cases, is the keeping of the animal, with knowledge of its propensities, and if it does some mischief, negligence is not, strictly speaking, an element of the owner's liability. There is, perhaps, a presumption juris et de jure of negligence based upon the keeping and, in that sense, only, an action would rest upon negligence. (Card v. Case, 5 C.B. Rep. 622.) The liability of an owner is absolute and he is bound to keep the animal secure, or he must suffer the penalty for his failure to do so, in making compensation for the mischief done. (See Muller v. McKesson,73 N.Y. 195; Lynch v. McNally, Ib. 349; Kelly v. Tilton, 3 Abb. Ct. of App. Cases, 495; Van Leuven v. Lyke, 1 N.Y. 516;Spring Co. v. Edgar, 99 U.S. 645; May v. Burdett, 9 Ad. El. [N.R.] 101; Card v. Case, supra.) In this case the owner of the bears might well be under an absolute liability for keeping that dangerous kind of property; but the defendant was not the owner of the bears; nor was he their keeper within the meaning of the cases. He neither kept, nor maintained, them, as an owner. As a common carrier he received them as so much freight, as he was warranted in doing; there being nothing in the condition in which they were taken over by him, which constituted a public menace, or a nuisance. Indeed, the jurors were expressly instructed that the defendant could not "refuse to take property for transportation, simply, because it was of a dangerous character." There is no suggestion that the animals were not securely confined in their cages and the defendant, in receiving them as a carrier, assumed to their owner the carrier's liability for their safe carriage and to the general public he owed the duty of adopting reasonable precautions *Page 26 to prevent accidents, while the animals were in his possession. The duty, or the responsibility, of the carrier would be proportioned to the nature of the freight carried; for, obviously, a different degree of care would be called for, if the item of freight is of a dangerous character, such as would be a wild and ferocious animal, or some highly explosive compound, from what would be required, if some harmless article were in his custody. It does not appear that the defendant neglected the exercise of a reasonable precaution in carrying these animals and, when they were taken from his vessel, they were placed within the freight house, with the cages so arranged as to have their fronts face within a square. Thus there was no danger whatever to the passing public. It required unauthorized meddling to create the danger. It cannot, with any show of reason, be said that it was improper to permit their owner to lift, somewhat, the wooden slides, which covered the iron grating, in order to admit air more freely. The grating, itself, was composed of upright iron bars, set, from two to three inches apart, into a horizontal iron bar, crossing the cage at a distance of about ten inches from the floor. Thus constructed and placed as these cages were, there was no possibility of the animals doing any mischief; unless a person, voluntarily and unnecessarily, exposed himself to it, by going within the inclosure and too close to the grating. The plaintiff was, concededly, sui juris; as the trial judge stated to the jury. He had no occupation, which took him to the building, and, at the most, he could, only, claim to be there as a mere licensee, or by the passive acquiescence, with which the public was permitted by the defendant to frequent the dock. That being so and the possession of the animals being temporary and in the ordinary course of the defendant's business as a carrier, no wrong could be charged to him, until it was shown that he neglected, in some respects, his duty to wayfarers to exercise such a reasonable precaution as ordinary prudence would dictate. As already stated, the cages were not left exposed upon the dock; they were prudently placed and arranged *Page 27 within a building. No employé of the defendant interfered with them. Under the circumstances, the defendant was not bound to anticipate that persons, impelled by curiosity, would stray about his freight house and insert their persons between the cages. The question in this case is whether the defendant failed in any duty which he owed to the plaintiff as a member of society. If the plaintiff was there on sufferance, the defendant owed him no duty of active vigilance. It was sufficient if the plaintiff could have made a reasonable use of the dock, or passageway, without being entrapped to his injury. If the defendant cannot be shown to have been negligent with respect to the public safety, in failing to adopt such reasonable precautions in carrying his freight of wild animals as the nature of the case called for, he has come under no liability to the plaintiff. The plaintiff yielded to the promptings of an idle curiosity in interfering with the defendant's perfectly safe disposition of his freight, and, under the circumstances disclosed, I think he did so at his peril. The case should not have been submitted to the jury.
I think, too, that the trial court erroneously refused to charge, upon the defendant's request, that "if, at the time of the accident, the relation of the defendant to the bears was that of a common carrier, who had transported the bears from New York to New Haven upon his boat, and also had landed the bears from the boat into his freight house about three hours previously to the accident, and the bears were there in the freight house awaiting removal by the owner, or his truckman, the defendant was not the owner, or keeper, of the bears within the meaning of the cases which hold that the owner or keeper of a wild animal is liable for injuries caused by it, irrespective of negligence, in the ordinary sense of the word, on his part. But in such case the defendant could be held liable, if at all, only upon proof of negligence, in the ordinary sense of the word, on his part."
For the reasons given, I advise the reversal of the judgment appealed from and that a new trial be ordered; costs to abide the event. *Page 28