I find it impossible to concur in the view of the law of this case expressed in the opinion of the chief judge or in the view of the facts expressed in the opinion of Judge GRAY, and, therefore, deem it proper to set forth my reasons for differing from them in a separate opinion as briefly as may be consistent with clearness.
It is no doubt the settled law in this state that the owner of a wild animal of a dangerous character or the owner of a domesticated animal known to be of a vicious disposition is absolutely liable for injuries done by such animal to another unless the injury was brought upon that other by his own conduct; and this liability exists if injury is done by the animal without fault on the part of the person injured, no matter how much care may have been exercised by the owner for the purpose of preventing the injury. (Muller v. McKesson, 73 N.Y. 195.) A bear is a wild animal of such a character that every one is presumed to have knowledge of its savage nature. (Besozzi v.Harris, 1 Foster Finlason, 92.) It has further been held that this liability on the part of the owner of an animal known to be vicious extends to a person who harbors the animal although not its owner. (Brice v. Bauer, 108 N.Y. 428.) According to the opinion of the chief judge the defendant in this case, who had transported the bear as a common carrier and was detaining the animal on his wharf until the transportation charges should be paid at the time when the injury was inflicted upon the plaintiff, is to be deemed a person who harbored the bear within the rule to which I have referred; inasmuch as he was under no obligation to receive and transport such an animal as a common carrier.
As authority for the proposition that the defendant was not bound to undertake to carry such a creature, reference is made to the language of text books and decisions in which it is asserted that a common carrier is under no obligation to receive goods of a dangerous nature such, for example, as nitro-glycerine, high explosives, gunpowder, fireworks, etc. *Page 29 No doubt this assertion has frequently been made in the opinions of the courts, but I have been unable to find any case in which a determination of the question was necessary to the decision rendered. Speaking for myself personally, I entertain very serious doubt whether the statement is correct. In view of the necessary employment of high explosives in mining, engineering and many great industries of the country, can it be possible that each and every common carrier throughout the land may rightfully refuse under any and all circumstances to transport articles of this character? And when we consider the large sums of money which are appropriated from the public treasury by the national government and in the several states for the establishment and maintenance of collections of wild animals for educational purposes, it may also well be doubted, it seems to me, whether our common carriers are at liberty to refuse to convey the wild animals necessary to constitute such collections from one point to another where their presence is desired.
But however this may be, no one will deny that a common carrier may rightfully undertake the transportation of a wild animal. After having entered upon this undertaking as did the defendant here, the question is whether the common carrier is to be held to the strict rule of liability applicable to the person who owns or harbors such an animal, or whether he is liable for an injury which it may inflict upon others only in event of a failure to exercise a proper degree of care in the custody and management of the beast in transit. So far as I am aware, no case has yet been decided which imposes the stricter liability (amounting practically to that of an insurer) upon the carrier. Taking into consideration the facts to which reference has been made in regard to the establishment and maintenance of zoological collections for the pleasure and instruction of the people, I am of opinion that the rule should not be extended and that the carrier should be held liable only for negligence. I admit that the law should require and does require the exercise of a very high degree of care on the part of a carrier who undertakes *Page 30 the transportation of wild animals of a savage nature — a degree of care commensurate with the danger to be apprehended; but further than this it should not go.
As to the facts disclosed in the record in the case at bar I think they presented a question for the jury even under the rule of liability which seems to me the proper rule as applicable to a common carrier who undertakes the transportation of wild animals. I do not think that the contributory negligence of the plaintiff was so clearly made out as to bar him from a recovery as matter of law. He was a boy only nine years of age at the time the injury was inflicted, and the question whether he was sui juris would have been a question of fact for the jury unless, as appears in a statement in the charge of the learned trial judge, his counsel had conceded that he was sui juris. Notwithstanding this concession, I think that the question of his contributory negligence was proper for the consideration of the jury and should not be determined here as a question of law.
For these reasons I vote for a reversal of the judgment and a new trial.