The disputed questions of fact must be deemed settled by the verdict in favor of the plaintiff. It must now be assumed that the plaintiff, a boy of ten years, while upon the sidewalk of Hoosick street, in the city of Troy, was injured by a kick of defendant's horse, while permitted to run loose in the street. That the defendant, upon previous occasions, had turned the horse from his stable to go to water unattended; that upon these occasions the horse run upon the sidewalk and kicked, of which the defendant had been notified and told that it endangered the safety of those passing along the sidewalk. Upon these facts, the motion for a nonsuit was properly denied. To permit a horse of this description to run at large upon the streets of a city, manifestly endangers the safety of the people passing in the streets; and the danger is none the less if the running and kicking are mere playful acts of the horse, than if prompted by a vicious disposition. The danger results from the acts of the horse, not his disposition. The defendant's counsel requested the court to charge the jury, that there was no proof in the case which can justify the jury in finding that the defendant's horse, which was alleged to have injured the plaintiff, was an animal possessed of any vicious propensity or mischievous habit, which required the defendant to exert any greater care over him than prudent men should exercise, in general, over horses kept in the same or a similar locality. The court refused, and the defendant excepted.
It is impossible to say that this refusal worked no injury to the defendant. It is true, that the jury may have based their verdict upon another ground, but it does not, with certainty, appear that they did so base it. If, then, the counsel was right in the assumption, that there was no evidence of any vicious propensity or mischievous habit in this more *Page 403 than any other horse, he was entitled to the instruction asked for, and its refusal was error. An owner of a domestic animal is not, in general, liable for an injury committed by it, unless it be shown that he had notice of its vicious propensity. (VanLeuven v. Dumond, 1 Com. 515, and cases cited.) By vicious propensity, is included a propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Not such only as would impair the utility of the animal for the purpose for which it was kept. This appears from the reason of the rule. The owner is not liable, unless he has notice of the vicious propensity. If he has such notice, he is liable. That is, the owner is not liable for permitting his domestic animal to be at large when he has no reason to apprehend that any injury to others will result therefrom. If he has such reason, he is liable. In the present case the defendant had notice that his horse, when at large, was in the habit of running and kicking upon the sidewalk. These acts, he must have known, were dangerous to others.
The court could not judicially determine that all horses, if turned loose in the city of Troy, would act in the same way. This instruction was, therefore, properly denied. It is not necessary to pass upon the question, whether the owner, by turning his horse loose in the streets of a city, does not thereby render himself responsible for any injury to persons or property done by such horse.
The judgment appealed from must be affirmed.
Judgment affirmed. *Page 404