The case of Muller v. McKesson,* recently decided in this court, contains a review of the authorities and lays down the principles which should govern actions of this character, and it is unnecessary to elaborate them here. The views expressed in the opinion in that case are substantially the same as those expressed by DALY, Ch. J., in the court below in this case.
It may be regarded as established. First. That such an action is based upon the keeping of a vicious dog with knowledge of his propensities, and if injury ensues, the owner is liable, and that if negligence is an element of a cause of action at all, it is not so in the ordinary sense of that term, but consists in the act of keeping the dog with knowledge of his disposition.
Second. That contributory negligence, as that term is understood in law, is not a defense.
Third. That to constitute a defense to such an action, it must be established that the person injured did some act from which it may be affirmed that he brought the injury upon himself. If a person should thrust his arm into a bear's mouth and get bit, it could not be said that the *Page 350 injury was caused by keeping the bear; and so, if a person, knowing the vicious propensities of a dog, should wantonly or willfully do an act to induce the dog to bite, or should unnecessarily and voluntarily put himself in the way of the dog, knowing the probable consequences, the same principle would apply.
In this case the only exception was to that part of the charge which stated that contributory negligence was not a defense. There was no error in this charge, and the evidence fell far short of coming up to the standard which constitutes a defense. The dog was loose, and there is no evidence that the plaintiff had knowledge of his vicious propensities. All she did was to offer the dog a piece of candy, when he sprang at her and bit her. Ordinary familiarities with a dog running loose can scarcely be called negligence in any degree. They are not acts from which any bad consequences would naturally follow, certainly not from a peaceful dog, which, it may be presumed, every dog at large is.
The charge that contributory negligence might be considered on the question of damages was quite as favorable to the defendant as he was entitled to, and he cannot, therefore object to it.
There was evidence tending to establish both the necessary elements to constitute the cause of action, viz., the vicious character of the dog and the knowledge of the defendant, and the finding of the jury upon these points is conclusive upon this court.
The judgment must be affirmed.
All concur, except ALLEN, J., absent.
Judgment affirmed.
* Note, ante, p. 195. *Page 351