. It was held in Brice v. Bauer (108 N. Y. 428) that “ One who has in his- possession and under his control an animal dangerous, unless reasonable precautions are taken to prevent injury to others, is chargeable for an injury occurring because of his omission to take such precautions.” This must be deemed the true doctrine as to the . liability of the owner of a vicious dog, for injuries done by it.
The trial judge, however, in effect charged that if the defendant’s dog was vicious to his knowledge, the plaintiff was entitled to recover, and he declined to instruct the jury that if the dog “ Aider-man ” was in a proper place for the protection of the house and out*146buildings,, and was properly secured, the defendant was entitled, to a verdict. I concur in the views, stated in the opinion of the presiding justice that the exceptions of defendant, to the portion of the charge of the trial judge, ¡and his refusal to charge above referred to, require a reversal of the judgment.
. But I am not prepared to say that, under.all the' circumstances of the case, this court is justified in determining- that proper. precautions had been taken to prevent injury, by the defendant’s, dogs. It is quite, clear that any one. not familiar with the .defendant’s premises,. going there innocently and for a lawful jiurpose, as the plaintiff did, was liable to get. within reach of • the. animals and to sustain, injury by them. '
The plaintiff being injured by defendant’s vicious dogs, negligence on the part of the latter in confining them is presumed. (Muller v. McKesson, 73 N. Y. 195.) And evidence was • necessary on his part to rehut such presumption. I am- Under the impression that, in view of this presumption, ¡and under all the circumstances of the case, the question whether the dogs were or were not properly confined, is one that should- be submitted to a jury on another .trial., I am in favor of reversing the judgment and granting- a new trial, costs to abide the event.
Judgment and order reversed, and judgment absolute ordered for the. defendant.