I do not think the same rule applies in this case as in the selling of milk below standard, adulterated feeds or fertilizers, for example.*
*197The law does not prohibit aman from keeping a dog. If rabies are prevalent in the neighborhood the Commissioner of Agriculture is empowered to command persons who harbor or own dogs toso seclude, confine or muzzle them as to make it impossible for them to bite or inoculate other animals or persons. I do not think a person who honestly endeavors to obey such command, and does in fact obey it by muzzling his dog, is liable for a penalty if some mischance befalls and the dog becomes unmuzzled without any fault of his own. The owner, of a muzzled dog must feed him or be prosecuted by the Society for the Prevention of Cruelty to Animals. In order to feed him the muzzle must betaken off. If the dog should escape unmuzzled during the exercise of reasonable precautions to prevent it, to my mind it would be going altogether too far to say that the owner was liable for a penalty. If a dog were shut in a room with a window, which every reasonable man would suppose to be secure, and should jump through carrying the sash with him, and be at large unmuzzled, or if some one unknown to the owner and against his command should unlock the door and let him out, would that be such a violation of the statute as to render him liable for the penalty ? It would if reasonable effort to comply with the notice forms no element of his liability.
In the present case concededly the dog' was muzzled and .in the house. The ’muzzle was taken off to feed him. Without any fault of the owner his young children accidentally let him out of the house without his muzzle. His children were not his agents or servants in any such sense that he is responsible for what they did.
The dog was not ferocious, and did not display any symptoms of rabies, and the rule with respect to the harboring of wild animals, which by nature are ferocious, and presumably will do harm, does not apply.
I think the learned trial court correctly instructed the jury that the defendant was not responsible if he muzzled the dog and did what a reasonably prudent man should do to keep him muzzled. There was a fair question of fact for the jury whether this ivas done, and I think the judgment should be affirmed.
Sewell, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event, _ .