The plaintiff, a child of eleven years, was passing a two-horse team and wagon standing near the curb. The horses were unhitched. One of them bit the plaintiff as he was passing by. It was about one o’clock and the horses were eating oats from the ground. Plaintiff recovered judgment and the defendant appeals.
The theory of the trial justice seems to have been that proof of scienter was unnecessary because the horse was unhitched and that fact brought the case within the rule that one who negligently permits an animal to be at large is held liable for damages caused by it. I think this view is erroneous. There is a wide difference between a horse permitted to roam at large and a work horse hitched to a wagon standing on the street eating oats. Negligence cannot be predicated on the mere leaving of a horse unattended for the time being in the street while it partakes of its midday meal. In any event the so leaving of the horse was not the proximate cause of the accident. The vicious propensity of the horse was. But to recover for the bite or kick of a vicious animal, knowledge of its vicious nature must be proved. No such proof was offered unless we take as such proof the fact that after the occurrence a muzzle was placed upon the horse. But that might indicate extra precaution instead of previous knowledge of the biting propensity of the animal. It seems to me clearly to be a case where a scienter must be shown.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.
Hendrick, J., concurs.