(charging the Jury) :
This is an action on the case brought by Benjamin C. Barclay against John G. Hartman, to recover alleged damages by reason of injuries inflicted by the bite of a dog, the property of the defendant, Mr. Hartman.
It is alleged on the part of the plaintiff in this case that while passing along the highway or streets of this city on the twenty-first of October, 1895, he was attacked by the dog of the defendant and was bitten through the hand.
There is no dispute as to the law in this case; it is a matter of evidence entirely. Yet it becomes ¡[necessary for the Court to lay down to you the law upon this subject.
Every man in the use and occupation of either real or personal estate has a right to use it as he sees fit; but there are imposed upon him certain duties connected with the use of said property. A man may not, and cannot use real estate in a manner which may be injurious to the community in which he lives, nor to the neighbors who surround him.
Nor can a man own personal property which becomes a nuisance; or, in other words, which becomes an injury or an inconvenience to those around him.
In relation to this matter of animals; a man may own animals of a vicious character by nature. That per se, of itself is not sufficient—if a man, for instance, owns a tiger and attempts to take it around, unless secured so as to give notice of danger to the public, *356it would render him liable for any accident which might happen to any person. But as regards domestic animals, that is not the rule. There the person is not liable, unless such animals are vicious or ferocious in their nature and that knowledge is brought home to their owner.
The question of notice lies at the root and foundation of this action; for no man who keeps a dog, no man who has a dangerous animal—which is most often spoken of in the books—is liable, unless knowledge of the dangerous nature and character of that animal is brought home to him.
Notice may be of two kinds. It may be an actual notice— that is, knowledge brought home to the party himself that his dog has bitten a certain person at a certain time, under certain circumstances ; which he had no right to do; or a man may keep a vicious bull, and may have notice brought home to him of some immediate injury he has done. That is actual notice. In case of any accident happening or injury being done either by one animal or the other, in that case, the master would be liable.
But that is not the only case in which the master may be liable. Their may be a case in which there is no actual notice, but where there are certain facts and circumstances which being brought to his knowledge, imply notice; that is, by reason of the duty that is imposed upon him, he reasonably ought to know. If a man has a dangerous dog—though he may never have bitten any person— if he is of a vicious and ferocious character, and that knowledge is brought home to his wife,—under those circumstances, in case of an injury inflicted by that dog, he unquestionably would be liable, though no actual notice had been given. In other words, that is what the law terms constructive notice; which means nothing more nor less than that there are facts and circumstances which are brought to his knowledge tending to show that the animal is a dangerous and ferocious animal; and therefore he would be liable for any consequences which may result from the viciousness of the animal.
You have heard the testimony in this case, and it is a matter *357entirely for you to say whether or not this dog was of a ferocious and vicious character.
It is not contended here that there was any actual notice given in this case; and the question therefore depends upon the question whether there was notice given from the facts that have been proved here, such that this defendant reasonably should have taken notice. In other words; whether that'notice is of such a nature and character as brings home to him a knowledge for which he is responsible, and whether he was acting in violation of a duty imposed upon him by law. That is a matter for you to judge of, having heard the testimony in this case.
We have been asked to charge you in relation to a preponderance of testimony. In criminal cases the testimony must establish the charge beyond a reasonable doubt. In civil cases the law is different; there a preponderance of testimony is sufficient. That testimony may be positive or it may be negative. Positive testimony is that which bears directly upon the. facts in the case. Negative testimony is not as to the immediate fact or occurrence, but facts from which you might infer that the act could not possibly have happened. In other words; the one is affirmative, the other negative. We therefore say to you that positive testimony is more reliable and is stronger than negative testimony.
All the facts in this case are before you—as the Court understands, there is no dispute as to the law. It depends entirely upon the facts.
If you are satisfied that Mr. Hartman was the owner of a ferocious and vicious dog, that either by actual or by constructive notice this fact was brought home to him, then in that case your verdict should be for the plaintiff—provided you are satisfied that the injury was inflicted upon him in the manner in which he has stated. The narr in this case having alleged a scienter—that is, that this defendant kept this dog knowingly, it is necessary that it must be proved that he knew the .vicious habit of the dog. If you are not satisfied upon that question, your verdict should be for the defendant. If you should be satisfied from the facts and circum*358stances proved here that this plaintiff is entitled to recover, that it was by and through the default and the wilful negligence of this defendant in not discharging the duty which he owed to society; then in that case you should give to this man such damages as arose from the injury he sustained, including nursing—medical attendance having been already paid, would not come in—together with pain and suffering in body. In other words, for the mental pain and suffering and the actual injury he sustained, and loss of employment, if any.
The jury disagreed.