dissenting: Tbe statute in question, Revisal, see. 3305, is correctly quoted in tbe principal opinion as follows: “If tbe owner of any dog shall know, or have good reason to believe, that this dog, or any dog belonging to any person under bis control, has been bitten by a mad dog, and shall neglect or refuse immediately to kill tbe same, be shall forfeit and pay tbe sum of $50 to him who will sue therefor; and tbe offender shall be liable to. pay all damages which may be sustained by any one, in bis property or person, by tbe bite of any such dog, and shall be guilty of a misdemeanor, and fined not more than $50 or imprisoned not more than thirty days.”
Tbe complaint of plaintiff states bis cause of action as follows :
“Sec. 2. That, on or about 14 January, 1911, tbe defendant bad in bis possession, on bis premises, in Burlington, N. C., a certain dog, which be claims as bis own, and which be knew or bad good reason to believe bad been bitten by a mad dog, and was then and there afflicted with tbe disease known as hydrophobia; but these facts be failed to make known to this plaintiff.
“3. That tbe defendant, knowing full well, or having good reason to know, that bis said dog was suffering with hydrophobia, and was what is usually knowii as a mad dog, invited plaintiff, who is engaged in tbe business of raising and training dogs for bunting purposes, to go on bis premises and examine said dog, and assured this plaintiff that tbe dog would not bite and was in no way vicious.
“4. That in response to said invitation, plaintiff went upon’ tbe premises of tbe defendant for tbe purpose of examining said dog, and at once observed tbe uneasy appearance of' said dog and also noticed froth-, or foam, at bis mouth, .and thereupon *554called the attention of the defendant to it, and the defendant assured plaintiff that there was no danger in the dog; that the foaming at the mouth was caused from the fact that he had treated the dog with castor oil, and told plaintiff to take hold of the dog and examine it, assuring plaintiff that the dog would not bite, and that he was perfectly harmless.
“5. That in obedience to defendant’s request, and relying upon his representations that the dog had been poisoned, and that he was perfectly harmless, plaintiff attempted to take hold of the collar on the dog’s neck, when and where the dog suddenly and viciously turned upon plaintiff and* did then and there bite plaintiff on his right hand, inflicting a very deep and serious wound.
“6. That plaintiff then discovered that the dog was mad, and advised the defendant to have it killed at once, which was done, and its head sent at once to the Pasteur Institute, at Raleigh, N. C., where it was chemically examined by an expert and found diseased with hydrophobia.”
There was evidence on the part of plaintiff in support of the allegations as made and tending to show that plaintiff was induced by defendant to visit the dog for the purpose of treating him, and that plaintiff was not only not informed of the circumstances going to show that the dog had been bitten by a mad dog, which were known to defendant, but that he received assurances calculated to disarm suspicion and leading plaintiff to believe that the dog, while sick, was altogether harmless.
Defendant’s answers and evidence gave a different version of the occurrence, and there was allegation with evidence tending to fix plaintiff with contributory negligence.
From this I think it sufficiently appears that the action is brought upon the statute, and that, while the issues are not very aptly framed, they are broad, enough to present the questions in dispute, and the verdict on the first issue in ‘ plaintiff’s favor, when construed in reference to the charge of the court and the pleading and testimony, has established that plaintiff’s case comes clearly within the statutory provisions.
*555Tbis being true, I am of opinion tbat tbe issue as to contributory negligence and tbe testimony tending to establish it are irrelevant to tbe inquiry, and should be allowed no effect upon tbe result.
There are many decisions, here and elsewhere, upholding tbe proposition tbat, in certain instances, an action on a statute will be defeated by contributory negligence on tbe part of tbe claimant, but tbis, I apprehend, will be found in- reference to statutes designed to control or in some way affect individuals in their social or domestic relationship to each other, and tbe principle has no place where a statute, peremptory in its terms, is in strictness a police regulation, having tbe protection- of the public chiefly in view. Shearman and Redfield on Negligence (5th Ed)., see. 62; Indianapolis, etc., R. R. v. Townsend, 10 Ind., 38; McCall v. Chamberlain, 13 Wis., 637; Flint and Pere Marquette R. R. v. Lull, 28 Mich., 570. In this last case the statute required the railroads to construct fences and cattle-guards, etc., to prevent cattle from getting on the road, and contained the provision that “Until such fences and cattle-guards, etc., shall be duly made, such company, etc., shall be liable for all damages done to cattle, horses, or other animals thereon.”
On recovery for such damages, the defense of contributory negligence was urged on the part of the company, and, in reference to this position, Cooley, J., delivering the opinion, said: “There still remains the question, however, whether the railway company could be held liable if the plaintiff himself was guilty of contributory- negligence. "Were this a common-law action, it is clear that such contributory negligence would be a defense. L. S. and M. S. R. R. Co. v. Miller, 25 Mich., 274; Corwin v. N. Y. and Erie R. R. Co., 13 N. Y., 46. But this is not a common-law action. It is an action given expressly by a statute, the purpose of which is not merely to compensate the owner of property destroyed for his loss, but to enforce against the railway company an obligation they owe to th.e public. The statute is a police regulation, adopted as much for the security of passengers as for the protection of property. Corwin v. N. Y. and Erie R. R. Co., 13 N. Y., 46; McCall v. Chamberlain, 13 *556Wis., 637; Indianapolis, etc., R. R. Co. v. Marshall, 27 Ind., 302; Jeffersonville, etc., R. R. Co. v. Nichols, 30 Ind., 321; Same v. Parkhurst, 34 Ind., 501. And the decisions may almost be said to be uniform that in cases like the present, arising under suck statutes, tbe mere negligence of tire plaintiff in the care of his property can constitute no defense. Corwin v. N. Y. and Erie R. R. Co., 13 N. Y., 42; Indianapolis, etc., R. R. Co. v. Townsend, 10 Ind., 38; Indiana Central R. R. Co. v. Leamon, 18 Ind., 175; McCall v. Chamberlain, 13 Wis., 637; Horn v. Atlantic, etc., R. R. Co., 35 N. H., 169; Indianapolis, etc., R. R. v. Parker, 29 Ind., 472; Jeffersonville, etc., R. R. Co. v. Nichols, 30 Ind., 321.”
And so it is here. The Legislature, aware of the fearful nature of this disease of hydrophobia and recognizing the great danger of its communication and spread by rabid dogs, for the protection of the public have established these stringent regulations and provided in express terms that when an owner shall have reason to believe that his dog has been bitten by a mad dog, and shall neglect or refuse immediately to kill him, he shall forfeit and pay $50 to him who will sue therefor; shall be liable for all.damages that any one shall suffer in his person or property, and shall be guilty of a misdemeanor. There is nothing said here about contributory negligence. The terms of the law are clear and peremptory, “shall tíe liable for all damages,” and to permit the defense of contributory negligence would be to substitute the conduct of the plaintiff for the will of the Legislature as expressed in the statutes, and has no support in good reason or well considered precedent.
OlabK, C. J., concurs in this dissent.