On Petition for Rehearing.
Adams, J.3. — A petition for a rehearing is presented in this case, based upon the ground that the court erred in holding as harmless that part of instructions nine, eleven and twelve which reads “or should have known by the exercise of reasonable care.” It is assumed by counsel for appellant that the court in the original opinion conceded that the words were erroneous. The opinion will not bear such construction, but holds that as the evidence was not in the record the court must assume that there was evidence of actual notice of the vicious nature of the dog, and, if such proof was before the jury, then the charge that appellant would be bound by constructive notice was harmless.
4. There is no denial in the opinion of the well-settled rule that where no evidence could be introduced under the issues that could have rendered the instructions proper, the cause must be reversed, even though the evidence is not in the record.
5. Appellant was charged in the complaint with owning and keeping a large and vicious bull dog upon his stock farm, and that he knew of the dog’s propensities to bite and attack persons, or should have known them by the exercise of reasonable care. Counsel for appellant are in error in assuming that constructive notice could not be shown in a ease of this kind. Proof could have been offered upon the trial showing the vicious propensities of the dog, for the purpose of charging appellant with notice; and, assuming that such proof was offered, the instructions were correct and are abundantly supported by authority.
*1226. 7. *121It is sufficient to prove that the dog was of a ferocious nature to charge his keeper with knowledge that under some *122circumstances the dog would attack persons. Barclay v. Hartman (1896), 2 Marv. (Del.) 351, 352, 43 Atl. 174; Godeau v. Blood (1880), 52 Vt. 251, 36 Am. Rep. 751; Kittredge v. Elliott (1844), 16 N. H. 77, 41 Am. Dec. 717. If a dog is kept as a watch dog, the very purpose for which ho is kept is evidence of his vicious character. Brice v. Bauer (1888), 108 N. Y. 428, 15 N. E. 695, 2 Am. St. 454; Duval v. Barnaby (1902), 75 App. Div. 154, 77 N. Y. Supp. 337; Nelson v. Barrett (1903), 89 App. Div. 468, 85 N. Y. Supp. 817; Hahnke v. Friederich (1893), 140 N. Y. 224, 35 N. E. 487. In the last case it is said: “"When a person keeps a dog for the purpose of guarding his property against trespassers or criminals it is not unreasonable to infer knowledge on his part of the propensity of the dog to attack and bite mankind, and negligence in allowing him to be at large.”
It is held in the case of Robinson v. Marino (1892), 3 Wash. 434, 28 Pac. 752, 28 Am. St. 50, in a similar action, that it is not necessary for the owner to have actual notice. The court said: “If he has notice that the disposition of the animal is such as it wordd be likely to commit an injury similar to the one complained of, it is sufficient. It is not necessary that the notice be of injury actually committed.” This case is followed in the later case of Grissom v. Hofius (1905), 39 Wash. 51, 55, 80 Pac. 1002.
8. 5. It has been uniformly held that proof of the savage and ferocious disposition of an animal is equivalent to proof of express notice. Muller v. McKesson (1878), 73 N. Y. 195, 29 Am. Rep. 123; Grissom v. Hofius, supra; Robinson v. Marino, supra; Earl v. Van Alstine (1850), 8 Barb. 630. It has also been held the knowledge may be imputed. Corliss v. Smith (1881), 53 Vt. 532; Hahnke v. Friederich, supra; Brice v. Bauer, supra. In the case last cited it is said: “ ‘A man who keeps a dog is bound either to have it under his own observance and inspection, or if not, to appoint some one under’whose observation it *123may be, and that person’s knowledge is the knowledge of the owner’ [Baldwin v. Casella (1872), L. R. 7 Ex. 325].”
“"When it appears that a domestic animal is vicious, and has a propensity to do mischief, of which facts the owner or keeper has notice, either express or implied, the law imposes the dnty upon such owner or keeper of keeping such animal secure, from which duty a liability arises-in favor of any person who without his fault is injured by it, either in person or property.” Knowles v. Mulder (1889), 74 Mich. 202, 41 N. W. 896, 16 Am. St. 627.
Rehearing denied.