majority">Boyce, J.,

charging the jury :

Gentlemen of the jury George C. Brown, the plaintiff, has brought his action to recover for personal injuries, the character of which you have heard, which he claims to have sustained while aiding and assisting in bridling and harnessing a horse at a club stable, in this city, on the thirty-first day of August, 1897, belonging to the defendants. He further claims that the horse was vicious in her habits, whenever an attempt was made at harnessing her, and that it was due to this vicious propensity of the animal that he received the injuries complained of.

A horse is a domestic animal and is for the most part a kind, gentle and docile animal. It is vicious when it has a disposition or propensity to do any act dangerous in its character to either persons or property, such as biting, kicking, striking with its forefeet, or is given to other bad and ferocious acts or tricks. And if any person shall continue to keep such a horse, knowing - it to have such propensities, he will be liable in damages for any injury inflicted by the horse by reason of any negligence on the part of the owner in the absence of any contributory negligence of the person injured.

The gravamen of the action in cases of this character is the keeping of the 'animal, knowing it to be dangerous.

It is a general rule, with reference to any domestic animal, *542that the owner thereof is not liable for injuries committed by it, unless it be shown that he had knowledge of its evil disposition and dangerous habits.

To entitle the plaintiff to recover, you must be satisfied from the testimony which has been produced before you, that the animal belonged to or was under the control of the defendants ; that she had a vicious habit, likely to cause injury to any one attempting to harness her; that the defendants had knowledge of such vicious habit; and that the plaintiff did not voluntarily contribute to his injury.

For if a person voluntarily and unnecessarily provokes a vicious animal and thereby invites or induces injury, or having knowledge of the evil propensities of an animal, voluntarily puts himself in the way of such an animal, knowing the probable consequences, he is not entitled to recover.

Muller vs. McKerson, 73 N. Y., 195; Marble vs. Ross, 124 Mass., 149; Cooley on Torts, 346.

If you believe from the testimony that the horse was of a vicious disposition—that it possessed those habits and propensities which are dangerous in their character to persons coming in contact with her—and that the defendants had knowledge of such propensities, then they are liable in damages for injuries sustained from her, if the party injured was not guilty of contributory negligence. Knowledge on the part of the owner of the animal as to such vicious habits may be actual or constructive —the latter being gathered from all the facts and circumstances of each particular case, as well as from well established inferences' or presumptions in law.

This court in a recent case (Freidman vs. McGowan)*not as yet reported, said: ‘ ‘ Scienter or knowledge of the vicious disposition of a dog may come to a person in two ways : either from actual knowledge, from observation, or from reports made to the defendant of the vicious actions of the dog; or it may also be gathered or known constructively. For instance, if a dog is generally known to be vicious, and for a long time, being thus vicious, has been kept in the possession of the master or owner, *543it is a fact to go to the jury as to constructive knowledge.” And in the case of Barclay vs. Hartmann,* tried in this county, at the May Term, 1896, not as yet reported, the court said: * ‘ Notice may be of two kinds. It may be an actual notice * * * But that is not the only case in which the master may be liable. There 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 you believe from the evidence that Herdman was a mere manager for the club stable, maintained by the defendants and others for their benefit and convenience, and that he had no other relation thereto than that of employee, and as such manager that the horse was placed in the stable in his care and custody to feed, groom and harness, then there did exist for this purpose the relation of master and servant between the defendants and Herdman, and not the relation of bailor and bailee for hire, as was suggested by the learned counsel for the defendants. And if you believe that Herdman, acting in this capacity, was made the agent of the defendants for the particular purpose of taking charge of the horse, then Herdman’s knowledge of the vicious character of the animal, if you find she was vicious and that thereof he had knowledge, is in law imputed to be the knowledge of the defendants.

Again, if you find from the evidence that the defendants committed the care and custody of the horse, when being used, and not left standing in the stable, to the colored boy Henry, and thereby made the boy their agent for the particular purpose of taking care of and using the horse in their employment, and that while so charged with the care and use of the horse the boy obtained knowledge of its vicious propensities, if you find she had such, then in law the knowledge of the boy is the knowledge of the defendants. It is the duty of the owner of a vicious animal to so keep it that no injury shall occur without the active interference of a stranger, or the contributory negligence of the party injured, and a failure to do this is negligence.

*544Earhart vs. Youngblood, 27 Pa. St., 301; Stomps vs. Kelley, 22 Ill., 140.

You are the exclusive judges of the evidence, and you should carefully consider all the facts and circumstances surrounding this case, and determine it according to a preponderance of the testimony, and if after doing so, you should conclude that the plaintiff is entitled to recover, the measure of damages would be such a reasonable sum as will compensate him for the injuries which he has sustained, as well as for his pain and suffering in the past, and such as may come to him in the future as a result of the injury; and also compensation for reasonable expenses for nursing and medical attendance, if you shall find any proof' of such expenses.

If you conclude that the plaintiff is entitled to recover, we do not think this is a case for punitive or vindictive damages, but only for compensatory damages.

If you should be satisfied from all the evidence that the horse was not vicious, or, if so, that the defendants did not have either actual or constructive knowledge of her ferocious propensities, or that the plaintiff was not injured by the animal, or if injured, the injury was the result of his own negligence, then your verdict should be for the defendants.

Verdict for plaintiff for $150.00.

See page 443.

See 2 Marvel’s Del. Repts., 356.

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