Campbell, J.
The complaint in this cause states two grounds on which a recovery is claimed : First, that the defendant wrongfully and without leave, having in his possession and keeping a large, cross, ferocious and dangerous dog, entered upon the premises of the plaintiff’s father, and where the plaintiff was employed and lived with his father, whereupon the dog, without provocation and without the fault of the plaintiff, ferociously attacked and bit him ; and, second, that before and at the time of the injury, the defendant well knew that the dog was ferocious and dangerous, and accustomed to bite mankind. At the close of the case on the part of the plaintiff, the defendant moved for a nonsuit, on the ground that there was no evidence to charge the defendant with knowledge of the dog’s vicious habits, which motion was denied, and renewed again at the close of the whole evidence in the case, and again denied; to which ruling the defendant excepted.
The defendant then requested the court to charge the jury, that the defendant could not be held liable, unless he was shown to have had knowledge of the dog’s propensity, and the court refused so to charge ; to which refusal there was an exception. The judge charged the jury, that if they found the fact that the defendant’s dog was in the habit of following a team after which the defendant rode, and of watching such team, and that he was a dangerous and vicious dog to strangers passing by, when watching such team, and the jury should find the fact that he bit the plaintiff under the shed of the plaintiff’s father at the public inn, in the manner and [153]*153under the circumstances testified to by the plaintiff and his witnesses, then the defendant was liable without proof of the defendant’s knowledge of the vicious and dangerous propensities of the dog, and although he might only be vicious and dangerous to strangers passing when he was watching.
The defendant had previously requested the judge to charge, that if the jury found the fact as proved by the plaintiff's witnesses, as to the hitching of the horses at the shed of the plaintiff’s father, &c., and the biting of the plaintiff, it was not sufficient to charge the defendant, unless the defendant had knowledge. There was a refusal so to charge, and an exception.
Without stopping now to consider whether there was sufficient legal evidence to warrant the jury in finding, that at and previous to the injury, the dog -was a vicious and dangerous dog to strangers passing by, when he was watching a team which he had followed; that is, that he would bite such strangers, for he could not be dangerous otherwise, inasmuch as the question whether the defendant had knowledge was wholly withdrawn and excluded from the consideration of the jury, it seems to me that the case narrows down to the single question, whether the dog was a trespasser on the premises of the plaintiff’s father.
The plaintiff’s father was the keeper of a public inn ; he was obliged by law to provide food and lodging for travelers, and stabling and provender for their beasts. The defendant came as a traveler, entered the inn, and with his fellow traveler called for beer and cigars, and thus became the guest of the house. (McDonald v. Edgerton, 5 Barb. 560.)
There is a contradiction as to the team : the hostler swearing that he gave no directions as to the hitching, and the defendant’s witness, Oran, saying that the hostler pointed out the place where the team was hitched, and told him he might hitch it there. This was in front of the shed. The dog was not there then, but was afterwards found lying under the shed and immediately in front of the horses. The plaintiff [154]*154seeing the horses injuring the wagon of his father, was about unhitching them, when the dog bit him. It was a shed belonging to the inn where the master was a guest, and where the team after which the master rode was hitched. It does not seem to me that the dog could, under the circumstances, be considered a trespasser, any more than if he had been found lying in front of the team in a public highway. It is true that a dog is not a necessary traveling companion, though often a very pleasant and useful one, and I would be unwilling to hold, that when he followed the master where the master had a right to go, he could always be treated as a trespasser. Certainly the least exceptionable place where a traveler’s dog could be placed would be by his horses, under the shed of a public inn. The dog, almost universally considered and treated as the faithful friend of man, following him in his labor, his journeyings, and his sports, takes the place among domestic animals, which he owns and uses for his protection and his pleasures. The master has property in him, as in his horse, and the same rule must apply. To hold the master liable, it must appear that the dog was vicious, and the master knew it, or that he was a trespasser at the time of doing the injury. Certainly if the plaintiff had been injured by the bite or the kick of one of the horses at the time he was unhitching them, it would hardly be contended that the owner was liable, unless it had appeared that the horse was vicious, and prone to kick or to bite.
I hardly think that the evidence of subsequent bad conduct of the dog was admissible. In the case of Dean v. Clayton, (7 Taunton, 489,) Best, justice, cited a decision of Lord Mansfield, in a case where an ox, driven to market, was tranquil when it left, and became frenzied and gored the plaintiff, held an action would not lie. The animal, the dog for instance, may have been tantalized and annoyed and made cross. Hence the necessity of proving previous bad character, and that it was known. The subsequent bad character proves little. Besides, in this case the defendant parted with the [155]*155dog, and subsequent treatment and training may have much to do with subsequent bad conduct.
But there is another view of this case, as regards the question of trespass. The dog was in the shed, not in accordance with, but against, the will of the owner. In the same case of Dean v. Clayton, Mr. Justice Park says: “A man may, and easily can, control his horse, but he cannot his dog.” A dog might not be considered an intruder or trespasser, where an ox or d horse would. In this case, the defendant drove the dog back when he was leaving home; and conceding that the dog had no right to lie down in the shed, yet the trespass was involuntary and excusable. For the trespass itself, I do not think an action would lie. When the plaintiff’s dog chased a hare on to the defendant’s ground, and was killed by a dog spear, and such chasing was involuntary and against the plaintiff’s will, Dallas, justice, says in the case before alluded to, “ that if the action had been by the defendant against the plaintiff for the trespass, it would have been a defense.”
There is an exception created by statute. By the statute law of this state, the owner or possessor of a dog is liable for any sheep killed by such dog, without previous notice to the owner or possessor that the dog was mischievous, or disposed to kill sheep. (1 R. S. 704, § 9.) In such case, and though the dog may trespass against the owner’s wishes, and without his notice or consent, the owner or possessor is liable. The statute, then, makes the owners of dogs liable, while owing to the decision in Van Leuven v. Lyke, (1 Comst.
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Campbell, J.
The complaint in this cause states two grounds on which a recovery is claimed : First, that the defendant wrongfully and without leave, having in his possession and keeping a large, cross, ferocious and dangerous dog, entered upon the premises of the plaintiff’s father, and where the plaintiff was employed and lived with his father, whereupon the dog, without provocation and without the fault of the plaintiff, ferociously attacked and bit him ; and, second, that before and at the time of the injury, the defendant well knew that the dog was ferocious and dangerous, and accustomed to bite mankind. At the close of the case on the part of the plaintiff, the defendant moved for a nonsuit, on the ground that there was no evidence to charge the defendant with knowledge of the dog’s vicious habits, which motion was denied, and renewed again at the close of the whole evidence in the case, and again denied; to which ruling the defendant excepted.
The defendant then requested the court to charge the jury, that the defendant could not be held liable, unless he was shown to have had knowledge of the dog’s propensity, and the court refused so to charge ; to which refusal there was an exception. The judge charged the jury, that if they found the fact that the defendant’s dog was in the habit of following a team after which the defendant rode, and of watching such team, and that he was a dangerous and vicious dog to strangers passing by, when watching such team, and the jury should find the fact that he bit the plaintiff under the shed of the plaintiff’s father at the public inn, in the manner and [153]*153under the circumstances testified to by the plaintiff and his witnesses, then the defendant was liable without proof of the defendant’s knowledge of the vicious and dangerous propensities of the dog, and although he might only be vicious and dangerous to strangers passing when he was watching.
The defendant had previously requested the judge to charge, that if the jury found the fact as proved by the plaintiff's witnesses, as to the hitching of the horses at the shed of the plaintiff’s father, &c., and the biting of the plaintiff, it was not sufficient to charge the defendant, unless the defendant had knowledge. There was a refusal so to charge, and an exception.
Without stopping now to consider whether there was sufficient legal evidence to warrant the jury in finding, that at and previous to the injury, the dog -was a vicious and dangerous dog to strangers passing by, when he was watching a team which he had followed; that is, that he would bite such strangers, for he could not be dangerous otherwise, inasmuch as the question whether the defendant had knowledge was wholly withdrawn and excluded from the consideration of the jury, it seems to me that the case narrows down to the single question, whether the dog was a trespasser on the premises of the plaintiff’s father.
The plaintiff’s father was the keeper of a public inn ; he was obliged by law to provide food and lodging for travelers, and stabling and provender for their beasts. The defendant came as a traveler, entered the inn, and with his fellow traveler called for beer and cigars, and thus became the guest of the house. (McDonald v. Edgerton, 5 Barb. 560.)
There is a contradiction as to the team : the hostler swearing that he gave no directions as to the hitching, and the defendant’s witness, Oran, saying that the hostler pointed out the place where the team was hitched, and told him he might hitch it there. This was in front of the shed. The dog was not there then, but was afterwards found lying under the shed and immediately in front of the horses. The plaintiff [154]*154seeing the horses injuring the wagon of his father, was about unhitching them, when the dog bit him. It was a shed belonging to the inn where the master was a guest, and where the team after which the master rode was hitched. It does not seem to me that the dog could, under the circumstances, be considered a trespasser, any more than if he had been found lying in front of the team in a public highway. It is true that a dog is not a necessary traveling companion, though often a very pleasant and useful one, and I would be unwilling to hold, that when he followed the master where the master had a right to go, he could always be treated as a trespasser. Certainly the least exceptionable place where a traveler’s dog could be placed would be by his horses, under the shed of a public inn. The dog, almost universally considered and treated as the faithful friend of man, following him in his labor, his journeyings, and his sports, takes the place among domestic animals, which he owns and uses for his protection and his pleasures. The master has property in him, as in his horse, and the same rule must apply. To hold the master liable, it must appear that the dog was vicious, and the master knew it, or that he was a trespasser at the time of doing the injury. Certainly if the plaintiff had been injured by the bite or the kick of one of the horses at the time he was unhitching them, it would hardly be contended that the owner was liable, unless it had appeared that the horse was vicious, and prone to kick or to bite.
I hardly think that the evidence of subsequent bad conduct of the dog was admissible. In the case of Dean v. Clayton, (7 Taunton, 489,) Best, justice, cited a decision of Lord Mansfield, in a case where an ox, driven to market, was tranquil when it left, and became frenzied and gored the plaintiff, held an action would not lie. The animal, the dog for instance, may have been tantalized and annoyed and made cross. Hence the necessity of proving previous bad character, and that it was known. The subsequent bad character proves little. Besides, in this case the defendant parted with the [155]*155dog, and subsequent treatment and training may have much to do with subsequent bad conduct.
But there is another view of this case, as regards the question of trespass. The dog was in the shed, not in accordance with, but against, the will of the owner. In the same case of Dean v. Clayton, Mr. Justice Park says: “A man may, and easily can, control his horse, but he cannot his dog.” A dog might not be considered an intruder or trespasser, where an ox or d horse would. In this case, the defendant drove the dog back when he was leaving home; and conceding that the dog had no right to lie down in the shed, yet the trespass was involuntary and excusable. For the trespass itself, I do not think an action would lie. When the plaintiff’s dog chased a hare on to the defendant’s ground, and was killed by a dog spear, and such chasing was involuntary and against the plaintiff’s will, Dallas, justice, says in the case before alluded to, “ that if the action had been by the defendant against the plaintiff for the trespass, it would have been a defense.”
There is an exception created by statute. By the statute law of this state, the owner or possessor of a dog is liable for any sheep killed by such dog, without previous notice to the owner or possessor that the dog was mischievous, or disposed to kill sheep. (1 R. S. 704, § 9.) In such case, and though the dog may trespass against the owner’s wishes, and without his notice or consent, the owner or possessor is liable. The statute, then, makes the owners of dogs liable, while owing to the decision in Van Leuven v. Lyke, (1 Comst. 515,) the owners of horses, sheep, swine, &c., are liable at common law, because the owner of such animals can restrain them, and is therefore bound at his peril to confine them on his own land; and if such animals are improperly in another’s close, and there commit mischief, the owner is liable, without alleging or proving a scienter. Mo law would be requisite, that is, no statute, if the owner was at common law liable for the involuntary trespass of his dog. From the peculiar nature and habit of the animal, it may be seen at a glance, [156]*156how great is the distinction between the trespass of an ox or horse, and that of a dog. The statute makes, and the common law recognizes, this distinction. In either view of this case, whether the dog had a right to follow his master, and lie down in the open shed of a public inn, or whether he was, quoad the master, an involuntary trespasser, I do not think the defendant liable in this action, without proof of knowledge of vicious habits. It is a serious injury to the plaintiff, and one much to be regretted; but it belongs to that class of misfortunes to which we are all subject when there is an injury without accountability, and which the law denominates damnum absque injuria. There must be a new trial, with costs to abide the event.
Balcom, J.
The conclusions to which I have arrived, after examining the question presented by the case and exceptions in this action, are briefly these: If the defendant knew his dog had the habit of following teams after which he rode, and of watching them after they were hitched and left by the defendant, and if he knew his dog was accustomed to attack and bite strangers to him, who approached teams which he watched, the defendant is liable to respond in damages for the injury his dog did to the plaintiff.
A man who owns such a dog, knowing its character, must secure it, so that it will not follow him when he rides to an inn, after a team, which is left in a barn, or shed, or upon premises used by the innkeeper in taking care of the teams and vehicles. If it follows him, and. bites a third person, who lawfully and rightfully approaches or meddles with the team so left at the inn, the owner is liable, although the dog be watching the team at the time.
The plaintiff had the right to unhitch and remove the team, which the dog was watching at the time he tried to do it, and the dog was wrongfully there; and if it had the habit above mentioned, to the knowledge of the defendant at the time the plaintiff was bitten, the plaintiff should recover.
[157]*157[Cortland General Term,
November 9, 1858.
I think the judge erred at the trial, in laying out of view the question, whether the defendant had knowledge of the hahits of his dog at the time the plaintiff was bitten; and for this, reason, I am of the opinion there should be a new trial; costs to abide the event:
Mason, J., dissented.
New trial granted.
Mason, Campbell and Balcom, justices.]