quite so strict, is applied in the case of licensees, servants, and guests. These, it is held, assume all ordinary risk of getting hurt upon the premises of the licensor, master, or host. But they do not assume extraordinary risk such as is incident to a defect in the nature of a concealed trap. Practically, the law here seems to be a result of balancing considerations of justice and convenience. It is not unreasonable to hold that the licensee and servant should look out for themselves and that the visitor, by accepting hospitality, assumes the risk that his host is exposed to. Thus, we may say that the law raises an implied assumpsit of risk on the part of the licensee, servant, or guest, in view of the benefit which accrues to these persons by reason of the license, employment, or entertainment. This benefit, with the corresponding detriment to the other party, supplies a sort of legal consideration for the implied assumpsit to bear the risk."' 14

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14 Street, Foundations of Legal Liability (Tort), vol. I, p. 157. As illustrating this doctrine as to licensees, servants and guests, see the following cases, also cited by Prof. Street: Ivay v. Hedges, 9 Q. B. D. 82 (Eng.); Wilkinson v. Fairrie, 1 H. & C. 633 (Eng.); Hounsell v. Smyth, 7 C. B. (N. S.) 731 (Eng.); Gautret v. Egerton, L. R., 2 C. P. 371 (Eng.). But see Campbell v. Boyd, 88 N. C. 129, where one who kept up a road for his own use and the use of the public knew of a defect in the road.

See subject, TORTS, Part III, NEGLIGENCE, for discussion of duty of landowner to trespassers and licensees.

CHAPTER II.

LIABILITY FOR ANIMALS.

6. Liability of the owner or keeper of a domestic animal for its trespass.-By the common law, it was the duty of the owner or keeper of a domestic animal to prevent it from straying from his own premises. Failure so to restrain it would therefore render him liable in trespass if the animal got upon a neighbor's premises. Moreover, this liability attached even though the owner or keeper of such animal had, as he supposed, safely enclosed his animals, unless they were set at large by some intermeddler.15 Concerning the rule, Professor Street says: liability here is generally referred to the negligent keeping of the animals. And this is doubtless in a way true; for, though a man is absolutely responsible for damage done to or upon his neighbor's property if he lets his cattle escape, regardless of the care he may have used in keeping them, he cannot be held responsible if he is in no way at fault, as where a meddlesome third person interferes to turn his cattle out.

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"The law here evidently proceeds on the idea that the mischievous propensity of cattle-a term, by the way, which includes horses and pigs to do damage to realty in straying abroad, must be known of all

15 Cooley, Torts (student's ed.), p. 338; Bigelow, Torts (8th ed.), p. 457; Wells v. Howell, 19 Johns. 385 (N. Y.), LEADING ILLUSTRATIVE CASES.

men. Knowledge of this mischievous quality is taken as a sufficient ground for making the owner responsible and therefore liable." 16 In this connection he cites, as instances of the rule, the cases of Ellis v. Loftus Iron Co.17 and Barnes v. Chapin.18 In the first case a stallion poked his head through the fence enclosing him, and bit a mare, injuring her. It was held that the owner of the stallion was liable for the resulting damage, the decision resting, probably, on the ground of the known propensity of stallions to bite; although there is also present an idea of trespass in getting beyond the line of the owner's property, and negligence, too, in failing to maintain a proper and sufficient fence.

In the Massachusetts case, one who turned his horse onto the highway, and allowed it to roam there, was held responsible for the damage resulting from its kicking a colt which was running along the road beside its dam.

This rule of the common law in England became a part of the common law in this country, and so remains unless modified by statute. In many of the states this common law rule has been embodied in statutes; and by these statutes, penalties have frequently been added to the old liability for trespass. In some states, on the other hand, statutes have been enacted requiring landowners to fence in their property, and providing that failure to maintain such statutory fence shall deprive the landowner of his right 16 Street, Foundations of Legal Liability, vol. I, p. 52.

17 Ellis v. Loftus Iron Co., L. R., 10 C. P. 10; 11 Moak 214 (Eng.); Simpson, Cases on Torts, p. 594.

18 Barnes v. Chapin, 4 Allen 444 (Mass.).

to sue for damages caused by the trespass of strayBut such, it is believed, is not the

ing animals.1

general rule.

Where the owner or keeper rightfully has his animals in the highway, and without his fault or negligence they escape from his control, he is not liable for their trespass, providing he remove them as soon as he reasonably can do so. But it has been held "this exemption extends only to lands abutting upon the highway. If animals escape without fault and go upon abutting lands and from thence upon other lands, the latter is a trespass for which the owner of the animals is liable." 20

7. Liability of owner or keeper of wild or vicious animal for injuries.-While it is the general rule that one owning or keeping domestic animals must keep them from straying, as we have seen, yet the rule is not quite so strict as it is regarding one who keeps wild or vicious animals. In the latter case, the keeper of such animals is bound to take into account their wild and vicious nature, and the law makes him practically an insurer against harm by them.21 Such animals are kept at peril, as it is matter of universal knowledge that their natures are such as to make them highly dangerous to mankind. The strictness of the rule may be realized by a remark of an English judge to the effect that, if a man kept a tiger and lightning broke his chain, and the tiger got loose and did harm, the owner would probably be 19 Cooley, Torts (student's ed.), p. 341.

20 Cooley, Torts (student's ed.), pp. 342, 343; Street, Foundations of Legal Liability, vol. I, p. 53.

21 May v. Burdett, 9 Q. B. (N. S.) 101 (Eng.).

held liable.22 It may be questioned, however, if the modern tendency of the law would be to hold to such strict liability; the trend of authority, it would seem, is toward relieving the owner on the ground that the tiger's escape was due to the act of God.

The strict rule of liability as to wild animals is somewhat relaxed in the case of the owner or keeper of bees. But their propensities must be regarded by their keeper, and in an Iowa case it was held that to place the beehives within twenty-five feet of hitching posts in the highway would render one liable for injury to a horse, stung by the bees, while he was hitched at such post.23

The rule of liability for keeping wild animals is practically the same as to one who keeps a so-called domestic animal of known vicious tendencies. The gist of an action for damages for injuries inflicted by a vicious animal, says Judge Cooley, "is not negligence in keeping the animal, but the keeping him with knowledge of his vicious propensity," 24 although in a number of states the courts have held the owner liable on the ground of negligence in keeping the vicious beast. But the weight of authority is as stated. The owner of a dog will not be liable for injuries done by it, unless it be shown that such owner had knowledge of the viciousness in the dog; such animals being harmless ordinarily. The same would be true regarding horses.25

22 Nichols v. Marsland, L. R., 10 Exch. 255 (Eng.).

23 Cooley, Torts (student's ed.), p. 350; Parsons v. Manser, 119 Ia. 88,

93 N. W. 86, 97 Am. St. Rep. 283, 62 L. R. A. 132, and note.

24 Cooley, Torts (student's ed.), p. 345.

25 Street, Foundations of Legal Liability, vol. I, p. 54; Bigelow, Torts (8th ed.), p. 458.