"When damage is done by animals upon the owner's premises, a different question, or set of questions, may arise. The case will ordinarily turn upon negligence, and negligence of a special kind, to wit, with reference to the occupancy of the premises. The place where the damage was done may enter into the case; a bull may well be left at large in the owner's field, while a savage dog should not be. And then the character in which the person hurt entered upon the premises will have to be considered in determining the question of duty. Such person may have been 'invited' to enter; he may have been a trespasser; he may have been a mere licensee. The owner of premises obviously owes a duty to persons whom he induces to come there for his benefit, to wit, that they may do so safely so far as his own conduct is concerned; while towards others his duty may be very different. And in all these cases there may be a question of the effect of notice by the occupant, or knowledge by the person injured, of the state of things." 26

It is frequently a question whether the owner has had knowledge of the viciousness of his animal, and the general rule is that the notice must be such as to show the animal was likely to do the particular harm that was done. But notice that the animal has a propensity to do one kind of mischief, as that a dog worries sheep, has been held not to be notice to the dog's owner that it will attack human beings. So, too, notice that a horse is fractious will not impute knowledge that he will kick or bite. On the other 26 Bigelow, Torts (8th ed.), p. 459.

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hand, notice that a bull attacks and injures other animals is notice that he will also attack persons. The rule, as stated by an eminent authority, is: "The question in each case is whether the notice was sufficient to put the owner on his guard, and to require him to anticipate the injury which has actually occurred. It is not necessary that it be notice of mischief actually committed; it is the propensity to commit the mischief that constitutes the danger. And if the mischief is of a sort that animals of the kind are likely to commit at a certain season of the year as in the case of stallions-the owner should anticipate and guard against it without any special notice or warning."

The case of Hayes v. Smith28 will illustrate the liability of the owner for injuries caused by a vicious dog. The heirs of the late President Hayes kept upon the old homestead premises a watchdog, savage and vicious as to strangers and passers-by. The animal was usually kept chained or tied, but on the day of the injury was at large upon the premises. A Mrs. Smith was driving along the highway on one side of the Hayes premises, and the premises, on that side at least, were enclosed by a fence sufficiently high to keep an ordinary dog from the roadway. But the Hayes dog made his way over or through the fence as Mrs. Smith drove by, and bit her horse on the nose, frightening him so that he became unmanageable (the horse was ordinarily gentle and safe

27 Cooley, Torts (student's ed.), p. 346; Reynolds v. Hussey, 64 N. H. 64, LEADING ILLUSTRATIVE CASES.

28 Hayes v. Smith, 62 Ohio St. 161, 56 N. E. 879.

for a woman to drive), and Mrs. Smith was severely injured. It was shown that the owners of the dog knew it had on previous occasions rushed alongside the same fence, barking ferociously and trying to reach those traveling along the road, but it was not shown that the dog had ever before succeeded in escaping from the premises to the highway. The court held the owner of the dog liable for Mrs. Smith's injuries, but placed its decision upon the ground of negligence in not properly restraining the dog, rather than upon the general rule of liability for harboring a vicious animal, irrespective of negligence.

No distinction has been made in this treatment of the subject between the liability of the owner or keeper for the trespass, and for the damage other than trespass, of animals. There is little, if any, difference in the rules of law fixing the liability in either case. In those states which have not adopted the reformed procedure, actual knowledge of the vicious tendencies of an animal would call for a remedy by action on the case, rather than by action for trespass.

CHAPTER III.

LIABILITY FOR INANIMATE FORCES.

8. General principles. It is a general rule of law that a man must so conduct himself, and so use his property, as not to infringe upon the legal rights of others. Whenever he fails so to observe and respect the rights of other people, whether that failure take form as a positive act, or negatively, by omitting to act when it becomes his duty to act, or by putting into operation a chain of consequences which he can not or does not control, and which work injuriously to his fellow-men, he is liable, and must respond in damages. With reference to the last-mentioned act of negligence, it should be noted that, in order to render one liable in damages, it is not necessary that the initial act be illegal, in and of itself. But if that act be followed by consequences such as an ordinarily prudent or reasonable man would expect under the surrounding circumstances, then liability will attach for the damages resulting from such consequences. This was exemplified in the case of the owner of domestic animals permitting them to stray upon the highway. In the same fashion, and following a similar line of reasoning, the courts have declared him liable who collects or sets in motion inanimate forces which escape from his control and do harm. It is of such agents of harm, and the liability therefor, that this chapter will treat.

9. Liability for damage by fire.-Very early in the history of English law, the courts developed a rule holding one upon whose premises a fire started liable for damages due to its escape. And this rule was applied even in the case of one whose servant or guest had started the fire, or where its start had been due to pure accident." This rule took no account of the care or negligence exercised by the owner of the premises, but made him an insurer as to fire; if a fire started upon his property, no matter how, he must control and keep it there, or suffer the consequences. But this very strict, and undoubtedly .harsh, rule has been modified by statute or by judicial interpretation, or both, so that today, at least in this country, the question of liability for fire is a question of negligence. As in many other instances of negligence, the degree of care required of one who starts a fire or permits it to be started is correspondent to the danger involved. Thus, one who starts a fire must do so "at a proper time and in a suitable manner, and use 'reasonable care and diligence to prevent its spreading and doing injury to the property of others. The time may be suitable and the manner prudent, and yet if he be guilty of negligence in taking care of it, and it spreads and injures the property of others in consequence of such negligence, he is liable in damages for the injury done. The gist of the action is negligence, and if that exists in either of these particulars, and an injury is done in consequence thereof, the liability attaches, and it is immaterial whether the proof 29 Street, Foundations of Legal Liability, vol. I, p. 56.