Anderson v. Anderson

• Decision Date: 03 September 1918
• Docket Number: 4269
• Citation: 168 N.W. 852,41 S.D. 32
• Parties: ELSE ANDERSON, Administratrix of the Estate of Ludwig C. W. Anderson, Plaintiff and Respondent, v. S. C. ANDERSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

41 S.D. 32

168 N.W. 852

ELSE ANDERSON, Administratrix of the Estate of Ludwig C. W. Anderson, Plaintiff and Respondent, v. S. C. ANDERSON,

Defendant and Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Spink County, SD

Hon. Alva E. Taylor, Judge

#4269--Affirmed

Sterling & Clark

Attorneys for Appellant.

Hanten, Hanten & Gault

Attorneys for Respondent.

Opinion filed Sept. 3, 1918. Rehearing denied November 4, 1918

POLLEY, J.

Plaintiff is the surviving widow of Ludwig Anderson, deceased, and is administratrix of his estate. Decedent was killed by a bull owned by defendant, and this action is brought to recover damages occasioned by the death of said decedent.

Plaintiff states her cause of action in two separate counts. In the first, she alleges that the bull was vicious and known to be vicious by defendant, without alleging any negligence on the part of defendant other than the keeping of the bull after defendant had knowledge of his vicious and dangerous tendencies. In the second count, plaintiff alleges that defendant, as owner of the said bull, "failed and neglected to provide and maintain a good, proper, and sufficient stall ... to control and safely keep said bull, and otherwise failed to take proper precautions to prevent said bull from doing injury," and that, as a result of said negligence, said bull was permitted to attack and kill the decedent.

The defendant, in his answer, admitted the ownership of the bull, but denied any negligence on his part, and denied that he had knowledge that said bull was vicious or dangerous or that said bull in fact was vicious, and alleged that said bull was quiet and tractable, and that he could be safely handled and managed, and that he had never shown any dangerous or vicious tendencies. He further alleged that he had provided all necessary, proper, and convenient means whereby said bull could be safely handled, managed, and controlled, and, by way of affirmative defense, defendant alleges that any injury that had been caused to said decedent by the said bull was the result of carelessness and negligence on the part of said decedent. The case was tried to a jury. Verdict and judgment were for plaintiff, and defendant appeals.

It is the theory of the plaintiff, as stated in the first count of her complaint, that a person keeping a bull or other animal known to be of vicious tendencies is liable for such injuries as may be caused by such animal, regardless of the degree of care exercised by such owner in restraining and controlling such animal or the precautions taken by the owner of such animal to prevent its doing injury. We believe this contention is supported by reason and by the weight of authority. The rule is stated in Congress & Empire Spring Co. v. Edgar, 25 LEd 487, as follows:

"Whoever keeps an animal accustomed to attack or injure mankind, with the knowledge of its dangerous propensities, says Addison, is prima facie liable to an action for damages at the suit of any person attacked or injured by the animal, without proof of any negligence or default in the securing or taking care of the animal; the gist of the action being the keeping of the animal after knowledge of its mischievous disposition."

3 C. J. 88.

But this rule is subject to the following qualification: If the injured party is guilty of negligence that contributed directly to the injury, such negligence would be a defense to the action. Glidden v. Moore, 14 Neb. 84, 45 AmRep 98. That the bull in question in this case had developed a vicious disposition and was in fact a "dangerous animal" prior to and at the time of the injury is clearly shown by the evidence. The evidence is sufficient also to charge the defendant with knowledge of the vicious tendencies of the bull, if indeed he did not have actual knowledge of such fact. These facts unqualified are sufficient to establish defendant's liability for the injury. But it is contended by the appellant that the decedent had equal opportunity with defendant to know of the dangerous disposition of the bull, and in fact did know of such dangerous disposition, and that the injury was brought about by the negligence and want of ordinary care on the part of the decedent. A determination of these questions requires an examination of the circumstances existing at the time of the injury.

The bull was something over three years old at the time of the injury and had been owned by the defendant and kept on defendant's farm since he was a calf. The decedent was a farm hand, and had worked on said farm at intervals all of the time that defendant had owned the bull. During the times that decedent had worked on said farm, he had assisted in doing the chores, including the care of the bull. He appears to have had the same opportunity as had the defendant to learn the characteristics of the bull. The bull had shown signs of a bad temper and a vicious disposition for some months prior to the injury. This matter had been the subject of conversation in decedent's presence, and he was cautioned to be on his guard against the bull. Decedent appears to have attached little significance to this warning, and said he was on good terms with the bull and that he was not afraid of him.

The bull was kept...