Bottcher v. Buck

• Decision Date: 16 October 1928
• Citation: 163 N.E. 182,265 Mass. 4
• Parties: BOTTCHER v. BUCK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 4

163 N.E. 182

BOTTCHER

v.BUCK et al.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 16, 1928.

Exceptions from Superior Court, Worcester County; E. T. Broadhurst, Judge.

Action by Olive Bottcher, by next friend, against Frederick E. Buck and others. Verdict for plaintiff, and defendants bring exceptions. Exceptions overruled.A. T. Wall, of Worcester, for plaintiff.

H. J. Nugent, of Worcester, for defendants.

SANDERSON, J.

This is an action of tort brought against the defendants, husband and wife, for negligence in keeping a bear which bit and injured the plaintiff, a child of four years, while she was on the defendants' premises in care of her grandfather. The defendants contend that the verdict should have been directed in their favor because of the plaintiff'scontributory negligence; and the defendant Eugenia Buck contends that there was not sufficient evidence to hold her as owner and keeper of the bear and that a verdict should have been directed in her favor on that ground. No other questions have been raised or argued.

The evidence tended to prove that Mrs. Buck cared for this and other bears on the premises; that she fed them and sometimes permitted them to take candy from her mouth; that about two weeks before the accident she told the plaintiff's grandfather that it was safe to feed the bears tied outside the enclosure but that they should look out for those that were in the cages; that she had charge of the candy and confectionery stand on the premises with signs bearing the words ‘Candy for the bears'; ‘Tonic for the bears'; that the candy with which the bear was fed on the day in question was sold by her; that on a previous occasion she had gone with the plaintiff and other members of her family and helped feed the bears. She was asked by a witness called by the plaintiff how business was, and replied:

‘Gas and oil is not very good. We make most of our money on confectionery, because we sell it for the bears.’

She was the owner of the real estate upon which the bears were kept and the business was carried on. Upon the evidence the question whether she was a keeper of the bear was one of fact for the jury. McLaughlin v. Kemp, 152 Mass. 7, 25 N. E. 18;Anderson v. Middle-brook, 202 Mass. 506, 89 N. E. 157;McIntire v. Leland, 229 Mass. 348, 351, 118 N. E. 665. Counsel for the defendants admitted that Frederick P. Buck was owner and keeper of the bear in question. The testimony justified the inference that the defendants invited the public to come upon the premises and buy gasoline, candy, and tonic, and to buy articles sold at the counter to feed the bears.

The defendants, by inviting the public upon the premises to trade, impliedly warranted that they were reasonably safe for the purposes for which they were arranged and adapted. Cruickshank v. Brockton Agricultural Society (Mass.) 157 N. E. 357. The owners or keepers of dangerous animals take the risk of so keeping them that they will not injure people invited upon the premises who are in the exercise of due care. The liability of the defendants for injuries by a bear kept by them does not depend on proving knowledge of previous acts showing a vicious disposition. Their negligence is in...