Cockerham v. Nixon

• Decision Date: 31 August 1850
• Citation: 33 N.C. 269,11 Ired. 269
• Court: North Carolina Supreme Court
• Parties: JOSEPH COCKERHAM v. JOHN NIXON.

11 Ired. 269

33 N.C. 269

JOSEPH COCKERHAM

v.JOHN NIXON.

Supreme Court of North Carolina.

August Term, 1850.

As soon as the owner of an animal knows or has good reason to believe, that he is likely to do mischief, he must take care of him and be responsible for any injury that he may inflict; and it makes no difference, whether this ground of suspicion arises from one act or from repeated acts.

The act done, however, must be such as to furnish a reasonable inference, that the animal is likely to eommit an act of the kind complained of: this is a matter to be decided by the jury and not by the court.

Appeal from the Superior Court of Law of Surry County, at the Spring Term 1850, his Honor Judge DICK presiding.

H. C. Jones, for the plaintiff .

Boyden, for the defendant .

PEARSON, J.

This was a case, for an injury done to the plaintiff's horse by the defendant's bull. The plaintiff proved, that a bull of the defendant, while running at large, gored his horse and killed it. One Cannady swore, that before the horse was killed, he was giving salt to a cow, when the bull came up-- whereupon the bull made after him and forced him to jump on a fence near at hand, and he stated these facts to the defendant and told him, he would have shot his bull, if he had had a gun.

The Court charged, that it was not necessary to shew, that the defendant had knowledge of a vicious habit of the animal by proof of many acts, but that knowledge of one vicious act, shewing him to be dangerous, would be sufficient to render the defendant liable, and that the testimony of Cannady did bring home to the defendant such a knowledge of the vicious propensities of the animal, as would require him to prevent the animal from going at large, and, so far as this point was involved, the jury would be authorised to find for the plaintiff.

The defendant excepts to this charge. We concur in the general proposition, that the allegation in the declaration, that the bull had a vicious habit and was accustomed to do mischief, which was known to the defendant, may be sustained by proof of a single act, provided it be of such a nature and is committed under such circumstances, as to satisfy the jury, that the animal was vicious and too dangerous to be allowed to go at large. Such fact coming to the knowledge of the owner, is notice sufficient to put him in the wrong, and make him liable for the consequences of his neglect to keep the animal confined.

The cases cited by the plaintiff's counsel fully sustain this position, Jenkins v. Turner, 1 Ray. 109, 3 Car. & Pa. 138. 1 Bar. & Ald. 620, 1 Holt 617 Leigh nisi prius 552. Buller nisi prius 77. 2 Esp. Rep. 482. One act may sometimes furnish as convincing proof of the viciousness of an animal as a...