Marble v. Ross

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Morton, J.
• Citation: Marble v. Ross, 124 Mass. 44 (Mass. 1878)
• Decision Date: 08 February 1878
• Parties: Joel Marble & another, administrators, v. Austin Ross

124 Mass. 44

Joel Marble & another, administrators, v. Austin Ross

Supreme Court of Massachusetts

February 8, 1878

Argued September 17, 1877 [Syllabus Material]

Hampshire. Tort for personal injuries received by C. L Marble, the plaintiffs' intestate, from a castrated bull or stag owned by the defendant. Trial in the Superior Court before Allen J., who allowed a bill of exceptions in substance as follows:

There was evidence tending to show that the plaintiffs' intestate received the injuries complained of in the defendant's pasture, where he was at the time a trespasser; and that, at the time he went there, he knew that the stag was there, and understood that it was vicious. It was not contended that the defendant placed his stag in the pasture with any purpose of keeping off trespassers, or of having the stag frighten or injure any one.

There was conflicting evidence as to whether the injury was caused by the stag, and whether or not the stag was vicious and accustomed to attack mankind, and known to be so by the defendant; and this evidence was submitted to the jury under proper instructions.

The defendant asked the judge to rule and instruct the jury as follows:

"1. If the jury are satisfied that the plaintiffs' intestate was trespassing upon the defendant's pasture at the time of his injury, and received his injury while so trespassing, then, although the injury was caused by the defendant's stag, the plaintiffs are not entitled to recover.

"2. Although the jury may find that the stag of the defendant was ferocious and accustomed to attack mankind, and with the knowledge of the defendant, yet, if the defendant kept the stag in his own pasture, he would not be liable for any injury to a stranger trespassing upon the pasture without the knowledge of the defendant and without right.

"3. Although the jury may find that the stag was ferocious, with the defendant's knowledge, yet if the defendant put him into his own pasture without any intent or purpose of having the stag drive off trespassers or strangers, then the defendant is not liable for any injury to Marble occasioned while he was trespassing on the pasture.

"4. If the stag kept by the defendant was ferocious, and was confined and kept by the defendant in his own pasture, and if Marble went into the pasture, a trespasser, and with the full knowledge that the stag was there and that he was ferocious, then the plaintiffs cannot recover for any injury received during such trespassing.

"5. If the stag kept by the defendant was ferocious, and was confined and kept in the defendant's pasture without any intent of having the stag drive off, chase or injure people going on to the pasture, and if Marble went into the pasture with full knowledge that the stag was there and was ferocious, then the defendant is not liable for any injury received by Marble while he was so trespassing."

The judge declined to rule as requested, and instructed the jury as follows: "The defendant contended, in the first place, that Marble was a trespasser upon the pasture where the animal was kept, when the accident happened, and that as such he was a wrongdoer; in the next place, that he did not exercise the degree of care and prudence that it was required of him to exercise; that he went voluntarily, knowingly, into the presence of the alleged dangerous animal. The general rule applicable to that defence is this: If Marble was a wrongdoer himself, that does not necessarily deprive him of a right of action. Assuming that the defendant was a wrongdoer and kept a vicious animal which he knew to be vicious, if Marble was injured in consequence of some wrongdoing on his own part, it would not follow conclusively that he could not recover for the injury. That would depend upon the circumstances, upon the character and extent of the wrongdoing on his side. It is a practical question for you to determine, whether Marble was so to blame, did so bring this upon himself, as to deprive him of a remedy for the injury sustained. That depends, to some extent certainly, upon the degree of wrongdoing upon the one side and the other. So of the negligence; it depends upon the proportion, so to speak, between the wrong of the defendant in keeping such an animal and the negligence shown by Marble in putting himself in the way of it. Circumstances can be supposed in which the negligence, the wrongdoing of a party, of itself, would prevent him from recovering for an injury occasioned partly by his own act and partly by the wrong act of another. You could easily imagine negligence of a party that would prevent him from recovering for the consequences of like wrongdoing. You may suppose that a party has entered a house for a felonious purpose and is injured; he would not have a right of action for the injury, when if he entered for an honest purpose he would have. Suppose a person exposes himself voluntarily and wilfully to a dangerous animal, he would have no right to recover, when he would have had, if he had shown less wilful misconduct. Suppose, in a menagerie of wild animals, a man deliberately passes the bounds set, and wilfully puts his hand into a tiger's cage; you would say he ought not to recover, as there is a degree of wilful negligence amounting to misconduct. So you may say a person may show some degree of negligence, and yet so slight in comparison with the danger to which he is exposed by the wrongdoing of another, that it should not prevent him from recovering. If you find that he was a trespasser, that is to be taken into the account. How much weight is to be given to that is for you to determine upon the evidence. It is a circumstance to be taken into the account. It is a circumstance whether he was in the use of due and proper care; because a man who goes upon land as a trespasser has no right to expect that the owner of it will use the same precautions in regard to him as he would in regard to a person who goes by invitation. It is a circumstance to be taken into account in determining whether he was in the exercise of a proper degree of care.

"The defendant contends also that Marble, when he went into the pasture, had notice that the stag was there, and had notice of his vicious propensities. If you believe that Marble did go into the pasture under the circumstances, knowing this animal was there, this is to be considered by you in determining whether his act in so doing was of such a nature and character as to deprive him of any remedy for the injury received from the stag, whether it was of such a nature as would be likely to produce the injury, such gross carelessness, wanton carelessness, calculated to bring upon him this very injury. It certainly would be for you to hesitate...