The opinion
Crockett, J., delivered the following dissenting opinion:
The plaintiff was bitten by the defendants’ dog, and sues to recover damages for the injury, and having obtained a judgment for five hundred dollars, the defendants moved for a new trial, which was denied, and he appealed to this Court. The proof shows that the dog was chained under the steps leading to the defendants’ house, in such manner that he could not reach any one ascending the steps; that the plaintiff, in entering the house upon a lawful business, was ascending the steps, when one of the steps, which was loose, slipped from its position, and the plaintiff’s leg went through the opening, when it was seized and bitten by the dog under the steps. If any negligence can be imputed to the defendants, it was in keeping the dog under the steps so loosely covered as to expose persons ascending the steps to accidents of this character. But no negligence is averred in the complaint, and the action is based on the theory that the owner of a dog, which he knows to be vicious and inclined to bite human beings, is bound, at his peril, so to keep him that no one shall be bitten by him, unless it be through the culpable negligence of the party who suffers the injury; On the other hand, the defendants claim that the owner is not responsible, if he takes reasonable precautions to prevent damage from the vicious qualities of the dog; and they claim that such precautions were taken in this case; that the *141 defendants were guilty of no negligence, and, consequently, are not responsible for the injury to the plaintiff. If the defendants’ proposition is correct, that the defendants were not responsible, except for negligence in the manner of keeping the dog, it is evident the complaint is not good, inasmuch as it avers no negligence on the part of the defendants. The only legal proposition, therefore, which was involved in the action was, whether or not, conceding that the defendants were free-from negligence, they were liable to the plaintiff for the damage which he suffered, and to which he did not contribute by his own negligence. The authorities are not uniform on this point, some of them holding that he who keeps a ferocious dog, knowing that he is accustomed to bite mankind, does so at his peril, and is responsible to any person who, without any fault on his part, is bitten by the dog, whether he was negligently kept or not. The following cases appear to support this proposition, or, at least, to lend some countenance to it:, (Buckley v. Leonard, 4 Den. 500 ; Auchmutz v. Ham, 1 Den. 495 ; Smith v. Pelah, 2 Str. 1264; McCoskill v. Elliott, 5 Strob. 198 ; Loomis v. Terry, 17 Wend. 496 ; Jones v. Perry, 2 Esp. 482; Norris Peak, 487 S. C.; Blackman v. Simmons, 3 Carr. & Payne, 138; Popperell v. Rine, 10 Cush. 509 .)
On the other hand, there are very respectable authorities which hold that every one has a right to keep a watch dog for the protection of his premises, and that he is only responsible for such damages as shall result from the negligent, keeping of the dog, and is not an insurer against injuries which may happen, notwithstanding all reasonable and proper care was used to guard against them. (Sarch v. Blackburn, 4 Carr. & Paine, 237; Curtis v. Mills, 5 id. 489.) In Ficken v. Jones, 28 Cal. 618 , the action was for damages caused by a steer which was being driven through the streets of Ban Francisco, and the Court held that the defendants were not liable unless they were guilty of negligence in the inode of *142 driving and managing the steer. I think the more reasonable rule is announced in Sarch v. Blackburn, supra, to the effect that every one has a right to keep a watch dog for the protection of his premises, and is only responsible for injuries resulting from negligence in the keeping. It may be conceded that no one has a right to keep upon his premises wild beasts of such strength and ferocity that no reasonable care or prudence would be a safeguard against injury from them. If one should see fit to keep upon his premises a tiger or a lion, or a dog known to be mad, he would doubtless be responsible for injuries caused by them, however carefully he might guard them. Such beasts are too dangerous to human life to be kept under the pretense of guarding the premises of the keeper from the intrusion of marauders. But dogs are not ordinarily of a dangerous and ferocious nature, and with reasonable care and prudence may be so kept as to render them usually harmless, and should not be subject to the same rule which applies to savage and ferocious beasts of an mitameable nature. In modern times they have become so domesticated, and are so subservient to the use of man, as to exclude them from the general rule, which is applicable to beasts of so savage and ferocious a nature that they can be devoted to no useful purpose, and cannot be kept except at the -imminent risk of human life. Whilst the majority of all domestic animals are usually tractable, docile, and harmless, a few of them are, nevertheless, vicious and dangerous. It is a well known fact that some of the most valuable horses for breeding and the turf have been , extremely vicious, dangerous, and unmanageable. It would be a harsh rule to hold that the. owner- of such animals must destroy them, on pain of being held responsible for any damage they may cause, however cautiously they may have been guarded to prevent the injury. If the owner of a savage and dangerous bull should have him in a perfectly secure inclosure, where he could do no possible harm, and if a *143 thoughtless or mischievous boy, without the knowledge or consent of the owner, should open the gate and turn him loose into a crowded thoroughfare, from which damages ensued, it would be a great hardship to hold the owner responsible for it. Whilst savage dogs may be somewhat more dangerous than vicious horses or cattle, they are nevertheless useful domestic animals, which every one has a right to keep; and whilst they may demand greater vigilance to prevent harm, this only involves the question of the degree \ of caution to be used, and does not affect .the question of their right to keep them, provided they use the proper care. If the earlier cases establish a different rlile, the interests of society demand that it should now be abrogated, considering ; the various useful purposes for which, Such animals are now employed.
On the trial, the Court ignored this view of the law in its instructions to the jury, and for this reason the judgment should be reversed. But inasmuch as the defendants were possibly guilty of negligence in keeping the dog under steps covered with boards ^either entirely loose, or so insecurely fastened as to be easily displaced by an accidental cause, from which negligence in so keeping the dog the injury to the plaintiff may have resulted, the plaintiff should be allowed' to amend his complaint. I think, therefore, the judgment should be reversed and the cause remanded for a new trial, with leave to the plaintiff to amend his complaint.
Mr. Justice Sprague did not express an opinion.