West Chicago Street Railroad v. Walsh

Mr. Justice Adams delivered the opinion of the court.

When appellee alighted from the car, the car having stopped at a safe place at which to alight, the relation of appellant to her as a common carrier, and its duty to her incident to such relation, ceased. ' Creamer v. West End Ry., 156 Mass. 320 ; Hutchinson on Carriers, Sec. 613.

When appellee alighted she was on the public highway; appellant had no control over her and owed her no duty as a carrier, and, as the owner of the horse which kicked her, owed her no duty beyond that which any stranger, being the owner of the horse, would have owed to another stranger on the public highway. The horses were lawfully on the highway, as was also the appellee. There is no evidence that the horse was of a vicious disposition, or that he had ever before kicked or injured any one. In Moss v. Pardridge, 9 Ill. App. 490 , the law is thus stated :

“ The distinction between the liability of the owner or possessor of animals kept for domestic use or convenience, animals mcmsuetes natures, such as horses, cattle, dogs and the like, and the owner or keeper of wild and savage beasts, feres natures, as lions, tigers, bears, etc., is well understood. In respect to the latter class, the owner is conclusively presumed to have notice that they are vicious and dangerous, and if he neglects to keep them properly secured, he is liable for injuries committed by them, without any proof of his knowledge of their viciousness; while, on the other hand, the owner of animals which, as a species, are domesticated, is not liable for injuries done by them, unless he is proved to have had notice of the inclination of the particular animal complained of to commit such injuries, there being no presumption that animals of that species are vicious or dangerous. Shearman & Redfield on Negligence, Sec. 188; May v. Burdett, 9 Q. B. 101; Vrooman v. Lawyer, 13 Johns. 339 ; Wormley v. Gregg, 65 Ill. 251 . It was, therefore, incumbent on the plaintiff to aver and prove 'knowledge on the part.of the defendant that the dog in question was of a vicious disposition and inclined to attack persons.” See also Cooley on Torts (2d Ed.), Sec. 342, top p. 403; Stumps v. Kelly, 22 Ill. 140 ; Mareau v. Vanatta, 88 Ib. 132.

The cases cited merely announce the common law doctrine that, in the case of injury to the person by domestic animals not naturally inclined to commit mischief, ft must appear, to warrant a recovery for the injury, that the animal had a mischievous propensity, and that the owner had notice thereof. We can not avoid thinking that the action was brought on the erroneous theory that appellant, at the time of the alleged injury, owed to appellee some duty as a common carrier, and that it would not have been brought had the horse been owned by some one other than appellant. We are of opinion that the evidence fails t'o prove negligence on the part of appellant, and that appellee, in -passing so close to the horse," after noticing that be was restive and uneasy, which she could have easily and without • inconvenience avoided, was not exercising ordinary care. These considerations' being decisive of the case, it is unnecessary to discuss other questions argued by counsel. The judgment will be reversed.