could be transmitted to the lungs and cause pneumonia. These cases which have been pressed upon the court are readily distinguishable from the facts in the instant case, as in these cases, the jury had no real evidence from which to decide from the plaintiff's testimony, which of two possible causes for the injury stated therein, was the proximate one from which the injury followed as the natural and probable result. The cases cited by the defendant state the long settled rule, and one in which the court, while in agreement therewith, holds is inapplicable in the disposition of the present case, to wit: that laid down in Bruggeman et ux. v. City of York, 254 Pa. 430, 98 A. 970, 971: "It is not enough for plaintiffs to show the injury complained of was due to one of two or more possible causes if defendant was responsible for but one of them. They must go further and show the latter cause was the proximate one from which the injury followed as the natural and probable result, and that the events leading up to the injury are linked in succession together as a natural whole without intermediate cause not attributable to defendant's wrongful act". The plaintiff has alleged only one cause for the injury here and that was the opening up of an old wound by the bite of the dog. True it is that a number of possible suggestions as to the cause of the injury were made by the defendant, to wit: that the plaintiff had cut the heel with a pocket knife and that rubbing and irritation of a shoe may cause the same or that the tissues break down by deterioration which caused the infection, but this cannot be passed on on a motion for judgment n.o.v. as these questions of fact were resolved by the jury in favor of the plaintiff. Accordingly, I feel there was sufficient evidence offered by the plaintiff in this case for a jury to pass upon.
The next question raised by the motion is that there was no negligence shown on the part of the defendant.
Counsel for the plaintiff tried the case not on the theory that the dog which bit the plaintiff had a vicious tendency but on the theory as offered in the complaint that the defendant did not provide a safe place for him to work. While the facts may be novel and while research has failed to disclose a similar factual situation in which the court held that the circumstances created an unsafe place for a seaman to work, I have no hesitancy in holding that a situation was created on board the vessel from which it was reasonably foreseeable that harm in some form or another would result to members of the crew by reason thereof. There was evidence that the dogs were not confined; that they had the run of the ship; that they would run across the bridge, the fore and after decks, in and about the crew's quarters, in the engine room, in the fireroom, and that they had snapped at members of the crew and had bitten an able-bodied seaman, and also that seamen were scared at night by reason of them, when they were taking over the wheel; that the sailors made complaint about the dogs and their conduct on board the ship on at least two occasions; and that the dogs on occasion would bite. As is stated in 3 Corpus Juris, page 93, § 323: "it is not necessary that the animal should be vicious to make the owner responsible for injury done by it through the owner's negligence. The vice of the animal is the essential fact, when, but for it, the conduct of the owner would be free from fault". See, also, 3 C.J.S., Animals, § 151. I feel that as has been stated in Storgard v. France and Canada S.S. Corp., 2 Cir., 263 F. 545 that the peculiar circumstances which are attendant upon a seaman's discharge of his duties require that the rules of common law respecting proof of the employer's negligence be not visited too vigorously upon seamen. Further in Farber v. Roginsky, 123 App.Div. 38, 107 N.Y.S. 755, 756, the plaintiff and defendant owned horses which they stabled in separate stalls, and the plaintiff's horse was injured by the kicking of the defendant's horse, which was not properly haltered. The lower court held that the defendant must be shown to have actual or presumptive knowledge that the horse had been guilty of such or similar mischief. The appellate court said: "The flaw in this conclusion is that the cause of action for negligence in such cases does not necessarily require proof of scienter, but it may also rest upon mere failure of the owner to exercise due care in the keep of the horse. Moynahan v. Wheeler, 117 N.Y. 285, 22 N.E. 702; Mills v. Bunke, 59 App.Div. 39, 69 N.Y.S. 96; Dickson v. McCoy, 39 N.Y. 400".In Goodman v. Gay, 15 Pa. 188, 53 Am.Dec. 589, a child was kicked by a horse which was permitted to run loose on the city streets by its owner. In upholding a verdict for the plaintiff (page 194 of 15 Pa., 53 Am.Dec. 589) the court said: "The gist of the action is, that the defendant did an act, not sanctioned by law nor custom, from which he must have known injury might result. * * * In other words, the defendant was guilty of negligence, and the plaintiff was guilty of none; and therefore the defendant is liable to the action, without proof that he knew the animal was vicious."
I feel that the bite by the dog of the plaintiff in view of the circumstances which existed on the ship with relation to it and the other dogs there on board and the fact that the circumstances were brought home to the responsible officers on the ship made the episode clearly foreseeable and that it was a matter that a reasonably prudent person would under the circumstances anticipate as likely to happen -- a legal requirement requisite for recovery. Milwaukee, etc., v. Kellogg, 94 U.S. 469, 475, 24 L. Ed. 256; Johnson v. Kosmos Portland Cement Co., 6 Cir., 64 F.2d 193.
It has been urged upon the court that if this verdict is permitted to stand the traditional ship's mascot must become a thing of the past, since from time immemorial seamen have taken their pets along to sea with them, to overcome the loneliness of their idle hours. The result reached in this case will in no wise trespass the traditional right of seamen to have mascots or pets aboard their ship, but only lays down the requirement that owners of vessels shall require that they be so restrained that they will in no wise make the occupation of the seamen more hazardous and that such control be had over them as to provide a safe and proper place for the performance of the seamen's duties.
Motion for judgment is denied.
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