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ROWLANDS v. WATT.l«»®-
C. R., Kandy, 4,874.and Octobers.
Brute animal—Injury by it on its owner's premises to animal trespassingthereon—Inability of owner.
To have a savage dog not under proper control on one’s own.premises is not in itself a culpable act. It becomes so if tho dogattacks a person or animal being lawfully on the premises. Where,therefore, a fowl was found not lawfully on the premises of theowner of a dog, but trespassing theleon, and was killed by the dog,not being encouraged thereto by its owner or his servant, its ownerwas not liable in damages' to the owner of the fowl, although thedbg was not at the time under proper control.
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*jpHE facts of the case appear in the judgment.Domkorst, for appellant.
Van Langenberg, for respondent.
5th October, 1896. Withers, J.—
The simple facts of this case are these. The first defendant’sdog killed the plaintiff’s fowl. It had killed a fowl before, andin this respect was a dog of savage disposition. On the day. whenthis happened the fowl was in the church premises, where thepastor, who is the owner of the dog, resides. The premises are inthe pastor’s control. The dog was lawfully on the premises occupiedby its master. The dog was being led on 3 chain by a youngboy, who was not strong enough to keep the animal in check.The dog broke away and killed the fowl on the church premises.
The plaintiff’s fowl was out of bounds, and was not lawfully onthe church premises at the time it was killed by the dog.
To have a savage dog not under proper control on one’s ownpremises is not in itself a culpable act. It becomes so if the dogattacks a person or animal being lawfully on the premises.
In this case the dog was not under proper control, but the fowlwhich it killed was trespassing.
Neither the owner nor the boy encouraged the dog to attack thefowl. Indeed, the latter tried very hard to hold the dog in check.Neither of the defendants invited the fowl to the premises. It wasthe fault (culpa) of the owner of the fowl that the fowl had escapedfrom its bounds and found its way into the church premises.
In these circumstances the Commissioner has adjudged thefirst defendant to pay the plaintiff Rs. 5 as. compensation for the- fowl. His reasons for this judgment appear to be that the premisesare not the first defendant’s private premises ; that letting hisfowl run loose cannot be regarded as negligence on the part of theplaintiff, and that sufficient care was not taken to prevent thedog doing harm. But I differ from the Commissioner in thatI think the plaintiff was to blame for letting his fowl run loose,as he expresses it, on the church premises.
From my point of view the plaintiff was culpable, and the firstdefendant and the boy were not culpable.
Hence the plaintiff had no cause of action against either of thedefendants..
Pomponius Bays it was a legal rule quod, quis ex culpa sua damnumsentit non inleUigitur damnum sentire (Dig. L. 4, T. XVII., r. 203),and this rule seems to me to fit this case.
I therefore set aside the judgment and dismiss the plaintiff’saction with costs.
ROWLANDS v. WATT