1. This is an appeal from a judgment of the learned Subordinate Judge of Burdwan reversing the decision of the Munsif. The suit was brought by the plaintiff, who is the appellant, before us to recover Rs. 200 as damages for the injuries he suffered by reason of his having been bitten by a mischievious animal, to wit, a horse belonging to the defendant. The Munsif decreed the suit and awarded to the plaintiff Rs. 200 as damages. On appeal to the lower Appellate Court, the learned Subordinate Judge reversed that decision.
2. The first point is whether this was a vicious animal, and whether the defendant had knowledge of the propensities of the animal. The learned Subordinate Judge found that, on the admitted facts of the case, the horse had bitten three people on previous occasions, namely, twice a groom and, on one occasion, an outsider. Against this evidence, the learned Subordinate Judge held that that did not establish the fact that the animal was a vicious animal. That is a finding altogether contrary to the whole body of the evidence. On the admissions of the defendant, it is quite clear that this animal, in fact, was, a vicious animal and the learned Subordinate Judge ought to have so found on the evidence before him. The findings he has made are wholly unwarranted by the evidence.
3. The next point is 'did this horse bite the plaintiff?' The learned Subordinate Judge agreeing with the Munsif has found that it did, in fact, bite the plaintiff. But he has come to the conclusion that the defendant was not guilty of negligence. That is not necessary to support a suit of this nature. If the horse was a vicious animal, and if that fact was known to the defendant and knowing this he kept the horse, and if it injured the plaintiff, then the defendant must be held liable, notwithstanding that he has not been guilty of negligence. Negligence is not a necessary ingredient of a suit of this nature. Therefore, the finding of the Subordinate Judge that the plaintiff was bitten by the defendant's horse is prima facie sufficient to entitle the plaintiff to damages.
4. Then the learned Subordinate judge makes a finding that the plaintiff has been guilty of contributory negligence. What he means is difficult togather, but I suppose what he means is that the case comes under the maxim volenti non fit injuria, that the plaintiff deliberately placed himself in this position in trying to rescue his horse and, therefore, was bitten by the defendant's horse. There is nothing to show that the plaintiff so placed himself or that he was aware that the horse of the defendant was a vicious animal and that he incurred these injuries in his attempt to rescue his own horse well knowing that, if he did so, he would probably receive these injuries from the defendant's vicious horse.There is nothing to support any such finding and there is nothing to suggest that the plaintiff did, in fact, know that the defendant's horse was vicious. On the findings of fact, the learned Subordinate Judge ought to have, in my opinion, come to the same conclusion as the learned Munsif. We ought, therefore, to set aside the decree passed by the learned Subordinate Judge and restore the decree passed by the Munsif. The appeal will, therefore, be allowed, the decree of the lower Appellate Court will be set aside and that of the Court of first instance restored. The defendant must pay to the plaintiff his costs both in this Court and in the Courts below.
5. Teunon, J.--I agree.