The law has, however, been brought a
little nearer to actual experience by statute in many
jurisdictions.
Now let us go one step farther still. A man keeps an unbroken and
unruly horse, knowing it to be so. That is not enough to throw
the risk of its behavior on him. The [158] tendency of the known
wildness is not dangerous generally, but only under particular
circumstances. Add to keeping, the attempt to break the horse;
still no danger to the public is disclosed. But if the place
where the owner tries to break it is a crowded thoroughfare, the
owner knows an additional circumstance which, according to common
experience, makes this conduct dangerous, and therefore must take
the risk of what harm may be done. /1/ On the other hand, if a
man who was a good rider bought a horse with no appearance of
vice and mounted it to ride home, there would be no such apparent
danger as to make him answerable if the horse became unruly and
did damage. /2/ Experience has measured the probabilities and
draws the line between the two cases.
Whatever may be the true explanation of the rule applied to
keeping tigers, or the principle of Rylands v. Fletcher, in the
last cases we have entered the sphere of negligence, and, if we
take a case lying somewhere between the two just stated, and add
somewhat to the complexity of the circumstances, we shall find
that both conduct and standard would probably be left without
much discrimination to the jury, on the broad issue whether the
defendant had acted as a prudent man would have done under the
circumstances.
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