Us whippet owners can never picture our quiet and far from aggressive whippets causing harm other than ripping cloth toys and shows to shreds.
Well, in 1935 or so, a rabid whippet managed to make its way onto a Boston elevated railroad car. Apparently, neither passengers or train staff had seen the whippet get on the train.
Mrs. Fiske was was bitten by the unattended whippet.The whippet, which was lying on the floor before the time when it bit the plaintiff, was in sight of the defendant's employees, for the first time.
Because the dog was stray, with no identifiable owner, Fiske tried to sue the railway. The Supreme Judicial Court of Mass, decided the case as follows:
There was evidence tending to show that the plaintiff boarded a west bound center entrance car owned and operated by the defendant at Park Street and paid her fare.
Thereafter while a passenger on said car she was bitten by a medium sized unattended whippet dog, which had boarded the street car at the defendant's subway station at Scollay Square. The defendant's agents and servants in charge of said car did not know of the presence of this dog in the car until the time when the plaintiff was bitten. The defendant had a rule which provided that small dogs were allowed on cars provided they were not permitted to annoy passengers. At the time of the injury the dog was lying on the floor of the car near the plaintiff and suddenly, while she was looking at the dog, he jumped at her face. She put out her hand to protect herself and the dog bit her finger. It later turned out that the dog was rabid. The evidence was contradictory as to how many passengers were on the street car at the time of the accident.
Even if we assume, as we do not decide, that the defendant's rule in regard to dogs was some evidence that the presence of this dog in the car was a probable source of harm to passengers, though its dangerous propensities were unknown, its presence in the car without the knowledge or fault of the defendant's agents or servants would not warrant a finding of negligence. It does not appear that any of the defendant's agents or servants knew before the plaintiff was bitten that the dog was in the car. And there was no evidence from which it could have been inferred that, in the exercise of the requisite degree of care, they should have known. Neither the presence of the dog nor common knowledge of the way the defendant's cars were operated in the subway warranted such an inference. And there was no evidence of the circumstances attending the stopping of the car at the Scollay Square station, where the dog entered the car. Furthermore, though the report recites that the evidence was contradictory in regard to the number of passengers on the car at the time of the accident, nothing in the evidence reported — which is all the material evidence — tends to show that there were so few passengers that the dog when lying on the floor of the car was in sight of the defendant's agents or servants. Negligence of the defendant, therefore, was not shown to be the reasonably probable explanation of the plaintiff's injury.