280 P. 199 | Cal. Ct. App. | 1929
From a judgment of dismissal, entered pursuant to an order sustaining defendant's demurrer to plaintiff's complaint without leave to amend, plaintiff appeals.
The complaint, in substance, alleges that Lynwood is a city of the sixth class and plaintiff was and is a deputy marshal thereof; that defendant was and is a corporation, chiefly engaged in doing street work, and in connection therewith owned more than twenty mules. That on October 24, 1926, at the hour of 10 o'clock P.M., defendant carelessly and negligently allowed about twenty of its mules to run at large, without a keeper or other supervision, upon the public streets of Lynwood, thereby creating a public nuisance by unlawfully obstructing the free passage and use in the customary manner of said streets in violation of section
[1] It is not contended by respondent that under the circumstances alleged in the complaint plaintiff was not acting in the performance of his duty in endeavoring to remove the mules from the city streets; but respondent does contend that no actionable negligence is pleaded because there is no allegation that the mules were vicious or of scienter on the part of respondent, and that the negligence, if any, in permitting them at large was not the proximate cause of appellant's injuries. With these contentions we cannot agree. While there is a conflict of authority on the subject in the various jurisdictions, we are satisfied that the better rule is that it may be actionable negligence to permit horses or mules to run at large and untended on the streets of a municipality regardless of their vicious character or of scienter. *458
In Goodman v. Gay, 15 Pa. St. 188 [53 Am. Dec. 589], the court said: "The owner has no right, either by law or custom, to turn a horse loose in the streets of a city. All men know that a horse which has been stabled and well fed will, when turned out, run and plunge, and become dangerous in the midst of people. If one man has the right to turn out his horse, every man has the same right; and if the one-fourth of people who own horses in a city would turn them out on the streets, not only the women and children, but even the men would have to abandon them.
"There is no reported case in which it was held that a person who turned out his horse in the streets of London or New York was not answerable, if he ran over a child or a woman, unless the owner knew, when he turned him out, that he was vicious and prone to kick. But I may say that all horses are, when turned loose, more or less dangerous in confined streets; and all men know this. The gist of the action is that defendant did an act not sanctioned by law or custom, from which he must have known that injury might result."
To the same effect are Dickson v. McCoy,
Of similar import are the following cases holding that it is actionable negligence to leave a horse or team untethered and unguarded on a public street: Bowen v. Flanagan,
Respondent relies on the English case of Cox v. Burbridge,
13 Com. B. (N.S.) 431 [143 Eng. Rep. 171], and the English cases following it, and the Indiana case of Klenburg v. Russell,
With this criticism of the principle of Cox v. Burbridge and those cases which have followed it we fully agree. It would be intolerable to permit such animals as horses, mules and cattle to roam untended and untethered on the public streets of incorporated cities and towns without holding the owners liable for the natural consequences of their being so at large.
While the precise question has not come before our appellate courts, the early case of Ficken v. Jones,
The Supreme Court of Ohio in Drew v. Gross, supra, said of a horse at large on the highway: "What ordinary care demands depends always upon the circumstances of the case, and a primary factor among those circumstances is the fact whether the injury could or could not have reasonably been anticipated from the acts done or left undone by the defendant."
[2] The real question in this case is whether the defendant could have reasonably foreseen that by allowing a band of twenty mules to be loose upon the streets an injury such as occurred to plaintiff might ensue. To that question there is only one reasonable answer. Anyone who has had experience with animals in herds or bands, however docile they may ordinarily be, must know the danger attendant upon frightening, alarming or startling them and must equally know how unaccountable their actions may sometimes be.
We conclude that the complaint stated a cause of action.
[3] Respondent insists, however, that the judgment should not be reversed because it was urged as a ground of special demurrer that the complaint was uncertain as to how or in what manner the accident occurred. It is claimed that this ground of special demurrer was well taken and since plaintiff did not ask leave to amend the judgment must be affirmed. The complaint in this regard, after alleging that the mules were negligently permitted to be at large on the streets of the town, contains the following averment: "the plaintiff, without any negligence on his part, was by said mules, violently thrown upon the ground." Respondent's criticism of this allegation is that the verb "thrown" is too indefinite to indicate in what manner the accident occurred and would be perfectly consistent with the fact that appellant was attempting to ride one of the mules without saddle or bridle. We think this criticism is unduly hypercritical. Among the definitions of the verb "to throw" in Webster's New International Dictionary we find: *461 "To drive or impel by violence; to dash; force, to cause to fall; to prostrate; to cast down."
At least since the decision of Stephenson v. Southern Pac.Co.,
In Mix v. Yoakum,
No case relied on by respondent dealt with a pleading at all similar to the one here.
Judgment reversed, with directions to the trial court to overrule the demurrer.
Tyler, P.J., and Knight, J., concurred. *462