Opinion
Rehearing Granted June 21, 1929
Appeal from Superior Court, Los Angeles County; Ruben S. Schmidt, Judge.
Action by Clarence W. Roberts against the Griffith Company. Judgment for defendant, and plaintiff appeals. Reversed, with directions.
COUNSEL
Brewton A. Hayne and Ernest M. Torchia, both of Los Angeles, for appellant.
Gibson, Dunn & Crutcher and Norman S. Sterry, all of Los Angeles, for respondent.
OPINION
DOOLING, Justice pro tem.
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 20 mules; that on October 24, 1926, at the hour of 10 o’clock p.m., defendant carelessly and negligently allowed about 20 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 370 of the Penal Code; that it thereupon became the duty of plaintiff, as a deputy marshal, to abate such nuisance and while engaged with two other deputy marshals in driving such mules from the streets plaintiff was thrown by such mules violently to the ground and his left leg broken, to his damage. The demurrer was both general and special.
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.
In Goodman v. Gay, 15 Pa. 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 run 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 the defendant did an act, not sanctioned by law nor custom, from which he must have known that injury might result."
To the same effect are Dickson v. McCoy, 39 N.Y. 400; Hardiman v. Wholley, 172 Mass. 411, 52 N.E. 518, 70 Am.St.Rep. 292; Baldwin v. Ensign, 49 Conn. 113, 44 Am.Rep. 205; Doherty v. Sweetser, 82 Hun, 556, 31 N.Y.S. 649; Wasmuth v. Butler, 86 Hun, 1, 33 N.Y.S. 108; Stern v. Hoffman Brewing Co., 26 Misc. 794, 56 N.Y.S. 188; Lyons v. Merrick, 105 Mass. 71; Drew v. Gross, 112 Ohio St. 485, 147 N.E. 757.
Respondent relies on the English case of Cox v. Burbridge, 13 C.B.(N.S.) 431, 143 Eng.Rep. 171, and the English cases following it, and the Indiana case, Klenberg v. Russell, 125 Ind. 531, 25 N.E. 596. The English cases hold that it is not actionable negligence to permit domestic animals to run at large on country roads. It does not at all follow that the same rule should apply to the streets within an incorporated municipality. Klenberg v. Russell extends the same rule to city streets. We refuse to follow the rule blindly in such fashion. It may well be that, in the absence of statutory restrictions, it is not unreasonable to permit domestic animals to run on country roads. Upon that question we do not need to express an opinion. 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. While the precise question has not come before our appellate courts, the early case of Ficken v. Jones, 28 Cal. 618, is instructive. In that case plaintiff was injured by a steer which was being driven with other cattle through Brannan street in San Francisco. There was no evidence that the cattle were wild, untamed, or vicious, or that defendants had cause to believe they were so, but the court held that defendants were nevertheless bound to exercise care in driving them for the safety of people on the streets, and would be liable for failure to do so, which resulted in injury to person, saying: "The driving of cattle through the streets of a city is attended with danger to persons who are of right there, and who can justly demand that the care, diligence and skill essential to their safety shall be commensurate with the necessities of the case." If the driving of cattle through city streets is attended with danger to persons, the permitting of them to wander untended is of necessity fraught with greater peril.
The real question in this case is whether the defendant could reasonably foresee that by allowing a band of 20 mules to be loose upon the streets an injury such as occurred to defendant might ensue. To that question there is only one reasonable answer. Any one 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 that it is impossible to foretell what trifle may throw them into a stampede.
We conclude that the complaint stated a cause of action as against the general demurrer, and it was error not to grant leave to amend.
Respondent urges, however, that the judgment should not be reversed because certain grounds of special demurrer, particularly as to the failure to specify the manner in which the accident to plaintiff occurred, were well taken, and plaintiff did not ask leave to amend. The record shows that the order sustaining the demurrer without leave to amend was made on March 18, 1927, and judgment of dismissal was signed and filed on March 22, four days later. There is nothing to show that plaintiff had notice of the order sustaining demurrer or any opportunity to move for leave to amend before the judgment was entered. The case falls within the rule laid down in Metzger v. Vestal, 76 Cal.App. 409, 418 244 P. 942, 945: "The rule that a party, against whom an order has been entered sustaining a demurrer without leave to amend, must ask leave to amend in order to have the ruling reviewed on appeal presupposes that the complaining party had an opportunity to ask such leave prior to the time of entry of judgment on the order. To hold otherwise would be to carry a technical rule to the extreme of absurdity."
Judgment reversed, with directions to the trial court to grant plaintiff leave to file an amended complaint.
We concur: TYLER, P.J.; KNIGHT, J.