Chisholm v. California Jockey Club

KAUFMAN, P. J.

Plaintiff, Walter E. Chisholm filed a complaint seeking damages for the death of his race horse, Romanticon, allegedly caused by the negligence of the defend-, ant, owner and operator of the Bay Meadows Race Track. Defendant appeals from a jury verdict in favor of the plaintiff on the grounds of certain prejudicial errors in the court’s instructions to the jury.

Defendant conducts horse races at Bay Meadows and invites owners of horses to stable their horses at the track and enter them in the races. No fee is charged for the stabling of horses. The defendant, however, retains as its profit, a portion of the sums wagered on the races. In the Fall of 1950, the plaintiff, through his trainer, Hank Ross, applied for and was assigned stable space for several of his horses at Bay Meadows. Before the beginning of the fall races, Romanticon, became ill and died on October 9, about three weeks after arriving at Bay Meadows. There was conflicting evidence as to whether Romanticon’s death was caused by a parasite commonly associated with colic which the horse had previously had or from gastroenteritis produced by fly-borne bacteria resulting from the unsanitary condition of defendant’s stables. There was also conflicting evidence on whether defendant had exercised ordinary care to maintain its stables in a sanitary condition, and whether defendant had adequately removed manure from the stables twice a week as required by city ordinance. The sufficiency of the evidence to sustain the verdict of the jury is not questioned.

Rather, defendant argues that the court’s instructions to the jury incorrectly stated the law. The first instruction complained of reads as follows:

‘ ‘ The violation of a statute or ordinance, except as to speed, constitutes negligence as a matter of law. Unless, however, such violation is a proximate cause of injury it becomes immaterial. There must appear to be a causal connection between the violation of law and the injury before it becomes material to the issue.”

Plaintiff introduced into evidence two ordinances of the city of San Mateo. Ordinance Number 350 in its terms declared to be “necessary as an emergency measure for pre

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serving the public health of the City of San Mateo.” The ordinance sets up specific requirements for the construction and maintenance of stables and the keeping of horses, mules or cattle within the city limits. The relevant portion of the ordinance, section 6, reads as follows: