Brotemarkle v. Snyder

DRAPEAU, J.

Plaintiff was riding a motor scooter near the intersection of two streets in Los Angeles. A dog “unleashed and unattended . . . dashed into and collided” with plaintiff’s motor scooter. Plaintiff was thrown to the pavement, suffered painful and serious injuries. His hospital, bill was nearly a thousand dollars.

Complaint was filed in the superior court against the owners of the dog, alleging the collision and the injuries, and violation of a city ordinance which requires every person, owner of a dog, to keep the animal “exclusively upon his own premises.” The ordinance further provides that a dog may be off such premises if under the control of a competent person and restrained by a chain or leash.

Demurrer to the complaint was sustained. No amended complaint was filed within the time allowed by the court. Under the provisions of section 581(3) of the Code of Civil Procedure, the action was dismissed.

Plaintiff contends that pleading the accident, plus violation of the ordinance, states a cause of action. Defendants assert that the ordinance was adopted for the limited purpose of guarding the public against being bitten by dogs—not against collisions between dogs and vehicles; therefore, plaintiff does not plead himself within the class protected by the ordinance.

In the ease of

Satterlee

v.

Orange Glenn School Dist.,

29 Cal.2d 581, at page 590 [177 P. 2d 279], appears a fair statement of defendants’ position:

“But there is, of course, a further question in connection with the issue of negligence. Although a violation of a statute is not excusable under the particular circumstances of the case, liability is also dependent upon proof that a duty was owed to persons in the class of the plaintiff. ...”

The early case of

Siemers

v.

Eisen,

54 Cal. 418, has been cited and approved in California jurisprudence ever since 1880. (See

Hopper

v.

Bulaich,