Herzog

This is an action for damages for the death of plaintiff’s intestate alleged to have been caused by the defendants’ negligence. The appeal is from the judgment entered in favor of the defendants upon the sustaining of their demurrer to the complaint, the plaintiff having declined to amend it.

The complaint in substance alleges that the defendants were in possession of certain premises in San Francisco, and had the sole management and control thereof, including a tamale-stand, at which stand tamales were sold to the public. That Alfred N. Herzog, the deceased, entered the premises June 6, 1901, at about 10 o’clock in the evening to purchase tamales, and that he was accompanied by a friend, Miller. The complaint alleges that the deceased and his friend entered said premises by license and permission of the defendants; that while there Miller expressed the desire to visit the urinal on the premises, and the deceased volunteered to show him the way thereto, deceased knowing its location, and Miller never having visited it. That prior to the time of this accident the urinal had often been used by patrons of the premises by license and permission of the defendants, and its location was…