Fredrickson v. Mackey
| Citation | 196 Kan. 542,413 P.2d 86 |
| Decision Date | 09 April 1966 |
| Docket Number | No. 44401,44401 |
| Parties | Carla Lynn FREDRICKSON, a Minor by Carl A. Fredrickson, Jr., Her Father and Next Friend, Appellee, v. Joe MACKEY, Doing Business as Somerset Stables, Appellant. |
| Court | United States State Supreme Court of Kansas |
1. Negligence is never presumed but must be proven and shown to be the proximate cause of the injury complained of.
2. The duty of one who is in the business of furnishing horses to others is to use reasonable care to furnish horses which are fit and suitable for the purpose for which they are to be used.
3. One undertaking to furnish horseback riding lessons to another does not thereby become an insurer against all possibility of injury or accident or against the results of all unforeseen untoward acts of the rider even though the rider be relatively young and inexperienced. He is bound only to use reasonable care commensurate with the circumstances.
4. In a damage action for personal injuries sustained by a minor plaintiff in a fall from a horse, the record of trial is examined and held to contain insufficient evidence to support a judgment for plaintiff.
Robert P. Anderson, Olathe, argued the cause, and Howard E. Payne, W. C. Jones, Keith Martin, and H. Thomas Payne, Olathe, were with him on the brief for appellant.
Bernis G. Terry, Olathe, argued the cause, and Roy S. Lowe, George A. Lowe, and Roy G. Lowe, Olathe, were with him on the brief for appellee.
HARMAN, Commissioner.
This action was by a minor for damages for personal injury resulting from a fall from a horse. Trial to the court resulted in a judgment for plaintiff from which defendant appeals.
In her petition plaintiff alleged in substance that on September 19, 1961, she was taking a riding lesson on a horse called Leather Britches owned by defendant and on his premises and under his supervision and control, and that while in a psture the horse suddenly ran away, throwing plaintiff to the ground breaking her arm. Defendant was charged with negligence in allowing plaintiff to ride a horse which was unmanageable by her outside the riding ring and in failing to give plaintiff proper instructions in the handling of the horse.
In his answer defendant denied negligence and alleged that the injury was caused in the following manner:
'The plaintiff Carla Lynn Fredrickson in company with other young people of her comparable age was taken with the group under the supervision of * * * Margo Thornhill out of the training ring for a ride in the open pasture of this defendant's premises; that the plaintiff rode her horse near a tree where she, the plaintiff, then broke off a small tree branchs; whereupon she leaned forward from her normal mounted position and attempted to feed the leaves on the branch to her horse; that the horse did not shy but did start to trot and the plaintiff thereupon lost her balance and fell from the horse; that the horse she was riding, Leather Britches, is a horse normally and commonly ridden by children and is considered gentle and a proper horse for children, although the plaintiff by reason of her length of training as aforesaid had developed her ability to the point that she could have ridden horses of a less gentler nature and had it not been for her own negligence and improper conduct in attempting to feed her mount as aforesaid and thereby failing to keep her own balance and her mount under control her fall would not have occurred, and whatever injuries the plaintiff suffered * * * were the direct result of the plaintiff's lack of due care. * * *'
The evidence reveals that commencing in the spring of 1961 plaintiff, a girl aged ten years, along with other children of comparable age, had been taking riding lessons at defendant's stables on horses furnished by him for which a fee was paid. An older person who was an 'associate' of the Mission Valley Pony Club acted as the instructor. Prior to the occasion in question, plaintiff had taken eight lessons at the stables, all of which had taken place inside a training ring near the barn, with plaintiff's mother as an observer. Her only other riding experience consisted of riding ponies elsewhere in a circle around a ring on two occasions. On September 19, 1961, plaintiff along with her mother and eight year old brother came to the stables for another riding lesson for the children. Five children, including plaintiff and her brother, rode out into a pasture adjacent to the training ring under the supervision of a Margo Thornhill, aged nineteen years, who had previously acted as instructor. The mother remained near the barn watching the children. Plaintiff was mounted on a horse called Leather Britches which she had previously ridden three or four times. Miss Thornhill took the children to a point in the pasture where there was shallow creek bed. She demonstrated a crossing and then told plaintiff to ride across the creek after her and to stand her horse and wait for the others. Plaintiff did this. While so waiting and still mounted plaintiff pulled a branch from a tree above her and leaned forward to put it under the nose of her horse for him to eat it, at which time the horse ran and plaintiff fell off breaking her arm.
The evidence offered by plaintiff to show the disposition of the horse consisted of the following testimony by plaintiff's mother:
'Q. Have they handled them pretty well, in your judgment, in the ring? A. They would have difficulty getting the horse to do what it was supposed to do even in walking or turning, or things like that. They had trouble.
'Q. And they couldn't get the horse to walk or they couldn't get it to stop, or what? A. Well, or to get it to turn or follow command. I don't just think that Carla could handle hers that well.
'Q. You felt Chris might be better able to do it than Carla? A. I think he was better on the horse than Carla was, yes. But not--
'Q. Well-excuse me. Go ahead and finish. A.--a whole lot better. But I felt he was doing some better.
'Q. It would be sometime they were taught to rein, weren't they? A. Yes.
'Q. This would be the time they would lay the rein over on the horse's neck and the horse wouldn't turn; is that correct?
A....
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