Harris v. Breezy Point Lodge, Inc., 35813

• Decision Date: 23 January 1953
• Docket Number: No. 35813,35813
• Citation: 56 N.W.2d 655,238 Minn. 322
• Parties: HARRIS v. BREEZY POINT LODGE, Inc.
• Court: Minnesota Supreme Court

Page 655

56 N.W.2d 655

238 Minn. 322

HARRIS v. BREEZY POINT LODGE, Inc.

No. 35813.

Supreme Court of Minnesota.

Jan. 23, 1953.

Syllabus by the Court.

1-2. In action against owner of a riding stable to recover damages for personal injuries sustained in fall from a horse allegedly caused by defendant's negligence, evidence considered and Held sufficient to support a verdict for plaintiff on the two theories of negligence submitted to the jury by the trial court, namely:

(1) Did the horse have a disposition or propensity to balk and rear up, did defendant have notice of such disposition, and, if so, was defendant negligent in giving the horse in question to plaintiff considering defendant's knowledge of the extent of her riding experience?

(2) Did defendant's stable manager and riding instructor, at the time of or leading up to the accident, conduct himself negligently and thereby cause the horse to act in such a manner that plaintiff was thrown from him?

3. Since proof of the horse's dangerout tendencies was a necessary element of plaintiff's cause of action, trial court's admission of evidence concerning such tendencies was not error where court required that such evidence be followed by evidence of defendant's knowledge of horse's dangerous tendencies.

4. Plaintiff's cross-examination of defendant's stable manager and riding instructor concerning the use of an English saddle for plaintiff's riding instruction and her counsel's comments in his closing argument relative thereto considered and Held not improper under circumstances of the case.

5. Alleged misconduct of plaintiff's counsel during trial and in his closing argument considered and found to present no grounds for reversal.

6. Under the facts and circumstances presented, verdict Held not so excessive as to require a new trial.

Sexton, Tyrrell & Jardine, St. Paul, for appellant.

Carl E. Erickson, S. G. Fitzpatrick, Brainerd, for respondent.

CHRISTIANSON, Justice.

Defendant appeals from an order denying its alternative motion for judgment notwithstanding the jury's verdict or for a new trial in a personal injury action.

Defendant, Breezy Point Lodge, Inc., operates a resort on Big Pelican Lake in Crow Wing county. In connection with its resort defendant maintains a stable to furnish riding horses for its patrons on an hourly rental basis. It also offers instruction in riding to its patrons who desire to take it. In early August of 1950 plaintiff, Ruby M. Harris, was a patron at defendant's resort and arranged with Ford Torkelson, an employe of defendant who was in charge of the stables, to take riding instruction during her stay at Breezy Point. During the five-day period preceding August 6, 1950, Torkelson had given plaintiff an hour of instruction each day. On all but the first day she had ridden a horse named Duke. On the afternoon of August 6, Torkelson again assigned Duke to her for further riding instruction. Duke was owned by Torkelson but was used by defendant at its stables, Torkelson and defendant sharing profits on a 50-50 basis. During the afternoon's ride, as Torkelson, plaintiff, and Torkelson's assistant were riding along a road running near the stable, Duke veered toward the stable, ran into a car parked beside the road, and raised up on his hind legs. Plaintiff fell from the horse and was injured. She brought action against defendant, Breezy Point Lodge, Inc., to recover damages for her injuries. The trial court submitted two theories of negligence to the jury for consideration:

(1) Did the horse, Duke, have a disposition or propensity to balk and rear up, did defendant have notice of such disposition, and, if so, was defendant negligent in giving that horse to plaintiff considering defendant's knowledge of the extent of her riding experience?

(2) Did defendant's employe, Torkelson, at the time of or leading up to the accident, conduct himself negligently and thereby cause the horse, Duke, to act in such a manner that plaintiff was thrown from him?

The jury returned a verdict in plaintiff's favor for the sum of $28,000.

Several of defendant's assignments of error turn upon the question whether there was evidence sufficient to support a verdict for plaintiff on the two theories of negligence submitted to the jury. The two questions of law raised thereby will be considered separately and in the order in which the issues of negligence were submitted by the trial court. In considering these questions we, of course, must view the evidence in the light most favorable to plaintiff.

1. There was evidence from which the jury could have found that on several occasions, when Duke's former owner and members of his family had tried to bridle Duke, the horse had developed a wild look, had become unmanageable and uncontrollable, and had reared up and run away; that others had similar trouble trying to bridle Duke; that one time Duke had reared up and fallen over backward, causing a rider to fall from his back; and that Duke was stubborn, balky, and unsafe for inexperienced riders. The jury could further have found from the evidence that the person who sold Duke to Torkelson had informed him that Duke was not safe for inexperienced riders and had been traded by a former owner, who lived only a short distance from Breezy Point, because his children could not handle Duke; that, before Duke was sold to Torkelson, Torkelson assured the seller he would ride the horse himself and use him to lead trail; that plaintiff was an inexperienced rider and was relying upon Torkelson's judgment when she agreed to ride Duke; and that she had informed Torkelson of her inexperience and reliance. From the above evidence the jury could properly have found that Duke had tendencies toward stubbornness and balkiness which made him dangerous to a rider of plaintiff's limited experience; that defendant, through its agent, Torkelson, had knowledge of plaintiff's inexperience and also had notice of Duke's dangerous characteristics, or at least such notice as would have made a prudent man inquire further into Duke's nature before permitting a rider of plaintiff's limited experience to ride him; and that defendant was therefore negligent in permitting plaintiff to ride Duke.

We have found no case in this state involving the hiring out of an allegedly dangerous horse by a riding stable. This court, however, has often decided the question of what notice of vicious tendencies one who keeps an allegedly vicious animal must have before he will be held liable to one injured by the animal. The rule in such cases is that he is negligent if he neglects to act so as to prevent the risk of damage when he has such notice of the vicious propensities as would put a prudent man on his guard. ¹ Many cases, some decided on a theory of breach of implied warranty rather than tort, adopt a stricter rule with regard to one who hires out a horse for riding than to one who keeps a vicious animal. These cases place a duty upon one who hires out a horse to make a reasonable effort to ascertain whether the horse has dangerous tendencies even though there are no circumstances which would warn a reasonable man that the horse may be dangerous. ² In other words, the mere fact that he knows he is going to hire out the horse for riding requires that he assure himself, at least insofar as he can do so by reasonable inquiry, that the horse is fit for that purpose. However, for the purposes of this decision, we need go no further than the rule applied by this court in the 'vicious animal' cases previously cited, because there was evidence here that defendant, through Torkelson, had notice of certain tendencies that might make Duke dangerous to an inexperienced rider and the jury could have found that such notice would have put a prudent man on guard.

There was also evidence from which the jury could have found that during the ride Duke swerved and headed straight toward a parked car and that, despite plaintiff's efforts to rein him out, he ran into or sideswiped the back end of the car and reared up, causing plaintiff to fall from his back and sustain injuries. From such evidence it could properly have found that it was a manifestation of Duke's dangerous tendencies which caused the accident, and, therefore, that defendant's negligence in permitting plaintiff to ride Duke was the proximate cause of her injuries. We find, therefore, sufficient evidence to support a verdict for plaintiff on the first theory of negligence submitted to the jury.

2. Examining the events leading up to the accident in the light most favorable to plaintiff, they appear as follows:

Previous to the day of the accident Torkelson had asked plaintiff to ride around the front of the lodge to make people aware of the riding facilities at the resort, but she had refused. On the day of the accident Torkelson asked her again, but plaintiff questioned her capability in view of her limited experience and the large crowd that would be there. Torkelson assured her that she was capable, and she then agreed. With Lewis, Torkelson's assistant, in the lead and Torkelson and plaintiff following in single file, the three riders went down in front of the lodge and then over a hardsurfaced road leading around to the stables. They were riding slowly, and the trip was completed without incident. At Torkelson's request plaintiff agreed to a second trip, and they proceeded around again in the same order. As they were going by the lodge the second time, Torkelson began to call to plaintiff's horse and told her to kick him in the side to make him go faster, but plaintiff refused because she did not want to ride faster. They were on a downgrade, and Torkelson had never before let her ride downhill faster than a walk. As they turned and headed uphill along the road which led past the stable, plaintiff was second in line, with Torkelson in the rear continuing to call, 'Duke, come on.' The horses' hoofs made such a clatter on the...