Koser v. Hornback

• Decision Date: 18 January 1954
• Docket Number: No. 7909,7909
• Citation: 265 P.2d 988,44 A.L.R.2d 1015,75 Idaho 24
• Parties: , 44 A.L.R.2d 1015 KOSER v. HORNBACK et al.
• Court: Idaho Supreme Court

Page 988

265 P.2d 988

75 Idaho 24, 44 A.L.R.2d 1015

KOSER v. HORNBACK et al.

No. 7909.

Supreme Court of Idaho.

Jan. 18, 1954.

E. G. Elliott, Frank Langley, Boise, for appellant.

James W. Blaine, Boise, for Hornback.

Maurice H. Greene and Kenneth O'Leary, Boise, for Morgan.

TAYLOR, Justice.

Plaintiff, appellant, brought this action to recover for personal injuries sustained in a fall from a horse. The accident occurred July 10, 1949, at the Sulphur Creek Ranch in Valley County, Idaho. Horses were kept at the ranch for hire to guests, at a charge of $5 per day for each horse.

The defendants answered separately. The defendant Morgan admits that he is the owner of the ranch; denies all other allegations of the complaint and affirmatively alleges contributory negligence on the part of the plaintiff. The defendant Hornback alleges Morgan's ownership of the ranch, but alleges that Morgan was not the operator, or interested in the operation, of the ranch; that he, Hornback, as lessee operated the ranch 'in his own name and in his own behalf and for the purpose of entertaining paying guests and did maintain upon said ranch saddle horses thereon for the purpose of letting and hiring said horses to the public.' Hornback denies all other allegations of the complaint and affirmatively alleges contributory negligence on the part of the plaintiff.

At the close of plaintiff's evidence the defendant Hornback made a motion for a judgment of non-suit under subparagraph 5, § 10-705, I.C., which provides that a judgment of non-suit may be entered 'By the court, upon motion of the defendant when, upon the trial, the plaintiff fails to prove a sufficient case to entitle him to a verdict or judgment.' In making the motion Hornback's counsel, in addition to referring to the language of the statute, added, 'on the ground that the plaintiff hasn't made out a prima facie case by his evidence.'

The defendant Morgan joined in the motion 'on the ground that the plaintiff has failed to make out a prima facie case of actionable negligence; also on the ground that the plaintiff has wholly failed to make any proof or showing of relationship of principal and agency relative to the defendant Morgan so as to hold the defendant Morgan in any way legally responsible for the actions of the horse.

Appellant challenges the sufficiency of the motion in that it does not point out the particulars in which the evidence is held to be insufficient. This is a valid objection to the granting of the motion insofar as defendant Hornback is concerned. Davis v. Pancheri, 72 Idaho 28, 236 P.2d 716. The motion on behalf of the defendant Morgan may be regarded as sufficient insofar as it calls particular attention to the evidence on the issue of the relationship between himself and the defendant Hornback. The motion by Morgan being sufficient on this one important issue, and this court having reached the conclusion that the judgment should be reversed and the cause remanded for new trial, we will consider the sufficiency of the evidence as against the non-suit, and other questions likely to arise upon a new trial. § 1-205, I.C.

Both the trial court and this court, in reviewing plaintiff's evidence on motion for non-suit, must consider it in the light most favorable to the plaintiff. If there is substantial and competent evidence which, uncontradicted, would justify reasonable men in concluding that plaintiff was entitled to prevail, then the non-suit should be denied. Or, if the evidence is such that reasonable men might draw different conclusions therefrom, as to the controlling issues in the case, then those issues should be submitted to the jury. Burt v. Blackfoot Motor Supply Co., 67 Idaho 548, 186 P.2d 498; McKee v. Chase, 73 Idaho 491, 253 P.2d 787, and cases there cited.

'A court may direct a verdict for a defendant only when, with all conflicting evidence disregarded and the plaintiff's evidence given all the value to which it is legally entitled, there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. Burgess v. Cahill, 26 Cal.2d 320, 321-322, 158 P.2d 393, 159 A.L.R. 1304.' McNeal v. Greenberg, Cal. App., 255 P.2d 810, at page 813.

The court may not weigh the evidence, or resolve the conflicts therein, or determine what conclusions should be drawn therefrom. That is the function of the jury, and the essence of a jury trial.

Viewed in the light required by the rule, the following may be considered a fair summary of plaintiff's case. On the morning of July 10, 1949, plaintiff with four companions arrived at the ranch intending to proceed from there by horseback on a fishing trip. Hornback and another, referred to as his 'wrangler', were on hand to receive plaintiff and his party. The horses previously arranged for were saddled and ready. The horse ridden by plaintiff was assigned to him by Hornback. Hornback and his wrangler loaded the fishing equipment, brought by the guests, upon their respective horses. Plaintiff and one Simpkins were in the rear as the guests started down the trail. After going a short distance, plaintiff discovered he had forgotten a metal tackle box containing tackle belonging to himself and Simpkins. He rode back to the barn, where Hornback put the tackle box in a gunny sack, tied a string around it, and handed it to the plaintiff, and this conversation occurred:

'At the time I [plaintiff] asked him: 'What is the matter, is the horse skiddish or something?' He said, 'No, there is nothing the matter, just sometimes it scares him a little bit to start out with.' So he then said, 'Just turn right down the trail--start down the trail and hang it on the saddle horn.''

Plaintiff proceeded back along the trail and having gone about one hundred yards he hung the sack containing the tackle box on the saddle horn, and the sack containing the box either fell or rolled against the horse's neck. Whereupon the horse jumped, dislodging plaintiff from the saddle and he fell to the ground. His right foot being caught in the stirrup, he was dragged for some distance over rough, stumpy ground and kicked by the horse.

On cross-examination, plaintiff testified as follows:

'Q. As soon as you put it over the horn why the horse tossed you? A. Well, not right instantly, no.

'Q. It was a little bit later? A. It jumped out sideways and put me over on one side and I didn't quite get back in the saddle when I hit him on the shoulder again and he jumped.

'Q. The tackle box hit him on the shoulder? A. Yeah, and I lost one of the reins and he got his head down and started to buck.

'Q. When you were getting ready to place this tackle box on the horn of the saddle did it make rattling noises? A. It didn't.

'Q. Didn't make any noise at all? A. It didn't.

'Q. Did it make any noise after you had it on the saddle? A. No, sir, it just went ahead of the saddle and touched him on the shoulder.

'Q. Hit him on the shoulder? A. Yes.

'Q. That is where you dropped it after you got it over the horn? A. That is where I got if off of.

'Q. That is what made him buck when you struck him on the shoulder? A. No, sir.

'Q. What made him buck? A. He was bucking when I was still on there and I got it off the saddle horn.

'Q. As I understand your testimony, you put it on the horn? A. That is right.

'Q. And dropped it and when you put it down by the side it hit his shoulder and be bucked? A. I didn't drop it down by the side.

'Q. You laid it? A. Laid it there.

'Q. And it hit his shoulder? A. Yes.

'Q. And he bucked? A. Yes.

'Q. That is the reason he bucked, and that is the reason you went off, right? A. Yes, sir.'

The cross-examination further developed that plaintiff was born and reared to the age of fifteen on a farm where there were cattle and horses. Since that time and in recent years he has owned one horse and has made many hunting and fishing trips by horse.

Contributory negligence was not one of the stated grounds of the motion for nonsuit. However, the court in ruling on the motion said, 'The evidence of the plaintiff clearly shows contributory negligence in the handling of the horse.' It may be that the court, regarding the plaintiff as an experienced horseman, concluded that he was negligent in permitting the tackle box to strike the horse's neck. Contributory negligence is governed by the same rule applicable to negligence asserted against a defendant, and is generally a question for the jury, and may be made the basis of a nonsuit only where reasonable minds could reach only one common conclusion, that the plaintiff was guilty of negligence which contributed to his injury. Stowers v. Union Pac. R. Co., 72 Idaho 87, 237 P.2d 1041.

In Kersten v. Young, 52 Cal.App.2d 1, 125 P.2d 501, 503, the plaintiff had been warned, "He is a high-spirited horse, but he will give you a good ride." And the keeper would not permit the plaintiff's sixteen-year-old daughter to ride the horse. Plaintiff was injured by a sudden turn of the horse. It was urged that the rider was negligent in accepting the horse after being thus forewarned. The court in discussing the issue said:

'The question presented, therefore, is would a person situated in appellant's position, possessing ordinary prudence, knowing what he knew and seeing what he saw, have used greater caution than he used and refrained from mounting or riding the particular horse in question?' 125 P.2d at page 504.

and after discussing the facts, said further:

'The decision must be left to the triers of fact where different conclusions may reasonably be drawn by different minds from the same evidence. In the instant case it is clear to us that whether the situation in which he found himself was such as to impress upon the mind of appellant the danger incident to his mounting or riding the horse proffered by defendant, was for the jury to decide as a controverted issue of fact. Except in those cases in which, judged in the light of common knowledge and experience, there is a...