McKinney v. Cochran
| Decision Date | 05 November 1966 |
| Docket Number | No. 44548,44548 |
| Citation | 419 P.2d 931,197 Kan. 524 |
| Parties | Earl L. McKINNEY, Appellant, v. Howard COCHRAN, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In reviewing an order sustaining a motion for a directed verdict the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon the motion must be denied and the matter submitted to the jury.
2. In an action for damages based on negligence where no showing is made of any act or omission from which negligence can be inferred by reasonable minds there is no submissible issue for the jury, and in such case it becomes the duty of the court to remove the issue from the jury.
3. With respect to an animal not naturally vicious, the general rule is that the owner of such animal is not answerable for injuries done by it when in a place where it had a right to be, unless it was in fact, and to the owner's knowledge, vicious or dangerous.
4. In an action to recover for personal injuries sustained when a horse owned by defendant fell while being ridden by plaintiff at defendant's farm, the record is examined and it is held that defendant's motion for a directed verdict at the conclusion of plaintiff's evidence was properly sustained.
Payne H. Ratner, Jr., Wichita, argued the cause and Payne H. Ratner, Louise mattox, Cliff W. Ratner, R. R. Barnes and Jim Lawing, Wichita, with him on brief for appellant.
Benjamin C. Langel, Wichita, argued the cause and George B. Powers, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Gerald Sawatzky, Donald L. Cordes, Robert L. Howard, Charles J. Woodin, Mikel L. Stout and Phillip S. Frick, Wichita, with him on brief for appellee.
This is an action for personal injuries sustained when a horse owned by defendant fell while being ridden by plaintiff at defendant's farm.
At the conclusion of plaintiff's evidence defendant's motion for a directed verdict was sustained. Plaintiff has appealed.
Highly summarized, the petition alleged that defendant lived on a farm and was the owner of a 12-year-old mare which weighed approximately 1,200 pounds. He was well acquainted with the character and disposition of the horse and knew that it was not a trained stock horse and had not been ridden regularly for that purpose.
On February 17, 1963, defendant invited plaintiff to his farm home for the purpose of inspecting and riding the horse. Plaintiff had never ridden it before and he was unfamiliar with the condition of defendant's farm premises. Defendant assured plaintiff that the mare was an agile and well trained stock horse. Plaintiff agreed to inspect and ride the horse and give his opinion as to its general quality as a stock horse. Plaintiff inquired as to the footing in the area adjacent to defendant's home and was assured the ground was secure and would provide good footing for the horse, even though it was not shod. Plaintiff mounted the horse and walked it into the adjacent area. It was his intention to check its ability to make turns in the manner of a trained stock horse. In the process of making a turn the horse moved its feet in an awkward manner and slipped on a concealed area of frozen ground. It fell on plaintiff's leg, resulting in severe injuries.
In was further alleged that defendant was negligent (1) in assuring plaintiff that the riding area near his farm home provided secure footing and contained no hidden hazards; (2) in failing to warn plaintiff that the horse was awkward and untrained and at least 12 years old and incapable of making the quick turning movements that are expected of stock horses; (3) in failing to inspect his farm premises for concealed hazards prior to inviting plaintiff to ride the horse, and (4) in failing to select a proper area on his farm for testing the riding qualities of the horse.
The answer denied generally, and alleged--
Plaintiff and defendant were close friends and shared a common interest in horses. On February 17, 1963, plaintiff and his wife were guests of defendant and his wife at defendant's farm home for social purposes. Plaintiff and defendant had been discussing defendant's recent purchase of the horse in question. Plaintiff, an experienced horseman, mounted the horse and started to ride it. The horse stumbled and fell, apparently due to the presence of ice below the surface of the ground. If defendant was guilty of negligence-which was denied-plaintiff, being an experienced horseman and intimately familiar with the training of horses in general, knew that a horse on any given occasion might lose its footing and that plaintiff was in as good position as defendant to know the condition of the ground and was negligent in directing the horse to make sudden movements under the conditions existing. In the alternative, it was alleged that the horse fell due to an unavoidable accident which could not have been foreseen or guarded against.
The reply denied generally.
The case went to trial before a jury.
The background of the situation, and the actual facts of the incident as related by plaintiff's evidence, are as follow:
Plaintiff and defendant were railroad workers and had been friends for years. They had had many business dealings with each other involving cattle and machinery. As a sideline, plaintiff was interested in horses and, in fact, considered himself an 'expert' on the subject. He had ridden horses since childhood and had 'grown up on ponies' and had worked with horses and cattle most of his life. He had been a member of the Kansas Cutting Horse Association since 1956, and currently was president of the organization. A 'cutting horse' is a horse trained to separate cattle from a herd. Over the years plaintiff had entered cutting horse contests and had won numerous titles and prizes. He was an...
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