Riding Academy v. Miller

• Decision Date: 07 March 1934
• Docket Number: 24239
• Citation: 127 Ohio St. 545,189 N.E. 647
• Parties: Troop A Riding Academy v. Miller.
• Court: Ohio Supreme Court

189 N.E. 647

127 Ohio St. 545

Troop A Riding Academy v. Miller.

No. 24239

Supreme Court of Ohio

March 7, 1934

Negligence - Ordinary risks incident to horseback riding assumed - Proof necessary of owner's knowledge of horse's dangerous tendencies - Directed verdict lies, in absence of evidence of unusual risks to horseback rider.

1. One who rides a horse, which he has hired for that purpose, takes the ordinary risks incident to such pursuit.

2. In order to recover for injuries received when a horse hired for riding runs and falls, one who sues in tort must show knowledge, on the part of the owner or his agents, of some trait, condition or propensity from which a probability of the horse's running away or falling might reasonably be inferred.

3. When there is no evidence of any known trait, condition or propensity of the horse, which would subject the rider to greater risks than ordinarily attach to horseback riding, it is error for the trial judge to submit such case to the jury. Defendant's motion for an instructed verdict should be granted.

On September 5, 1928, Edna Miller, plaintiff below, hired of Troop A Riding Academy, for the purpose of horseback riding a horse named "So and So." Troop A Riding Academy was an establishment which, as a regular business, furnished to its patrons saddle horses for riding.

Mrs. Miller, the wife of a physician, had patronized this establishment for a considerable time previous to the date in question, and had frequently ridden its horses. A few days previous to September 5th, she had been told by a groom, named Clark, that he had a good horse he would like to have her ride. When she came to the Academy on September 5th, Clark brought the horse from the stable and led him out to the arena, where Mrs. Miller mounted and proceeded to ride two or three times around the ring. She then brought the horse up to Clark and complained that she did not like the way the animal behaved, that he kept throwing his head about, up and down and sidewise, and that she thought she would get off. Clark made some little adjustment of the bit or the bridle, the exact nature of which is not disclosed, and told her he thought the horse was all right. Whereupon she started off again. After taking a few steps the horse broke into a run, and about halfway around the ring fell. Mrs. Miller was caught beneath him, and received severe injuries, for which she brings suit. She was confined to the hospital for a considerable period of time and alleges permanent injury.

The action filed in the Court of Common Pleas sounded in tort the plaintiff electing definitely to pursue this remedy rather than that of contract. The defendant, at the trial offered no evidence. At the conclusion of the evidence, the defendant moved the court for an order arresting the case from the jury and directing a verdict in its favor. This motion was overruled, to which ruling the defendant excepted.

After the judge had completed his charge to the jury, the defendant requested the court to charge "that a person incurs or assumes the usual and ordinary risks and inconveniences and dangers usually present in the mode of conveyance which he selects." This request was refused by the court, to which ruling the defendant excepted.

The jury returned a verdict for the plaintiff in the sum of $15,000. Upon motion for a new trial the court found that the verdict was not founded on passion or prejudice. The plaintiff, however, consented to a remittitur, whereupon the court overruled the motion for a new trial and entered judgment for $11,500 and costs, to which exception was taken.

The case was then carried to the Court of Appeals of Cuyahoga county, which affirmed the judgment of the court of common pleas.

A motion to certify the judgment of the Court of Appeals was allowed by this court, and the cause is here upon error to such judgment.

Mr. J. R. Kistner and Mr. R. H. Jamison, for plaintiff in error.

Messrs. Newcomb, Newcomb & Nord and Mr. Donald W. Hornbeck, for defendant in error.

BEVIS J.

The contentions of the plaintiff in error may be reduced to two:

(1) That there was no evidence upon which the jury might properly base a verdict for the plaintiff.

(2) That the trial court erred in refusing to charge the jury as specially requested by the defendant.

1. Was there any evidence to go to the jury? The claim of the plaintiff below that the defendant was guilty of fault or negligence rested entirely upon two circumstances; namely, that the horse upon being ridden into the arena persistently moved his head up and down and sidewise, and that the groom, Clark, told the plaintiff, after having adjusted the bridle, that the horse was all right.

Extensive questioning by counsel failed to add anything substantial to the foregoing statement concerning the movements of the horse's head; and the attempted characterization of those movements by the plaintiff as "vicious" and "nasty" and "mean" was properly excluded by the trial judge, as no statement of fact appears in the record to give foundation to these adjectives. The plaintiff did testify that the persistent shaking of the horse's head made her feel "uncomfortable," and it was this apparently which led her to make the statement to the groom that she thought she should dismount. Her feeling in this respect, however, was apparently not very strong, for she continued her ride after a trifling adjustment of the bridle and the bare statement by the groom that he thought the horse was all right.

Mrs. Miller reiterated in her testimony that she was not an experienced horsewoman. She was, however, not wholly inexperienced. She had ridden horses from time to time since childhood. She had frequently patronized this and other riding establishments in Cleveland. She fixed the number of times she had been at Troop A at from fifteen to twenty. She had ridden in the west on a ranch. She said she knew how to "post," and that "posting" was different from the western style of riding. She knew the difference between an English saddle and a western saddle. She knew what a martingale was, and, in general, she showed considerable familiarity with horses and the technique of riding.

The record is totally silent as to this horse's previous behavior. There is no evidence that he had ever moved his head in this fashion before that he had ever run away; that he had ever fallen; or that his health and physical condition were not good. The arena was covered with tan bark, which was wet, but there is no evidence that it was not in proper condition for riding.

There was no testimony of any kind that the movements of the horse's head, as described, were an indication that the horse was ill, or improperly saddled or bridled, or in any other way unfit for service.

Do the facts thus disclosed present a case for the consideration of the jury? Authority in Ohio upon the precise point in question is meager. It is hornbook law that negligence is not presumed in the absence of proof from which negligence may be inferred. In the absence of such proof, a party is entitled to the benefit of the presumption that he was free from negligence. Martin, Jr., v. Heintz, 126 Ohio St. 227, 184 N.E. , 852.

A leading case, made the subject of an extensive note in 12 A.L.R. 774, is Cooper v. Layson Brothers, 14 Ga. App., 134, 80 S.E. 666. In that case it was laid down that:

"Livery-stable keepers who let animals for hire are bound only to exercise...