Smith v. Pabst

• Decision Date: 05 December 1939
• Citation: 233 Wis. 489,288 N.W. 780
• Parties: SMITH v. PABST (two cases).
• Court: Wisconsin Supreme Court

233 Wis. 489

288 N.W. 780

SMITH

v.PABST (two cases).

Supreme Court of Wisconsin.

Dec. 5, 1939.

Appeals from judgments of the Circuit Court for Waukesha County; C. M. Davison, Judge.

Judgments affirmed.

The actions were separately commenced on March 24, 1938, by the plaintiffs, A. C. Smith and Elizabeth M. Smith, by Austin C. Smith, her guardian ad litem, against the defendant, Fred Pabst, to recover damages for injuries sustained by Elizabeth, and for medical, surgical and hospital expenses paid by the plaintiff, A. C. Smith, her father, all resulting from her having been thrown from or having fallen off a saddle horse which the defendant had let for hire for her use. In both complaints three causes of action were alleged. The first cause of action was upon express contract, the second upon implied contract or implied warranty and the third sounded in tort. The defendant denied all liability. The actions were consolidated for the purpose of trial. Trial was had to the court and a jury. Upon the closing of the testimony, the court granted the defendant's motions for directed verdicts in both actions. Thereafter, the plaintiffs moved the court (1) to declare a mistrial for the reason that the court erred in failing to submit the cases to the jury and (2) for a new trial because of such error and also in the interest of justice. Before the motions after directed verdicts were decided, Judge Davison died. Thereafter, upon stipulation of the parties and the approval of August C. Hoppmann, chairman of the board of circuit judges, Daniel W. Sullivan, circuit judge, was appointed to hear and decide the motions. After due hearing, the motions were denied, and judgments dismissing the complaints on their merits and for costs were rendered and entered on May 29, 1939. From those judgments the respective plaintiffs separately appealed. The appeals were consolidated and heard at our bar at the same time. The facts will be stated in the opinion.Bagley, Spohn, Ross & Stevens, of Madison, Shannon & Cronin, of Oconomowoc, and Gilbert McDonald, of Madison, for appellants.

Lecher, Michael, Whyte & Spohn, of Milwaukee, and Henry Lockney, of Waukesha, for respondent.

NELSON, Justice.

In the interest of clarity and convenience, we shall consider the facts and the applicable law as though only the appeal of Elizabeth were before us. Clearly the decision upon her appeal rules the appeal by her father.

Upon the closing of the testimony, the defendant moved for a directed verdict. The court granted the motion. The motions subsequently made to declare a mistrial and for a new trial were denied. The plaintiff contends that the trial court erred in refusing to submit the case to the jury and in directing a verdict.

[1][2] It is well settled that it is the duty of a trial court in a proper case to grant a nonsuit or to direct a verdict, and that when a verdict is directed the question on appeal is whether the trial court was clearly wrong. Leckwe v. Ritter, 207 Wis. 333, 241 N.W. 339, and numerous cases cited therein. In a recent case, Rusch v. Sentinel-News Co., 212 Wis. 530, 250 N. W. 405, 406, it was said: “A verdict may properly be directed only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.”

The material facts favorable to the plaintiff must be summarized. At all of the times to be mentioned, the defendant owned and operated a dairy and stock farm in Waukesha county. He raised and kept a number of saddle horses which he let for hire to persons desiring to ride. He also let them for hire with grooms to children and to others who were inexperienced and who desired to be instructed in horseback riding. The defendant was an experienced horseman having ridden for approximately sixty years and knew the characteristics of all of his horses. A Mr. Southcott had been employed by the defendant as general farm superintendent for about thirteen years.

The plaintiff, Elizabeth, in 1936, was a strong, robust and active girl of the age of fourteen years. Early in the summer of that year she became desirous of learning to ride horseback. Her first lesson was at Cox's Riding Academy at Delafield. She was first shown how to mount a horse and then permitted to ride through the country on a dirt road. She had no special help or attendant. She rode in a group of five or six. The academy mentioned was located at a greater distance from her home than was the defendant's farm. Her parents, therefore, thought it would be more convenient to arrange for her to ride at the Pabst farm. Mr. Smith, her father, early in July, telephoned Mr. Southcott, with whom he was well acquainted, and asked whether the latter could provide private riding instructions for Elizabeth. He told Mr. Southcott that Elizabeth was fourteen years of age, was inexperienced in riding horses, and had had no riding instructions except one time at the Cox Riding Academy. He asked Mr. Southcott whether Elizabeth would be as fully and as well taken care of at the Pabst farm as at Cox's. Mr. Southcott stated that he would be glad to provide riding instructions; that three or four other girls of Elizabeth's age were receiving instructions at the farm; that one girl was three or four years younger than she; that the horses which would be furnished were safe and dependable, the sort which could be assigned to the youngest girl; that she would always ride with an instructor, a man competent to take care of her,-an experienced man who would be with her; that there was nothing to worry about; that a number of other girls from Oconomowoc were riding there and that Elizabeth would be given equally careful care. Mr. Smith stated that Mrs. Smith would bring Elizabeth out to the farm and make further arrangements. Mrs. Smith testified that she took Elizabeth out to the farm and at that time told Mr. Southcott that she had been on a horse only once before and asked him if she would be perfectly safe, to which Mr. Southcott replied in the affirmative. This is substantially all of the testimony bearing upon the express contract issue.

On the day that Mrs. Smith first took Elizabeth to the farm she was given instructions in riding on a mare named Emmy. The instruction lasted for about an hour and was given within a riding enclosure, by a Mr. Jull, one of the defendant's grooms. A few days later a second lesson was given within the enclosure. During the first and second lessons Mr. Jull rode alongside of Elizabeth. Thereafter, Elizabeth took another lesson on Emmy, which was followed by two lessons on a mare named Vigilant (the mare involved in this action), one on a horse named Acrobat and one on a horse named Model. The rides subsequent to the first two were in the fields. When Jull rode with her he used a “lead rein” most of the time. All of the rides were uneventful and nothing happened which gave rise to any complaint or criticism regarding any of the horses furnished. On August 7th, Elizabeth and a Mrs. MacFadden went to the Pabst farm to take another lesson. Mr. Jull was not at the farm that morning and Mr. Dixon, another groom with whom Elizabeth had also ridden, was engaged in training horses for a show. Clarence Mair, a third groom employed by the defendant, who apparently had not served as a riding instructor as much as either Mr. Jull or Mr. Dixon, although he had served in that capacity a number of times at the Pabst farm, reported to Elizabeth and to Mrs. MacFadden that he had been directed to accompany them on their ride. On that day Elizabeth rode Vigilant for the third time and Mrs. MacFadden rode Emmy. They rode through the fields and into a sparsely wooded pasture lot, a distance of two to two and one-half miles from the stable, without anything happening. Upon entering the lot mentioned, Mair was ahead followed by Elizabeth and Mrs. MacFadden. Whether the latter two were riding side by side at the time does not clearly appear. Elizabeth testified that just prior to the incident about to be related, she may have been talking to Mrs. MacFadden. At about that time Elizabeth observed that Vigilant, proceeding at a walk, was going toward an overhanging branch which extended six or eight feet from the trunk of a tree. She “tried to lead her horse away from there” and then decided to stoop down under the branch. She bent her head low and shifted to the right side of her horse. Some of the branches struck her in the face and she lost her left stirrup and probably her right stirrup. Mrs. MacFadden, who observed her predicament, told her to drop off the horse. This she did with no resulting injury. Vigilant went on a short distance,-twenty-five to fifty feet, and then stopped and began to graze. Mair, upon discovering that...