Summary
In Wolfe v. Wilkins, 491 P.2d 595 (Colo.App. 1971), where the horse had no history of vicious or dangerous behavior, had been ridden without incident by teenage children of the owner, and the professional trainer of the horse classified this horse as a good horse, the owner was not liable for injuries sustained by the social guest who was bucked off by the horse.
Summary of this case from Dolezal v. CarbreyOpinion
Nov. 30, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 596
Matney & Stark, Kenneth H. Gross, Fort Collins, for plaintiff-appellant.
White & Steele, Mark C. Hinman, Denver, for defendants-appellees.
DUFFORD, Judge.
This case arises from a personal injury suffered by plaintiff in a fall from a horse owned by defendants. Plaintiff brought suit against defendants for recovery of damages on the basis of defendants' negligence in failing to inform plaintiff of the fact that said horse had not been broken for riding. Defendants denied negligence and asserted the affirmative defenses of contributory negligence and assumption of risk. Trial was to a jury. At the close of the plaintiff's evidence and again at the close of all the evidence, defendants moved for a directed verdict, and the court reserved its ruling on each motion. The questions of negligence, contributory negligence, and assumption of risk were submitted to the jury, which returned a verdict for plaintiff, but the trial court vacated that verdict and made the ruling it had earlier reserved, stating that both motions for directed verdict should have been granted when made. It then entered judgment for defendants. Plaintiff appeals from the directed verdict, and defendants cross-appeal, asking that, if the trial court is reversed on the directed verdict, a new trial be granted on all issues.
Plaintiff assigns three errors to the conduct of the trial. He asserts that the court erred in failing to consider the evidence in the light most favorable to plaintiff in ruling on defendants' motions for directed verdict; that the question of whether defendants were negligent in failing to inform plaintiff of the horse's dangerous propensities was a factual issue which the trial court improperly determined as an issue of law; and that the trial court's belated disturbance of the jury's finding of facts is not permitted by C.R.C.P. 50.
I.
In making its reserved ruling on defendants' motions for directed verdict, the trial court was, as plaintiff contends, obligated to consider the evidence in the light most favorable to the party against whom the motion was directed. Brown v. Spain, 171 Colo. 205, 466 P.2d 462. Plaintiff is also correct in his assertion that, in ruling after the presentation of all the evidence on a motion for directed verdict made at the close of plaintiff's evidence, it was necessary that the court consider all evidence presented, including that presented by the defendants. Melnick v. Bowman, 102 Colo. 384, 79 P.2d 368.
The full scope of the evidence presented to the trial court in this case was to the effect that, prior to the time the defendants purchased the horse which threw and injured the plaintiff, the horse had run at pasture for approximately five years. There was no proof that the horse was ridden during that period, and we will presume, as did the trial court, that it was not. However, it was uncontradicted that, after the horse was purchased by the defendants and before the time of the plaintiff's injury, the horse had been ridden without incident by teen-age children and by the defendant Charles Wilkins. A professional horse trainer who had worked with the horse, called as plaintiff's witness, expressed the view that even a 'good horse' would sometimes buck or rear, and then generally classified the animal involved in this case as a 'good horse.' The trainer expressly stated that he had never found the horse to be vicious or dangerous. The plaintiff testified that before mounting the horse it appeared nervous and agitated, and he stated that before the horse threw him he made several false mounts, jerked at the saddle horn, and then jumped up and down in the saddle.
In granting a directed verdict for the defendants under a deferred ruling, it was the trial court's conclusion from the above facts that it had not been established that the horse in question had dangerous propensities which were known or should have been known by the defendants, and it further concluded that the plaintiff's accident had been caused by his own negligence and that he had assumed the risk of the accident. Plaintiff presently contends that the trial court could not have reached such conclusions if it had viewed the evidence in a light most favorable to the plaintiff and had resolved all inferences therefrom in favor of plaintiff. This contention is without merit.
The only aspects of the evidence in this case which favor the plaintiff's position are the fact that the horse threw the plaintiff and the fact that the horse had been pastured and possibly unridden for five years. Neither the trial court nor this court can presume negligence on the part of the horse's owner from the accident itself or from the fact that the horse had been at pasture for such period. City of Grand Junction v. Lashmett, 126 Colo. 256, 247 P.2d 909. The trial court properly concluded that the evidence presented no issue which should have been considered by the jury. Brent v. Bank of Aurora, 132 Colo. 577, 291 P.2d 391.
II.
Plaintiff's remaining assignment of error is aimed at the timing of the trial court's ruling on defendants' motion for directed verdict. He asserts that it was improper to disturb the verdict of the jury because C.R.C.P. 50 permits, after submission of the case to the jury, a reservation on questions of law only. It is true that only matters of law may be so reserved, but here the trial court ruled, As a matter of law, that plaintiff had failed to prove actionable negligence on the part of defendants, and also that, As a matter of law, plaintiff was not entitled to recover damages because of his assumption of risk and contributory negligence. Such being the case, the action granting the motion for directed verdict on the basis of the ruling was permissible under C.R.C.P. 50. Alexander v. First National Bank, 169 Colo. 252, 455 P.2d 861.
The judgment is affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.