Hibbert v. Bailey
Hibbert v. Bailey
Opinion of the Court
The defendant invited the plaintiff to ride a horse. Plaintiff was thrown or fell from the horse and injured herself. In an action for damages the jury returned a verdict for defendant. Plaintiff appeals.
The evidence was that the defendant suggested to the plaintiff that she ride defendant’s horse, Sugar-foot, in the Fourth of July parade. He asked her to come to his place and try out his horse. Several days later Mrs. Hibbert, the plaintiff, came out and defendant saddled up a horse, not Sugarfoot, and invited plaintiff to ride. Plaintiff mounted the horse, appeared to know how to ride, and defendant went back to his work. Shortly thereafter Mrs. Hibbert was unseated.
Plaintiff’s first assignment of error was the trial court’s failure to withdraw the charge of contributory negligence as follows: “Plaintiff negligently mounted a saddled horse when the plaintiff well knew, or should have known, that the stirrups of the saddle were too long to afford proper footing.”
The testimony was that Mrs. Hibbert did com
The remaining assignments of error will be considered together.
The trial court refused to withdraw the following charge of contributory negligence: “Plaintiff freely and voluntarily mounted said animal when the plaintiff knew, or should have known, of the characteristics of said horse.” The court gave an instruction on “assumption of the risk,” to which plaintiff excepted.
The defendant’s position in this case is that the horse was gentle and plaintiff fell off because she did not know how to ride, which shortcoming was unknown to the defendant. The plaintiff’s evidence was that the horse had a tender mouth, had to be neck reined and the owner of the horse was keeping it with defendant because the owner could not handle it, all of which was unknown to plaintiff.
The specification of contributory negligence acknowledges that to be a defense it must be proved that plaintiff knew or should have known of the dangerous propensities of the horse. Similarly, if contributory negligence is inexactly described as “assumption of the risk” it is necessary in order to maintain the defense to prove that the plaintiff knew or should have
There is no evidence upon which to submit the charge of contributory negligence, or to instruct the jury upon assumption of the risk.
Reversed and remanded.
Reference
- Full Case Name
- HIBBERT v. BAILEY
- Status
- Published