December 2, 1965 —
January 4, 1966.
APPEAL from a judgment of the circuit court for Sauk county: ROBERT H. GOLLMAR, Circuit Judge. Reversed.
For the appellant there was a brief by Hill, Miller Quale of Baraboo, and oral argument by James H. Hill, Jr.
For the respondents there was a brief by Vaughn S. Conway and Kenneth H. Conway, both of Baraboo, and oral argument by Vaughn S. Conway.
This case is one for damages for personal injuries suffered by respondent minor, Mary Lou Willenbring, arising out of a fall from a riding horse rented to her by appellant, Floyd Borkenhagen. The jury found Mary Lou 40 percent negligent and Borkenhagen 60 percent negligent. The trial court, on respondent's motion, changed the jury's answer concerning Mary Lou's negligence and found her not negligent.
On June 21, 1963, a week prior to the accident, Mary Lou, aged fourteen years and eight months, and one Jacquie Birch of similar age, went to the Borkenhagen stable to ride. Jacquie had ridden frequently, but Mary Lou had never been on a horse before. At that time the attendant at the stable advised the girls that they should have a guide to accompany them. However, one Lenny, a male companion of Jacquie's mother who had driven the girls to the stable, persuaded the attendant to allow the girls to ride without a guide. Jacquie had ridden without a guide on several occasions during the two years she had frequented the Borkenhagen stable.
The girls were placed on horses and began to ride, but Mary Lou experienced considerable difficulty in getting her horse to move. Finally, the girls dismounted and walked the horses back to the stable. They had ridden so short a distance that they had not even reached the riding trails cut through the woods.
On June 29, 1963, just a week later, the girls returned to the stable. Once again they were accompanied by Lenny. One of Borkenhagen's teen-aged daughters was attending the stable. The Borkenhagen girl advised the girls about taking a guide. The girls protested that they did not want a guide. The Borkenhagen girl went to her mother to see if the girls could ride without a guide. Mrs. Borkenhagen told Mary Lou that they were having so much trouble with riders going alone that they were requiring a guide. The girls said they were experienced riders and wanted to ride alone.
At this point Lenny talked with Mrs. Borkenhagen and attempted to dissuade her. Finally, Mrs. Borkenhagen disclaimed any liability for any injuries that might ensue and allowed the girls to ride alone.
Shortly after entering the woods the girls approached a spot where a dead tree had fallen from the right side of the trail and caught in some trees on the left side, so as to arch across the trail. Jacquie saw the hazard in time to duck down and avoid the tree, but Mary Lou, who was following closely behind, did not. She was struck, fell from her horse and sustained injuries.
The special verdict included questions on Borkenhagen's negligence in maintaining and inspecting the trail and in failing to furnish a guide. It also included questions on Mary Lou's negligence in riding too fast and in failing to accept the services of a guide.
The jury found Borkenhagen negligent in failing to inspect and maintain the trails, but not negligent in failing to provide a guide. It found Mary Lou negligent in failing to accept the services of a guide, but not in riding too fast. The jury apportioned negligence 60 percent to Borkenhagen and 40 percent to Mary Lou.
On respondent's motion the trial court changed the jury's answer that Mary Lou was negligent in failing to accept the services of a guide. The court thus found Mary Lou not negligent in any respect, so then Borkenhagen became chargeable with 100 percent of the causal negligence.
Appellant Borkenhagen appealed to reinstate the jury's verdict, and in the alternative for a new trial because of other assigned errors.
Because we reverse on the first ground and reinstate the jury's verdict, we do not consider the requests for new trial. The sole issue considered on this appeal is whether the trial court was justified in changing the jury's determination of respondent's negligence, so as to find no negligence on her part.
It is undisputed that a minor seven years old or older is capable of being negligent. Sec. 328.44, Stats. We have often pointed out, "The degree of care required of a child depends upon his age, capacity, discretion, knowledge, and experience." Rossow v. Lathrop (1963), 20 Wis.2d 658, 663, 123 N.W.2d 523. See also Blahnik v. Dax (1963), 22 Wis.2d 67, 125 N.W.2d 364; Brice v. Milwaukee Automobile Ins. Co. (1956), 272 Wis. 520, 76 N.W.2d 337. The record is void of any evidence to suggest that Mary Lou was of less than normal capacity and discretion. Her age is such that in the eyes of the law she is expected to exercise some degree of mature judgment. The trial court concluded that because of Mary Lou's lack of experience with horses she had no knowledge of their natural propensities and that this, coupled with the desire of a child of her age to go about her affairs unsupervised, was sufficient to compel a finding that she was not negligent.
Certainly, Mary Lou's experience with horses had been such that she should have been aware of some of the hazards in horseback riding (even though there is no evidence that the horse was unmanageable or erratic).
From the evidence presented the jury could have concluded that Mary Lou had sufficient knowledge to require her to accept the services of a guide, which services were included in the rental price. She knew that on both her trips to the Borkenhagen stable she had been advised to accept a guide. She knew that she was not an experienced horsewoman. She knew that she had been unable to make her horse respond to her commands just one week prior to the date of the accident. She knew that she had never been on the wooded trails at the Borkenhagen stable, and that she knew nothing of their nature and condition. She also knew that Mrs. Borkenhagen had mentioned the recent trouble with riders who had refused guides. Finally, she knew that Mrs. Borkenhagen was concerned enough to disclaim any liability for resulting injuries.
It being axiomatic that every person has a duty to use ordinary care for his own safety, Cordula v. Dietrich (1960), 9 Wis.2d 211, 101 N.W.2d 126, the jury could have found on the basis of the evidence presented that Mary Lou was causally negligent in failing to avail herself of the guide services offered.
"The rule is well established that a verdict or a finding of a jury will not be set aside or disturbed, `if there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury's finding.' Van Galder v. Snyder (1948), 254 Wis. 120, 123, 35 N.W.2d 187. [Footnote omitted.] `The familiar rule, often declared by this court, that where there is credible evidence to support a finding of a jury we may not disturb it, needs no citation of authorities.' Mossak v. Pfost (1950), 258 Wis. 73, 75, 44 N.W.2d 922. It should be further pointed out, `on review this court must accept the credible evidence most favorable to sustain the verdict.' Dickman v. Schaeffer, . . ."
Or, as the late Chief Justice ROSENBERRY stated it in Lutzenberger v. Milwaukee E. R. L. Co. (1937), 224 Wis. 44, 47, 48, 271 N.W. 409:
". . . The question here is, Is there credible evidence to sustain the verdict? If there is, even though it be contradicted and the contradictory evidence be stronger and more convincing, nevertheless the verdict of the jury must stand. The credibility of witnesses and the weight of the evidence are for the jury. The court does not retry the question. The court merely ascertains whether there is credible evidence to sustain the verdict. . . ."
Since the record contains evidence from which the jury could have concluded that Mary Lou was negligent, it was error for the trial court to change the jury's determination. The verdict must be reinstated. For this reason we deem it unnecessary to consider the grounds for new trial raised in the alternative by appellant.
By the Court. — Judgment reversed, and cause remanded with directions to reinstate the verdict and enter judgment upon the verdict as reinstated.
I would affirm because I agree with the trial court that this plaintiff, a fourteen-year-old city girl should not be held negligent for not accepting a guide. In this mechanical age a fourteen-year-old minor knows more about automobiles than she does of the characteristics of riding horses. The degree of judgment a fourteen-year-old child can be charged with is not the mature judgment of an adult but the judgment of an ordinary prudent child of fourteen years. Almost daily we see children taking thrill rides at carnivals and fairs which many adults would not do. I think it would be a rare exception for a fourteen-year-old girl to accept the offer of a guide to go horseback riding. If the defendant was having accidents and trouble with his horses as the testimony shows, it was his duty in renting horses to the public to insist upon a guide. We should not charge negligence to a fourteen-year-old for failure to accept an offer, which in the nature of things would not normally be accepted.