*1 718

to have benefit the reason- every that can inference ably Reed, from the drawn evidence. Reed v. N. W. 2d 356.

The be- testimony plaintiffs action, in this if established that George Pick paid interest lieved, on the note to August 1964. up fixed Exhibit date of the payment from period statutory would run. The evidence for the presented question jury, and the motion for a directed verdict as to the Pick should have been George defendant overruled. to consider other unnecessary assignments of error.

The judgment of the district court ac- dismissing tion as to Pick is Marilyn affirmed. dis- missing as to the action Pick is George reversed cause remanded for a new trial. part

Affirmed part, and in reversed AND REMANDED FOR A NEW TRIAL. Jay E. Huber, appellant, al.,

Donna et Timmons appellees. 171 N. 2d 794 W. Filed November 1969. No. 37159. *2 J. for McCarthy, appel-

Paul H. Harmon and Edward lant. Kauffman, & Vinardi, Day, Schatz Ken-

Gross, Welch, Cashen, & P. nedy, Holland, DeLacy Joseph Svoboda, Reidmann, Larsen, L. ap- for Lyman William J. pellees. J., before

Heard Spencer, Boslaugh, White;, Carter, JJ. Newton, McCown, Smith, Newton, action. Plaintiff injury attended personal

This a rides children providing pony Shetland a concession ride for her daughter arena. a purchased small She a as the was led around the alongside pony walked pony arena. The reared and bolted. Plaintiff seized the dragged along, injured. saddle, was At the conclusion of evidence the trial petition court, her was dismissed on motion of defendants affirm the entered defendants. We judgment of the district court.

Plaintiff was a member of Joan of Arc St. Catholic groups Church. The church, or certain connected with the church, conducted an annual carnival fund- raising purposes. booths, concessions, Numerous public, including rides were available the Shet- by operated land and other concessions owned and Pony defendant Rides, Inc. Plaintiff, member of the accompanied by 5-year-old daughter, church, at- evening. purchased tended the carnival in the Plaintiff entitling daughter a ticket ponies to a ride. by young boys were led around the arena who supplied gratuitously such services at the solicitation of members of the church. Tickets were sold church *3 up- by members but were taken the concessionaire and operations all connected with the concession were under by, of, the control and conducted the concessionaire. daughter placed pony, plaintiff As her was aon ob- by Donnelly, 9-year- that it served was to be led Mark a boy plaintiff acquainted. old whom was well After a placed plaintiff’s daughter pony, man on the he asked plaintiff daughter if she to let wanted ride alone. replied Plaintiff that she to wanted walk beside her daughter proceeded proceeded they to do so. As pony suddenly arena, around the reared and bolted. sought protect daughter, Plaintiff was unable to seize the bridle reins, but did take hold of the saddle dragged pony and was stopped by for a short distance until the stepped

an attendant. She was kicked or by pony a on sustained Achilles tendon severed right of the heel. Donnelly pony’s fright attributed the action to panel lights driving a on, with its

caused truck, rapidly parking into a area a short distance from the pony coming stop. to a sudden Mark became frightened stepped pony He back when bolted. pony jerked away did know not whether the from him or go. he let

Plaintiff stated that her brother at one had time had a pony, she that a her husband owned Shetland they purchased daughter, had their that the children permitted except presence were not in to ride it grandfather, their or father and that she was somewhat ponies. familiar with charges negligence

Plaintiff in that the not properly placed charge controlled and was im- of an inexperienced pleaded mature and handler. Defendants general contributory negligence, assump- a denial, tion of risk.

One who lets a horse for hire warrants the horse purpose be suitable for the is let which it and is liable resulting injuries dangerous from the viciousness or propensities knowledge, of the if he horse inor, knowledge, care, exercise reasonable should have had dangerous propensities. Baty of such viciousness See Ordinarily Wolff, v. N. 1, 74 W. 2d 913. dangerous propensities existence vicious a do- knowledge propensities mestic animal and of such in- are dispensable liability part on the of the See, owner. Durrell Johnson, 31 Neb. N. 48 W. 4 Am. p. many 2d, Animals, Jur. 336. There are char- gentle. horses, acteristics common to all even the most propensity One such characteristic their is to rear or bolt frightened. when one of the situations one rid- ing expect riding must a horse to encounter and one pur- must hired horse take the risks incident to such *4 Holliday, App. See, suit. Clifton Ohio v. 85 88 N. 229, p. § E. 4 304; 2d, 86, 2d Am. Animals, Jur. 332. foregoing primarily The rules deal with instances in which a horse when hired is off ridden and fails to supervision remain under the of owner the who cannot 722 rider its

ensure horse not and unseat may shy that the not one in which when The case is frightened. present con- On a horse let to horseman. the is an experienced cater to designed concession was primarily the one trary, of children all ages, including plaintiff’s 5-year-old the The daughter. remained at all times under ponies the and the of concessionaire supervision the fact be a factor to of the concession children is were patrons exer- care considered determining in if reasonable 449; 2d See, cised. Dee Tex. 327 S. W. 171, v. 160 Parish, 2d 16. “Even Pullen v. 99 N. W. Novak, 211, 169 ani- the of in a domestic absence known viciousness any it a certain mal, its to exercise over obliged owner is of and character degree care the kind of depending upon the the circumstances particular concerned, animal is for which it em- it is placed, purposes the ** * knowl- The is ployed kept. charged owner * * *, and, edge the of animals of natural propensities in- might if are kind that cause these of propensities such must care to- jury necessary prevent exercise the he Animals, 2d, Jur. injuries as Am. anticipated.” § may Fox See, Animals, S., p. 337. 89, p. also, A. R. 903. L. 528, 209 N. W. Koehnig, Wis. of Considering patrons, defendants’ youthfulness in- horses, youth the natural propensities experience question we find Donnelly, jury would have been whether normally presented regarding in entrusting not defendants negligent were to his care. who mother, true that the child not it mate-

rode This is not horse, injured. has been who the use of upon rial as she was much entitled to rely as existing defendants in accordance with reasonable care by circumstances daughter. as was negligence assump- of contributory defenses as they pertain tion risk are not here available insofar child attempting protect actions while to rescue another attempts A who from injury. person *5 placed peril in imminent does not assume the risk inci- guilty dent contributory negligence thereto is not of imprudent, he negligent unless acts in a rash, or manner. Negligence, (5), See 65A pp. §§ S., C. J. 124 and 174 Negligence, p. Wolfinger 301; Jur., Am. preceding Shaw, 138 292 N. W. 731. The rule applicable proceed- would not be action in ing becoming with the ride after of aware the fact that Donnelly Mark pony. towas lead the According plaintiff’s testimony, she was familiar ponies propensities. with and their natural She was acquainted Donnelly well Mark with who was about the age playmate same as, and a of, her son. She and her knowledge husband had en- sufficient of the to be hazards dealing ponies they countered when so that refused 5-year-old daughter to let their son, their who was Donnelly’s age, pony they Mark about except ride owned presence grandfather. in the of their father or Notwithstanding knowledge this and her observation that Donnelly charge Mark was to be in of the ridden daughter, plaintiff proceed. elected to She as knowledge much, Donnelly’s previous more, Mark of experience ability to handle horses as the defendants. alleges Under these circumstances she that defendants negligent entrusting were care; Donnelly’s

yet, despite knowledge she denies, her own experience, guilty contributory neg- she was ligence injury. position or assumed the risk of Her extremely contradictory. best, at is, If defendants were negligent, necessarily guilty she contributory neg- was ligence. any negligence Since any of the defendants, contributory negligence plaintiff, of the stem from same situation, identical the one cannot be lesser or greater than the A other. case for submission under comparative negligence presented the rules of is not necessarily obliged plaintiff arewe to find that guilty contributory negligence sufficient to bar her recovery as a matter of law. affirmed. of the district court is

Affirmed. J., dissenting. Spencer, agree plaintiff guilty of contribu-

I do not that the tory negligence con- there was a matter of law. If as tributory negligence, question of fact it would jury under to the should have been submitted proper instructions. *6 Ray appellee, Baker, Nebraska, v. Hiram

State appellant. N. 2d 798 171 W. Filed 1969. 37181. November No. appellant. McArthur, McArthur A. John James Attorney Meyer, General, A. and James Clarence H. Duggan, appellee. J. J.,

Heard before Boslaugh, White:, Spencer, Carter, JJ. Newton, McCown, Smith, Spencer, perfected appeal Ray Baker,

Defendant, an Hiram driving an from conviction automobile this court liquor. intoxicating He set under the influence while only assignments error. We consider four out