
    Cora Leigh PRUITT and Burt Pruitt, husband and wife, Appellants, v. Hugh WHELCHEL d/b/a Game Trail Riding Ranch, Appellee.
    No. 2675.
    District Court of Appeal of Florida, Fourth District.
    April 17, 1970.
    John R. Young, of Hamilton, James, Merkle & Young, West Palm Beach, for appellants.
    Elmo R. Hoffman, of Hoffman, Hendry & Parker, Orlando, for appellee.
   PER CURIAM.

Affirmed.

WALDEN and OWEN, JJ., concur.

CROSS, C. J., dissents, with opinion.

CROSS, Chief Judge

(dissenting).

I must respectfully dissent.

I am of the conviction that the injection in the court’s instructions of the specter of assumption of the risk in the instant case was highly improper and prejudicial to plaintiffs’ case. Jury charges must square with the rule of law arising from the facts developed at the trial of the case. Charges which derive from any other source are apt to mislead the jury. Bashaw v. Dyke, Fla.App.1960, 122 So.2d 507; Bessett v. Hackett, Fla. 1953, 66 So.2d 694; Postal Telegraph & Cable Co. v. Doyle, 1936, 123 Fla. 659, 167 So. 358; Murden v. Miami Poultry & Egg Co., 1934, 113 Fla. 870, 152 So. 714.

The instruction relating to assumption of the risk was not predicated upon facts in proof, nor upon evidence which had been submitted and therefore constituted error.

I would reverse.  