
    John C. Wilson, Respondent, v. Charles W. Dickel and Frederick W. Kroehle, Appellants.
    
      Negligence — pupil of a riding school injured by the twi'ning of the saddle—a chas'ge confusing separate grounds of liability.
    
    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendants, it appeared that the defendants were partners and conducted a riding school, of which the plaintiff was a pupil, and had made such progress that he felt perfectly able to go out riding with a well-trained horse. On July 3, 1893, the plaintiff went out with a Mr. Stockholm, who seems to have been an employee of the defendants, to take a ride in Central Park. While in the park Mr. Stockholm noticed that'the plaintiff’s saddle seemed to be giving way; and a mounted policeman, who testified that the, buckles of the. straps were in a very bad condition, fixed the girths as well as he could, and told the plaintiff that he guessed that they would hold, and the plaintiff continued his ride with Stockholm, but when riding upon a down grade the.saddle slipped and he was. thrown and injured. Stockholm testified that a policeman who puts the saddle on the horse, when caught after it ran away, called his attention to the bad condition of the straps of the gir.th.
    The defendants, on the other hand, produced a saddle which was in good condition, and furnished testimony to the effect that this was the saddle which- had been on the horse at the time of the accident.
    The negligence of the defendants was predicated: Mrst, upon a failure to furnish' the plaintiff with a properly-equipped saddle and horse, and, second, upon the failure to place them in the plaintiff’s hands with the saddle properly adjusted. The defendants’ counsel asked the court to charge that if the jury believed ' that the saddle used was the one shown, in court and that the trappings were . unchanged since the accident, the jury must find for the defendants. To which the court replied that if the jury found that that was the saddle and that that saddle was all right, and was properly fastened, adjusted and girded, then they should find for the defendants; and the court then added: “But it might have been that saddle, and not properly girded.”
    
      Held, that the charge was calculated to produce confusion in the minds of the jury and that there must be a new trial;
    That a recovery must rest upon the failure of the defendants, to furnish the plaintiff with a horse and a properly-equipped saddle;
    That the plaintiff was not entitled to recover for the failure of the defendants to. place in his hands the horse with the saddle properly adjusted, for the reason that the plaintiff had notice of the improper adjustment of the saddle and had attempted to remedy it, and that if, having failed in doing so, he proceeded with his ride, he was guilty of contributory negligence as matter of law.
    Appeal by the defendants, Charles W. Dickel and another,' from a judgment of the Supreme Court in favor of the plaintiff, entered in the .office of the clerk of the county of New York.on the 24th. day of February, 1896, upon the verdict of a jury, and also from an order .entered in said clerk’s office on the 4th .day of March, 1896, denying, the defendants’ motion for a new trial made upon'the minutes.
    The action is to recover damages for personal injuries suffered by plaintiff through the alleged negligence of the defendants. The defendants were, co-partners, conducting a riding school and letting horses for hire,' and at' the time the injuries were' received the plaintiff was a pupil of the defendants and had taken sufficient lessons in horseback riding so that he “ felt perfectly able to go out with a well-trained horse.” In company with a Mr. Stockholm on July 3, 1892, plaintiff went to defendants’ riding academy and ordered horses to be saddled and equipped, which were brought, and they started on a ride through Central Park. Plaintiff’s horse was a good one, spirited and well trained, and the plaintiff liked him. He had ridden him before.
    While in the park Mr. Stockholm noticed that plaintiff’s saddle was giving way or seemed to be moving from position, and suggested to plaintiff that they get a mounted policeman who was in sight to fix it. Plaintiff dismounted and the policeman, at plaintiffs request, tried to adjust the girths of the saddle. He testified that he found the straps in poor condition. There were two girths with three straps on the saddle; one girth had two buckles; the second, one buckle. On one strap the tongue of the buckle was short and Would not hold; another strap was split from hole to hole, so that there was but one buckle that held anything at all. The policeman called plaintiff’s attention to that condition, and remarked that it was an outrage to allow anything like that to go out. He tightened the girths as well as he could, and told the plaintiff that was the best he could do and that he guessed it would hold. The plaintiff and Mr. Stockholm then proceeded on their ride, going through the park and on up to Claremont, where they stopped about half an hour, giving their horses to the attendants there, and then started back.
    On remounting at Claremont plaintiff did not examine the girths 'of his saddle, nor did he ascertain whether the girths had been loosened while the horses had been in the stable. While going down Riverside drive at a gallop, the road at this point being a little down grade, the plaintiff felt the saddle suddenly slip and turn, and he went off and struck on his head, and was painfully injured. Hp to that time no inclination of the saddle to slip had been'noticed since leaving Claremont! The horse was caught by a boy, and a policeman put the saddle back on the horse, and the boy rode the horse with the saddle to defendants’ stable. Mr. Stockholm testified that this policeman called his attention to the fact that the leather strap was rotten, and that he (the witness) observed that the huckle tongue had gouged the .leather- out and drawn by for three or four holes, slipping from hole to hole. .The-man haw ing charge of the defendants’ saddles was examined, and he produced a- saddle in good condition, without any tears in. any of' the straps between the different holes, which .he testified was the same saddle that was on the horse when lie came into the stable after the accident.. .
    The plaintiff paid out-$375 for doctors’ bills, trained nurses,.etc., ■ and the jury brought in a verdict against the defendants in the sum of $400. A motion for a new trial was made and denied, and from the order denying the motion and from the judgment entered upon the verdict the defendants appeal.
    
      Henry B. Anderson, for the appellants.
    
      Byram L. Winters and George A. Baker, for the respondent.
   O’Brien, J.:

The negligence of the defendants was'predicated upon the failure, first, to furbish the plaintiff with a properly equipped saddle aiid horse; and, second, to place them in liis hands with the saddle properly adjusted. These grounds,' because not -consistent, should-not be confused, and unless there was evidence to sustain a recovery upon either ground, and unless the distinction between the separate grounds was clearly presented for the considération of the jury, confusion was likely to ensue, and a mistrial occur.

Upon the question of whether or" not the defendants failed in their duty -to place the plaintiff in possession of a saddle properly adjusted upon the horse, the evidence shows that after leaving the stable and upon reaching the park, the attention of the plaintiff was-called to his saddle,, and thereupon it was adjusted by a police officer, and thereafter the plaintiff continued his ride, and-after reaching Claremont; at the upper .end of Biverside drive, the horse was placed in the shed, where he remained for half an hour. While it was suggested that it was the custom to loosen the saddle while the horse was standing,, and then to adjust it- again when the party was. ready to remount, there is no evidence directly upon that point, but we have the fact that the plaintiff, either with or without -examining whether the saddle was properly adjusted,, remounted and proceeded to ride home. In this state of the record, it is clear that the defendants conld not be held responsible for the injuries which the plaintiff suffered, if they resulted from an improper adjustment of the saddle upon the horse, because such obligation as rested in this respect upon the defendants was violated at the time the horse left the riding academy; and it appearing that the attention of the plaintiff was called to that fact, and that the saddle was adjusted in the park, and the plaintiff thereafter continued to ride, we are necessarily brought to the conclusion, either that the failure to adjust the saddle properly in the first instance had no bearing upon the accident which culminated in the injuries, or if we assume that the saddle left the riding academy without being properly adjusted, the plaintiff had .notice of this fact, and undertook to remedy it, and if without doing it so as to render the saddle safe he proceeded on his ride, he was guilty of négligence which contributed to his injuries, and which would bar his recovery.

In the condition of the record, therefore, as it stood at the close of the case, it became the duty of the court to dismiss from the consideration of the jury this ground of recovery, and if the plaintiff was entitled to damages it could only be upon the other ground, namely, that the defendants failed in their duty to furnish the plaintiff with a properly equipped saddle and horse. There was testimony unquestionably from which the jury could infer that the accident was due to this cause, the evidence pointing to the fSct that the saddle was in poor condition,' the buckles and leather composing the straps, permitting the tongue of the buckle, when a strain was placed on the horse, as in galloping down hill, to draw through the leather, and thus, by increasing the size and length of the saddle girths, to permit the saddle itself to slip. The plaintiff could not, as matter of law, be held guilty of negligence in assuming that the saddle was equipped with all necessary and proper appliances, and as the question whether the officer in the park called attention to the fact that these defects rendered the saddle unsafe was placed in dispute by the testimony of the officer and that of the plaintiff, the latter stating that upon adjusting the saddle he was told by the officer that it would hold, the question of plaintiff’s contributory negligence, therefore", was one of fact to be disposed of by the jury.

In his charge, however, the judge neglected to present clearly the two distinct theories upon which a, recovery was. sought, or, as stated, to eliminate from the consideration of the jury the question of the adjustment of the saddle. The: man in charge: of .the defendants’ .saddle room was called .and brought with him a saddle .'and girths complete, which were in a perfectly proper condition,, and which were put in evidence and exhibited to the jury, and he testified that. they were the saddle and girths Used on the occasion, of the accident. The defendants’ counsel asiced the court to charge that “ if thé jury believe that the saddle used was the one shown in court, and that the trappings were unchanged since the accident, they must find for the defendants.-” The Court: If they find that is the saddle and that that saddle was all right and was properly fastened, properly adjusted and girded, then you will find for the defbndants: But it might have been that saddle and not properly girded.” It will thus be seen that a proposition which the defendants were entitled to have charged was not charged as requested,, but. was involved with the other ground upon wliich the defendants’1 liability was sought to be placed, namely,, the proper: fastening and adjitstment. of' the saddle. This could not but. have produced confusion in the minds of the jury, and it not only prevented them from considering the single, ground upon which a recovery upon this testimony, could be upheld, but left them to determine such liability upon the. other ground of the improper adjustment of the saddle.

$or the reasons stated, therefore, we think that the errors committed upon the trial, require that the judgment should be reversed and a new trial ordered, with costs to appellant tip abide event..

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Judgment reversed and hew trial ordered, costs .to appellant'to abide event.  