Opinion
November 8, 1960.
The case was submitted on briefs.
Robert I. Ectman, for the defendant.
S. Myron Klarfeld, for the plaintiffs.
Exceptions sustained. Theresa Lanzilli, hereinafter called the plaintiff, seeks to recover for personal injuries incurred by falling from a riding horse which she had rented from the defendant. Her father joins in a count for consequential damage. There was evidence that the plaintiff was caused to fall by the saddle slipping to one side because the girth which had been adjusted by the defendant's employee was loose. The auditor to whom the case was referred found that the plaintiff's injuries were caused by the defendant's negligence and that she did not assume the risk of injury from an "insecure" saddle. The evidence was sufficient to warrant the verdict which was returned for the plaintiff but the exception of the defendant to the refusal of the judge, upon request, to rule that the burden of proving negligence was upon the plaintiff must be sustained. Nothing was said by him in his charge to cure the failure to give this instruction, to which plainly the defendant was entitled.