Barnett v. La Mesa Post No. 282

EDMONDS, J.

Marion R. Barnett and her young daughter sued to recover damages for personal injuries claimed to have been sustained by them when a pet show was given by the local post of the American Legion at La Mesa. The accident which occasioned the litigation is said to have occurred when they were struck by a horse owned by Fred Slocum and being ridden by Herbert Slocum, who are also named as defendants in the action. At the close of the plain

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tiffs’ case the court granted a motion for a nonsuit and thereafter entered a judgment of dismissal.

The facts are practically undisputed. The American Legion Post sponsored a parade as part of the' festivities to celebrate the burning of certain bonds which had been issued for local improvements. This parade was formed on the school grounds and included the palomino horse which caused the accident. The mother and daughter were not to participate in the parade but had come on the school grounds with Mrs. Barnett’s sister to deliver some caps'to the sister’s children. Thereafter they remained upon the school grounds viewing the formation of the parade.

The complaint contains two counts. In the first count, respondents are charged with negligence. The second count asserts a cause of action upon the ground that the horse which caused the injuries was a vicious and dangerous animal. The respondents deny these allegations and charge the injured persons with contributory negligence.

The testimony offered on behalf of the appellants shows that at the time of the accident Mrs. Barnett and her daughter were standing from seventy to ninety feet away from where the horses were grouped and were looking in the opposite direction. The palomino horse became uncontrollable, and while “rearing and whirling and backing around”, struck them. Mrs. Barnett was rendered unconscious by the impact and her daughter received minor abrasions.

The appellants contend that the evidence which they presented shows that the horse was a vicious and dangerous animal, which characteristics were well known to the respondents, and that the respondents acted negligently in forming the parade. On the other hand, the respondents claim, in support of the nonsuit, that there is not sufficient evidence to support a finding that the horse was or was known to be either dangerous or vicious.