On appeal from the Supreme Court.
For the respondent, Nathan Baker.
For the appellants, Charles I. Rosenfeld (Jerome J. Dunn, of counsel).
The opinion of the court was delivered by
RAFFERTY, J. Respondent, as plaintiff below, instituted suit against appellants, claiming damage because of personal injuries sustained as a result of having been thrown from a saddle horse hired from appellant corporation. The matter, after trial, having been submitted to a jury, verdict in favor of respondent was given and judgment thereon entered against appellants. From this judgment appeal is made.
The first point urged for reversal is based upon alleged error of the trial court in refusing to grant a motion for nonsuit on the opening of plaintiff's counsel before the jury, the ground of the motion being that the opening of plaintiff's counsel varied from the facts set forth in the complaint. We do not have a transcript of the opening before us. However, upon colloquy between court and counsel, the matter was finally settled in this wise:
"Mr. Baker: I am willing to rest upon the theory that he should exercise reasonable care (an implied warranty, you might say) to see that the horse was reasonably fit for the purpose intended, that is, for horseback riding.
"The court: Whether it is express or implied (not an insurance as in the case of warranty arising out of a sale) it cast upon him the duty of either knowing that fact or exercising reasonable care to know it.
"Mr. Baker: I am satisfied with that.
"The court: Of course, you understand that rises (sic) up the ordinary defenses available in an ordinary negligence case.
"Mr. Dunn: In order words, contributory negligence would be ...