Freund, Stanton and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned).
Appellant in this proceeding seeks to have an adverse verdict of a jury set aside as contrary to the weight of the evidence.
It appears that Miss Amado was a paying guest of respondent Malibu Dude Ranch. Among the activities offered to her was horseback riding.
On the day in question she and other guests, at the suggestion of respondent Rackmill, president of the ranch, were mounted participants in a parade in a nearby town. On the way back Rackmill, who was in charge of the group, took them off the main road and onto a narrow, tortuous, rockstrewn bridle path through the woods. Bushes and trees crowded in along the way, making single file riding advisable and a walk the only possible gait.
As the riders proceeded, appellant's horse encountered a swarm of bees. She was unable to spur him into a faster gait because of the trail conditions and the file of riders in front. Her horse suffered stings, reared, threw her to the ground, and then bolted.
Basically, the charge of negligence was predicated upon alleged knowledge in Rackmill of the presence of bees along the bridle path. However, evidence of this all important circumstance is not nearly so clear as is claimed by appellant.
There is no substantial proof that anyone ever previously encountered a swarm of bees on this bridle path. There was testimony from some witnesses that they had seen bees and other insects around the various riding trails in the neighborhood. Rackmill said that a week or ten days prior to this accident, when he was heading a party of riders over this same path, word was passed up to him from the rear that a bee or something had stung one of the horses. However,
the rider involved, a Miss Harriet Ackerman, testified that she had been stung on the arm by a bee but she could not remember on what trail the incident had occurred.
Rackmill conceded that over the season between April and August various riders had told him they had encountered bees while riding trails. But there was no reference to swarms of bees nor to such a condition along the trail in question.
Appellant testified that following the accident Rackmill visited her at the hospital and while there said he was terribly sorry he took her on that path, especially since he knew there were bees there. On the witness stand Rackmill said he did not think he made the statement; also that he did not make it. And he asserted further that he had not encountered bees in quantity on the particular trail or on any other trail prior to the mishap.
It cannot be said reasonably that knowledge by an operator of a dude ranch of the occasional presence of a bee or other stinging insect along a path would justify a finding of negligence against him if he led a group of his riding guests over it without disclosing this information to them. Knowledge of swarms of bees along a particular path is another matter. Whether such knowledge had been proved here involved issues of fact and credibility which were squarely within the province of the jury to decide.
In any event, respondent seeks a dismissal of the appeal, pointing out that there has been no compliance with the portion of Rule ...