Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. JOHN S. GHENT, Judge, presiding.
Reversed and remanded with directions.
ABRAHAMSON, P.J., dissenting.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
October 18, 1968. Rehearing denied November 22,
This is a personal injury action arising from plaintiff's fall from a horse which was owned by the defendants. A $3,000 jury verdict and judgment for the plaintiff resulted, from which the defendants appeal.
The defendants claim as error that the court failed to direct a verdict at the close of all the evidence, that the court failed to rule as a matter of law that the plaintiff was guilty of contributory negligence, that the court failed to instruct the jury on certain issues, that the court erred in excluding from evidence the exculpatory clause contained in the document called the "SIGN IN" sheet pleaded as an affirmative defense, that the court erred in failing to enter judgment notwithstanding the verdict in favor of the defendants on the basis that the verdict was against the manifest weight of the evidence, and finally, that the plaintiff assumed the risk, and, therefore, could not recover regardless of any negligence of the defendants.
The plaintiff, age 43, had very little horseback riding experience previously and had had one lesson at the premises of the defendants two days prior to this occurrence.
While in the office, prior to the second lesson, the plaintiff signed a document called a "SIGN IN" sheet which contained an exculpatory clause. The document was as follows:
"I hereby hire one horse with bridle and saddle from the Wagon Wheel Stables located at Rockton, Illinois. I represent I have carefully and fully examined and tested the gentleness and manners of the said horse and represent I am fully capable and competent of possessing, managing and riding said animal during the period of this bailment and I hereby accept the animal as fully suitable for my requirements.
"I further represent I have carefully examined and tested the bridle, saddle and fastenings on each and find the same to be in good condition, free from defects and that the same are fully adequate for my purpose.
"I further represent I will use ordinary care in the use of the said horse and that I will not abuse, mistreat or ride said horse in a reckless or careless manner and I will use said equipment in the usual and ordinary manner.
"I further represent and agree that Wagon Wheel Stables or its agents have made no representations to me of any kind or character concerning the suitability, gentleness or the habits of said animal and I hereby assume full risk and responsibility for any accident which might happen to me, or liability for injury to any other person or persons while the said animal and equipment are under my control and in my possession.
"I further represent that Wagon Wheel Stables through its agents and employees, in my presence and with me, have fully and carefully examined and tested the said equipment, and that such examination, the equipment was free from defects at the time of this bailment.
"Now, therefore, in consideration of the representations made by me and the bailment of the said horse to me for the period of this contract by the said Wagon Wheel Stables I do hereby remise, release and forever discharge and by these presents do for myself, heirs, executors and administrators, remise, release and forever discharge the said Wagon Wheel Stables, its agents, employees or servants of and from all manner of actions, cause, and causes of action, suits, reckonings, controversies, damages, claims and demands whatsoever, in law or in equity which I now have or may hereafter in the future can or may have or which my heirs, executors or administrators, hereafter can, shall or may have by reason of any matter, cause, or thing, whatsoever, arising out of any matter or thing contained in this agreement or, in pursuance of, or arising out of or in connection with any matter or thing arising out of the bailment by me of the within described horse.
"I further represent no oral representations have been made on behalf of the Wagon Wheel Stables, that this agreement constitutes our complete understanding and that the representations made by me are true and are made for the purpose of securing the bailment ...