Franceschina v. Hope

BARNES, J., delivered the opinion of the Court. The appellants, Peter Franceschina, an infant then three years of age, and his parents, Louis and Helen Franceschina, were plaintiffs below in the Circuit Court for Howard County (Wray, J.) in an action to recover damages for personal injuries suffered by the infant plaintiff and medical expenses and loss of earnings by the parents, allegedly resulting from the negligence of the appellee, Anne Victoria Hope, a minor then 14 years of age, in connection with a fall of the infant plaintiff from a mare, Taffy, under the control of the defendant, and a kick by the mare to the infant plaintiff’s head. The jury found a verdict for the defendant and from the resulting judgment for her for costs, the plaintiffs filed a timely appeal to this Court. The appellants contend before us that the lower court erred (1) in refusing to admit into evidence certain expert testimony in regard to horsemanship from two witnesses called by the plaintiffs; (2) in failing to grant an ⁶³⁴ instruction requested by the plaintiffs in regard to the absence of contributory negligence by the parents; and, (3) in giving instructions allegedly “slanted” in favor of the defendant.

We have concluded that the lower court committed no reversible error and we will affirm the judgment for the defendant for costs. Anne, the 141/4-year-old defendant, on June 1, 1968, decided to go horseback riding with a friend, Julie Myers, to the 7-11 store in Columbia, Howard County. The two girls got Taffy, a mare owned by George V. Hope, Anne’s father, out of her stall, placed a bridle on her, and rode bareback to the store where they each had a “slurpy.” On their return home, they went through a baseball field where a number of children were playing. Seeing the mare, several of those children ran over to the girls and requested a ride on Taffy.

Anne agreed to give them a ride because, as she testified, “it would be a nice thing to do.” Anne further testified that on previous occasions at her home in Columbia, she had given other children rides on Taffy without incident. All of the witnesses who had any experience with Taffy agreed that she was a very tractable, well-mannered mare who had never injured anyone. Julie stated that Taffy was a good riding mare, was quiet and calm and had no bad habits. She had never had any difficulty in riding or controlling the mare.

Anne testified to the same effect, stating that Taffy responded well to hand and leg commands and that the mare never bucked, kicked or shied and was not difficult to handle. Her father George gave similar testimony. Peter, the infant plaintiff and his friend, Jon C. Meyers, were among the children requesting a ride on the day of the accident. Peter testified that the girls asked him if he wanted a ride; but Jon, the two girls, Anne and Julie, as well as Vicki Everhart, all testified that Peter first asked for a ride on Taffy.

In any event, Peter and Jon were placed on Taffy — Peter and Jon stating that Peter was placed in front and Jon behind him; Anne and ⁶³⁵ Julie testifying that Peter was placed behind Jon. Anne testified that Jon held onto the lower part of Taffy’s mane which at that point was approximately four inches long; Peter sat behind with his arms around Jon’s waist. Anne stood alongside of Taffy’s neck and held the reins just under the bit in her left hand, so that she could control the mare’s movement and placed her right hand on the upper legs of the children near their hips in order to help steady them. Both Peter and Jon testified that no one was holding Peter’s leg.

Anne then led Taffy around in a circle, walking alongside Taffy, As she did this, one of the little boys began to slip. Anne brought Taffy to a halt and tried to grab the boy’s leg to keep him on the horse, but both boys slipped off. At the same time, Anne called to Julie for help. Peter fell in the vicinity of Taffy’s hind feet; the horse kicked, the hoof of one of her hind legs striking Peter’s skull and injuring him.

Anne, called by the plaintiffs to testify as an adverse party, testified at some length in regard to her experience with horses. She (and her father George) testified that she had been riding since she was nine years old — some five years prior to the accident. George had taught her a little about riding and she had learned some other things from other persons. For the most part, she learned by experience.

Anne had never received any professional training and had never attended a riding school. She stated her understanding of horsemanship, including the manner a horse is controlled by a rider, with particular emphasis upon the use by a rider of legs and feet for control. She also testified concerning her understanding in regard to the manner in which a young child could keep his or her balance upon a horse by using a horse’s mane to hold onto, the purpose and use of a saddle, the movement of a horse’s back while the horse was in motion, and generally in regard to the physical interplay between horse and rider. She was questioned at length in regard to her experience and her under ⁶³⁶ standing as to how one would normally prevent young children from falling from a moving horse while riding bareback, as well as in regard to her understanding as to any risk of falling which might be involved.

The plaintiffs also sought to introduce the testimony of certain expert witnesses. We will mention this testimony later in this opinion when we consider the first question presented to us by the appellants. Helen Franceschina, Peter’s mother, testified in regard to her activities, as well as those of Peter prior to the accident; but she did not witness the accident. We find nothing in the record to indicate that the defendants claimed that Helen had been guilty of contributory negligence, nor was any argument made to the jury to that effect.

In returning the verdict of the jury, the foreman stated, “We find the defendant not guilty of negligence,” and the clerk stated, “Ladies and gentlemen, hearken to your verdict as the Court hath recorded it. Your foreman says you find for the defendant, and so say you all?” The jury answered, “We do.” (1) In considering whether the lower court committed reversible error in declining to admit into evidence the proffered testimony of three expert witnesses in regard to horsemanship, it should be kept in mind that the admissibility of expert testimony generally is within the discretion of the trial court. See Nizer v. Phelps, 252 Md. 185, 193 , 249 A. 2d 112, 117 (1969) ; State, Use of Stickley v. Critzer, 230 Md. 286, 289-90 , 186 A. 2d 586, 588 (1962); Shivers v. Carnaggio, 223 Md. 585, 588 , 165 A. 2d 898, 900 (1960). The party challenging on appeal the ruling of the trial court in regard to the admissibility of expert testimony has the burden of showing an abuse of the trial court’s ⁶³⁷ discretion.

See Shivers v. Carnaggio, 223 Md. at 591-92 , 165 A. 2d at 902 . In this legal setting, we now turn to the relevant facts in regard to the testimony of the experts proffered by the plaintiffs. The first expert witness was Philip Lynch, who had been head of the riding department of McDonogh School for some 32 years. He was recognized as an expert in horsemanship.

He testified that: “The usual thing for a horse to react to any foreign object, whether it be human or otherwise, under its back feet, is to get away from it, and they’ll get away in whatever way is convenient for the horse. Either they’ll go forward, sometimes they’ll kick out, but in any case, they do not like to have their back feet encumbered.” Mr. Lynch, having heard Anne’s testimony, was asked by counsel for the plaintiffs: “In your opinion, should a person of the age, training, background and experience of Anne Hope have anticipated an injury to the rider under the facts you have heard, those facts being small children, three and a half years old, bareback on a horse.” The objection of counsel for the defendants to this question was sustained by the trial court with the comment to the effect that it was the function of the jury and not of the witness to answer this question, it being tantamount to an inquiry of the witness as to whether, in his opinion, Anne had been guilty of negligence. There was no proffer of what Mr. Lynch’s answer to the question would have been. After Mr. Lynch had been excused from the witness stand, counsel for the plaintiffs made the following proffer: “Your Honor, the basis for this proffer, and the basis for the desire to have the testimony of the ⁶³⁸ expert placed into the record is on the basis that we are dealing with a special skill, that is, horseback riding, as distinguished from the normal activities of the everyday person.

Our position is that, first of all, it may be, it may very well be, that members of the jury are not familiar with what precautions should be taken, if any, in horseback riding. We are, as the Court is aware, the testimony concerning this particular fourteen year old girl, is that she was fourteen years old, and had been riding for five years, approximately. She has been under the observance of not only her parents, who have permitted her to ride in the various fashions, saddled and unsaddled, and permitted her to, in their presence, permit children, small children, to ride bareback, single and double, and permitted her to go on her journey into Columbia on this particular day bareback with another girl. We believe it is necessary for the jury to know what the normal or basic standards of riding are.

We believe through this witness we could show that he has taught, as he said, many children, something like a hundred and twenty-five a year in the school, a hundred and seventy-five in the summer time, up to a hundred and seventy-five in the summer time, that he would testify as to what knowledge a fourteen year old would have after five years of riding experience, that he would be able to testify as to what safety precautions should normally be known by a child of that age, fourteen years old, and whateyer the minimal bases are for riding, whether or not it is safe to, first of all, put one child on a bareback horse, a child of three and a half years old, plus being a child, the experience of that three and a half year old being unknown to the owner of the horse, what safety precautions should be taken if one child is placed on a horse, ⁶³⁹ what added risks, if any, there are if two children are placed on a bareback horse, when the experience of neither of the two children are known to the owner of the horse, in this case treating the girl, Anne Victoria Hope, as the owner, whether or not it is prudent and a proper exercise of good judgment to place one — for a fourteen year old with the experience of five years of riding, to place any children of this age on a bareback horse, and also the minimum skills that would be necessary, or would be existent in a fourteen year old who has had five years experience. We think that this type of testimony — we know that this will be forthcoming from Mr. Lynch, our expert in this field, and he would tell, as I said before, the basic minimum requirements of riding and handling a horse when you have five years experience. He would also tell the requirements of, the knowledge and requirements of fourteen years old as to the handling of horses under these basic standard skills. It is our position that, we maintain that the minimum skills of this specified activity of riding are unknown to the jury, at least as far as this case is concerned, we have no knowledge that the jury, what, if anything, they know of riding, and also we feel that the jury does not know the requirements of a fourteen year old as to these basic skills.

That’s basically what our proffer is.” The trial court then stated: “Well, if I may define it briefly ... I understand that you wish to prove the minimum skills of horsemanship, and leave it to the jury to decide whether or not this fourteen year old defendant should have met these minimum skills,” and counsel for the plaintiffs replied, “That’s correct, Your Honor.” The trial court concluded that expert testimony on the points mentioned was irrelevant to the issues in the case and lacked probative value. ⁶⁴⁰ The plaintiffs then called, as an expert witness, Mrs.