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STEPHENSON v. COLLEGE MISERICORDIA

March 6, 1974

Lorelei A. STEPHENSON, a minor, et al., Plaintiffs,
v.
COLLEGE MISERICORDIA et al., Defendants


Muir, District Judge.


The opinion of the court was delivered by: MUIR

I. Introduction

 The Plaintiff, Lorelei Stephenson, while a student at College Misericordia, in Dallas, Pennsylvania, elected to take a course in horseback riding at Highland Acres Equestrian Center in order to fulfill the College's physical education requirements. During the course of instruction, the Plaintiff fell from a horse and sustained an injury to her left elbow. The riding instruction was given by Mrs. H. Bogdon, an officer of the Highland Acres Corporation.

 The issues to which the new trial motion is addressed are Plaintiff's alleged assumption of the risk *fn1" and contributory negligence. *fn2"

 QUESTIONS PRESENTED BY PLAINTIFF'S MOTION FOR A NEW TRIAL

 1. Should consideration of Plaintiff's assumption of the risk have been allowed to go to the jury?

 2. Were the answers of the jury respecting Plaintiff's conduct inconsistent with each other in view of the Court's charge to the jury?

 II. Discussion.

 The Plaintiff did not object to the Court's charge on assumption of the risk or to the question submitted to the jury. *fn3" During its deliberations, the court at the jury's request re-read the charge on assumption of risk. At no time during the trial did counsel for the Plaintiff object to the language of the charge on assumption of risk. Absent "fundamental" and "highly prejudicial" error, an unobjected to charge may not be attacked on a motion for new trial. Harkins v. Ford Motor Co., 437 F.2d 276, 278 (3d Cir. 1970). An instruction on the law which is not warranted by the facts must also be objected to, or the objection is waived. Flick v. James Monfredo, 356 F. Supp. 1143, 1147 (E.D.Pa.1973). A new trial will be granted, where there has been a failure to adhere to the rule, if "the Court's charge was totally inadequate to provide even the barest legal guideposts to aid the jury in rationally reaching a decision." McNello v. Kelly, 283 F.2d 96, 102 (3d Cir. 1960). That is not the case here. Plaintiff is now foreclosed from raising an issue over the submission of the assumption of the risk defense to the jury.

 At the time of the trial, none of the counsel or the court realized that the assumption of the risk portion of the charge overlapped the definition given for contributory negligence, *fn4" and that the questions given to the jury were hence susceptible of inconsistent answers. Rule 49(a) relating to special verdicts does not contain any reference to inconsistent answers although Rule 49(b) relating to a general verdict accompanied by answers to interrogatories covers the point.

 Despite the silence of Rule 49(a) on inconsistent answers, it is my view that Plaintiff should not be prevented from challenging inconsistent findings of the jury.

 The Plaintiff was a college student of obvious intelligence and awareness. She had been on a horse prior to this accident. The Plaintiff's own expert testified that ". . . everyone who takes riding lessons is practically guaranteed to fall at least once." On the basis of the facts adduced at trial, the jury could easily conclude that the Plaintiff was aware of the danger of a fall from a horse and that she voluntarily accepted the risk when she took riding instructions. See Green v. Philadelphia Gas Works, 333 F. Supp. 1398 (E.D.Pa.1971). In affirming the Green decision, the Court of Appeals said: "the cases emphasize that the jury is to apply its own common sense when knowledge of a risk is widely known and appreciated." Green v. Parisi, 478 F.2d 313, 317 (3d Cir. 1973).

 The Plaintiff reasons that under the instruction given there could not be a finding that the Plaintiff was free of negligence while ...


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