¶1The negligence of the defendants was'predicated upon the failure, first, to furbish the plaintiff with a properly equipped saddle aiid horse; and, second, to place them in liis hands with the saddle properly adjusted. These grounds,' because not -consistent, should-not be confused, and unless there was evidence to sustain a recovery upon either ground, and unless the distinction between the separate grounds was clearly presented for the considération of the jury, confusion was likely to ensue, and a mistrial occur.
¶2Upon the question of whether or" not the defendants failed in their duty -to place the plaintiff in possession of a saddle properly adjusted upon the horse, the evidence shows that after leaving the stable and upon reaching the park, the attention of the plaintiff was-called to his saddle,, and thereupon it was adjusted by a police officer, and thereafter the plaintiff continued his ride, and-after reaching Claremont; at the upper .end of Biverside drive, the horse was placed in the shed, where he remained for half an hour. While it was suggested that it was the custom to loosen the saddle while the horse was standing,, and then to adjust it- again when the party was. ready to remount, there is no evidence directly upon that point, but we have the fact that the plaintiff, either with or without -examining whether the saddle was properly adjusted,, remounted *179and proceeded to ride home. In this state of the record, it is clear that the defendants conld not be held responsible for the injuries which the plaintiff suffered, if they resulted from an improper adjustment of the saddle upon the horse, because such obligation as rested in this respect upon the defendants was violated at the time the horse left the riding academy; and it appearing that the attention of the plaintiff was called to that fact, and that the saddle was adjusted in the park, and the plaintiff thereafter continued to ride, we are necessarily brought to the conclusion, either that the failure to adjust the saddle properly in the first instance had no bearing upon the accident which culminated in the injuries, or if we assume that the saddle left the riding academy without being properly adjusted, the plaintiff had .notice of this fact, and undertook to remedy it, and if without doing it so as to render the saddle safe he proceeded on his ride, he was guilty of négligence which contributed to his injuries, and which would bar his recovery.
¶3In the condition of the record, therefore, as it stood at the close of the case, it became the duty of the court to dismiss from the consideration of the jury this ground of recovery, and if the plaintiff was entitled to damages it could only be upon the other ground, namely, that the defendants failed in their duty to furnish the plaintiff with a properly equipped saddle and horse. There was testimony unquestionably from which the jury could infer that the accident was due to this cause, the evidence pointing to the fSct that the saddle was in poor condition,' the buckles and leather composing the straps, permitting the tongue of the buckle, when a strain was placed on the horse, as in galloping down hill, to draw through the leather, and thus, by increasing the size and length of the saddle girths, to permit the saddle itself to slip. The plaintiff could not, as matter of law, be held guilty of negligence in assuming that the saddle was equipped with all necessary and proper appliances, and as the question whether the officer in the park called attention to the fact that these defects rendered the saddle unsafe was placed in dispute by the testimony of the officer and that of the plaintiff, the latter stating that upon adjusting the saddle he was told by the officer that it would hold, the question of plaintiff’s contributory negligence, therefore", was one of fact to be disposed of by the jury.
¶4In his charge, however, the judge neglected to present clearly the *180two distinct theories upon which a, recovery was. sought, or, as stated, to eliminate from the consideration of the jury the question of the adjustment of the saddle. The: man in charge: of .the defendants’ .saddle room was called .and brought with him a saddle .'and girths complete, which were in a perfectly proper condition,, and which were put in evidence and exhibited to the jury, and he testified that. they were the saddle and girths Used on the occasion, of the accident. The defendants’ counsel asiced the court to charge that “ if thé jury believe that the saddle used was the one shown in court, and that the trappings were unchanged since the accident, they must find for the defendants.-” The Court: If they find that is the saddle and that that saddle was all right and was properly fastened, properly adjusted and girded, then you will find for the defbndants: But it might have been that saddle and not properly girded.” It will thus be seen that a proposition which the defendants were entitled to have charged was not charged as requested,, but. was involved with the other ground upon wliich the defendants’1 liability was sought to be placed, namely,, the proper: fastening and adjitstment. of' the saddle. This could not but. have produced confusion in the minds of the jury, and it not only prevented them from considering the single, ground upon which a recovery upon this testimony, could be upheld, but left them to determine such liability upon the. other ground of the improper adjustment of the saddle.
¶5$or the reasons stated, therefore, we think that the errors committed upon the trial, require that the judgment should be reversed and a new trial ordered, with costs to appellant tip abide event..
¶6Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.
¶7Judgment reversed and hew trial ordered, costs .to appellant'to abide event.