University of Vermont AAHS

Hollister v. Gallion

Washington Court of Appeals
UNPUBLISHED, 2002 WL 234784
February 19, 2002

Summary of Opinion

Plaintiff Hollister was injured when she fell off the mule she was riding on a trail ride operated by the defendant Gallion.  The jury found in favor of the defendant and plaintiff appealed.

In this opinion, the Court of Appeals says there was not sufficient evidence of the defendantís negligence to overturn the juryís verdict.  The court also says that the trial court did not make a mistake in permitting the defendant who was present on the trial ride to testify as to what he thought caused the fall even though he did not actually see the fall happen.

Text of Opinion

The trial court entered judgment on a jury verdict in the defendants' favor in plaintiffs' personal injury action seeking recovery for injuries Larkann Hollister sustained when she fell off a mule during a packing trip led by defendant William Gallion. The plaintiffs appeal. We affirm the trial court.


William Gallion operates Rocking Diamond G Outfitters, a horse and mule packing outfit that conducts trips near Crystal Mountain. Gallion volunteered to take Dick and Larkann Hollister and others on a mule trip they had purchased.

During the trip, Mrs. Hollister fell off the mule she was riding and sustained injuries. She and her husband sued Gallion, his wife, and Rocking Diamond G Outfitters, alleging that her injuries were due to the defendants' negligence, particularly Gallion's negligence with regard to the crupper strap on the saddle Mrs. Hollister was using. After trial, the jury returned a verdict in favor of the defendants. The court denied the Hollisters' motion for judgment notwithstanding the verdict and for a new trial.


Admission of William Gallion's testimony Mrs. Hollister was directly behind Gallion when she fell off the mule, and Gallion did not see her fall. After she fell, Gallion turned and saw her on the ground. He dismounted his horse and went back to examine Mrs. Hollister and the mule. He saw that the saddle had moved to the right of its normal position. Gallion's counsel asked Gallion: 'Do you have an understanding of how the saddle got the way it looked to you?' The Hollisters' counsel objected on the ground that the testimony lacked a foundation because Gallion did not see Mrs. Hollister fall. The court overruled the objection. Gallion testified that the saddle's position was the result of Mrs. Hollister's losing her balance and falling off the mule to the right . [FN2] We review the trial court's ruling for abuse of discretion.

FN2. As you heard, Mrs. Hollister was leaning way back in her saddle, almost lying on the back of the horse. She said she had both hands on the reins pulling just as hard as she can, the reins is what we use to turn the horse with. If she was pulling them reins crooked and that horse made one crooked step while the hill was down, was down and left turn, and we'd stopped just previous to this.

By the time she went from here to that partition right there, that's as far as it was from where we had stopped to see if everything was all right, she said she was leaning way back in the saddle just as far as she would lay with her feet as far frontwards as she could. There's a hill going down, I'm assuming she just fell off to the right side because that's the way the corner went. If she was hanging onto them reins, she could've turned that horse just a bit before that, because she said she was pulling back on them reins just as hard as she can, and falling off like that would cause that saddle to turn over.


With that saddle coming over, over to the side and this crupper strap underneath a horse's tail, saddle come over that, she would've pulled it off when she fell off, it was not frontwards like they said it was, something like that. And there's no way you could see, anybody could see that saddle sliding frontwards anyway because the picture's showing you, as soon as this strap tightened up like that and that saddle's going like that, all that mule has to do is push its tail down and break that strap. RP Nov. 9 at 93-94.

The Hollisters argue that the trial court erred by allowing Gallion to testify about the cause of the accident because it was not within his personal knowledge and was therefore inadmissible under ER 602. 'A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.' The defendants argue Gallion's testimony is governed by ER 701. 'If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.'

'ER 701 is a rule of discretion and is intended to emphasize what a witness knows rather than how the witness expresses his or her knowledge.... The rule assumes a witness will testify to observations but permits the witness to resort to inferences and opinions when such testimony will be helpful to the jury.'  [FN6]

FN6. Ashley v. Hall, 138 Wn.2d 151, 155-56, 978 P.2d 1055 (1999).

The trial court did not abuse its discretion by allowing Gallion to testify about causation even though he did not observe Mrs. Hollister falling from the mule. Gallion's opinion was rationally based on his experience as the operator of a mule packing outfit and on his observations of the scene immediately after Mrs. Hollister landed on the ground. The trial court allowed Gallion's testimony to help the jury understand a fact in issue. The trial court did not abuse its discretion in admitting Gallion's testimony.

Jury's verdict

The jury answered 'no' to the verdict question about whether Gallion was negligent. The Hollisters argue that this verdict is not supported by the evidence because the evidence demonstrated that the cause of the accident was Gallion's negligence in failing to inspect the crupper strap, failing to discover that it was worn, and failing to replace it. Their theory is that, because of Gallion's negligence, the strap broke, causing the saddle to move forward and Mrs. Hollister to fall.

We may overturn a jury's verdict only if it is clearly not supported by substantial evidence. Even if we are convinced that the jury has rendered a wrong verdict, we will not substitute our judgment for that of the jury as long as there is evidence which, if believed, supports the verdict rendered.

Here, we find that there is evidence which, if believed, supports the jury's verdict in the defendant's favor. Gallion testified that crupper straps are not necessary to keep a saddle from moving side to side, which he said was the direction the saddle moved as Mrs. Hollister fell off the mule. According to Gallion, a saddle's cinch strap, not the crupper strap, is what keeps the saddle from moving side to side. [FN10] Gallion also testified that he keeps Rocking Diamond G's equipment, including crupper straps, in repair at all times. He is able to inspect crupper straps each time he saddles a horse. He testified that he looks at crupper straps 'all the time.' Reasonable inferences from this testimony are that Gallion would have seen any defect in the crupper strap he used on Mrs. Hollister's mule and that he would have repaired the defect or would have replaced the strap. From this, the jury could have reached its conclusion that Gallion was not negligent. Moreover, Gallion's testimony about the position of the saddle after Mrs. Hollister fell, coupled with his opinion based on his experience, is additional evidence which, if believed, supports the jury's verdict.

FN10. Gallion testified that crupper straps function somewhat like suspenders. That is, if suspenders break, a belt will keep the wearer's pants from falling down. If a crupper strap breaks, the cinch strap will keep the saddle from moving side to side.

Judgment notwithstanding the verdict and new trial

The Hollisters argue that the trial court erred by denying their motion for judgment notwithstanding the verdict or a new trial. We disagree.

In reviewing a JNOV, this court applies the same standard as the trial court. A JNOV is proper only when the court can find, 'as a matter of law, that there is neither evidence nor reasonable inference therefrom sufficient to sustain the verdict.' A motion for a JNOV admits the truth of the opponent's evidence and all inferences that can be reasonably drawn therefrom, and requires the evidence be interpreted most strongly against the moving party and in the light most favorable to the opponent. No element of discretion is involved.

Admitting the truth of Gallion's evidence, including evidence of Gallion's inspection of his equipment and his observations after the fall, and all reasonable inferences that can be drawn therefrom, and interpreting the evidence against the Hollisters, we cannot say, as a matter of law, that there was neither evidence nor reasonable inferences sufficient to sustain the verdict in favor of Gallion. Accordingly, we will not disturb the trial court's denial of the Hollisters' motion for judgment notwithstanding the verdict.

We review an order denying a new trial for abuse of discretion. Because the evidence was sufficient to support the verdict, and because the trial court did not abuse its discretion by allowing Gallion to testify about his opinion on the cause of the accident, we find that the trial court did not abuse its discretion by denying the Hollister's motion for a new trial.

The Hollisters argue that they are entitled to a new trial or judgment notwithstanding the verdict because the judge who presided at trial retired and another judge heard and ruled on their motion for judgment notwithstanding the verdict or for a new trial. The Hollisters contend that they had 'no realistic opportunity' to have their motion heard on the merits because the new judge had not presided over the trial. The new judge, however, properly exercised his discretion to hear and deny the motion.

Jury instructions

The Hollisters assign error to two instructions the court gave on contributory negligence because, they argue, no evidence was presented to show that Mrs. Hollister was contributorily negligent. The jury did not reach the issue of Mrs. Hollister's contributory negligence because it found no negligence on Gallion's part. Therefore, any error in the contributory negligence instructions was harmless and not grounds for reversal.


We affirm the judgment of the trial court.

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