(dissenting) — Plaintiff alleged that defendants, owners of a commercial riding stable, failed to provide safe premises to the plaintiff, a business invitee, as a result of which she was injured. The jury awarded plaintiff a $20,000 verdict but found plaintiff 50 percent guilty of contributory negligence and reduced its verdict proportionately. The trial court later granted defendants' post-trial motion for a judgment n.o.v. The onlv/issue on appeal is whether there was sufficient evidence of defendants' negligence to support the verdict.
*208In passing upon a motion for judgment n.o.v. or a new trial, the evidence, and all reasonable inferences therefrom, must be viewed in a light most favorable to the nonmoving party, and if there is substantial evidence supporting the jury verdict, the verdict must stand. Haft v. Northern Pac. Ry., 64 Wn.2d 957, 395 P.2d 482 (1964).
The majority opinion adequately describes the facts as to how the accident happened so I will not repeat them other than to stress that plaintiff was a paid patron of the riding academy and that the riderless horse "Midnight" which caused the accident, was kept in an adjacent barn and field area where it was being boarded by its owner with defendants.
Defendants owed plaintiff a duty to provide safe riding stables and to warn of any known dangerous condition on the premises. Restatement (Second) of Torts § 342 (1965); Memel v. Reimer, 85 Wn.2d 685, 538 P.2d 517 (1975); and Miniken v. Carr, 71 Wn.2d 325, 428 P.2d 716 (1967). Contrary to the majority's opinion, plaintiff's remedy is not exclusively predicated upon plaintiff's proof of defendants' knowledge of the viciousness or vicious propensities of the rented and/or boarded horse.2
It is sufficient, in holding the defendants liable, if plaintiff proves that defendants knew or by the exercise of reasonable care should have known of the inclination or propensity of the riderless horse to do the particular mischief that was the cause of the harm. Herbert v. Ziegler, 216 Md. 212, 139 A.2d 699 (1958). See Palmquist v. Mercer, 43 Cal. 2d 92, 272 P.2d 26 (1954), holding that a stable-keeper has a duty to inform himself of the habits and disposition of horses which he keeps in his stable for hire.
The testimony at trial indicated the following:
*2091. That defendants knew that it was not unusual for geldings out in the field to nip each other:
Q During the previous two years, did you notice any vicious propensity of Midnight?
A Not any more so than other horses. They all get a little cranky sometimes.
Q Explain what you mean by that.
A Well, I think more horses bite and kick more because they are jealous rather than whether they are male or female. I often wish they could talk because you just never know just what they are thinking. Quite often sometimes they are only playing. The geldings particularly spend hours out in the field playing and kind of nipping each other. A lot of people think they are fighting.
A I might point out that even when we ride down the field, possibly five to ten horses at a time, sometimes a horse will even kind of go over and try to bite another horse. There is just no way you can keep it from it. No way you can know it is going to happen.
(Italics mine.)
2. Defendants admitted that Midnight was to be "stalled":
Q Now, do you remember where the horse Midnight was kept?
A Well, actually, most of the time if they can afford, all the kids would like to have the stall, but if they can afford — we do charge extra, $10, because of sawdust and things, and Midnight was kept in a stall.
Q He was a stall horse?
A Yes.
3. Defendants admitted that they did not care if the creek fence was up or not, which fence could have prevented Midnight from entering the riding area: (Kelly— cross)
Q Well, what is your practice? Is it to keep it across there and have that gate system or is it to have it down?
A Like I say, it is so wet out there that it is quite a problem keeping the grass, you know, growing, and so when it is wet we try to keep it closed so the horses *210don't get in it and tear up the pasture. Otherwise, we really don't worry about it.
Q Otherwise you don't care whether it is open or not, I take it?
A No.
(Italics mine).
4. Defendants admitted there had been prior incidents with riderless horses:
Q Had you ever had problems prior to this accident with riderless horses in the fields before?
A There have probably been incidents. I don't remember any right now.
Q You say there probably have been incidents?
A Over the years there must have been. Somebody must have — some horse must have tried to bite another horse, I am sure.
Q How about with another horse that had a rider on?
A That, too. In fact, I am sure our children have had horses bite at their horses when they are riding.
Q Did you take any precautions at all to keep the riderless horses out of the areas where the horses were being riddenl
A As a rule we chased them out because they can be a nuisance as people are riding and other horses are eating.
(Italics mine.)
5. Defendants never gave students any specific instructions what to do if chased by a riderless horse:
Q (By Mr. Oberquell) No. My question is whether your instructions related to being chased by a riderless horse.
A Well, I probably didn't everybody. I have no way of knowing. I can't remember everything.
Q Did you to Barbara?
A I really wouldn't know. Over the hundreds of people, I couldn't—
Q Did you give any specific instructions to Margaret as to what to tell people to do in a situation if they were being chased by a riderless horse?
A I don't know.
*211Q Did you ever have any discussion with her as to whether or not there should be some written instructions as contrasted to just verbal instructions?
A No. Probably the larger stables do things better than we do. I don't know. We just don’t have the time.
(Italics mine.)
6. Defendants admitted that it was their ordinary procedure to keep the riderless horses away from where the lessons were being given:
Q I believe you stated that your procedure was to keep the riderless horses away from where the lessons were being given?
The Witness: I said that we usually did.
(Italics mine).
7. Prior to February 3, 1973 (the day of the accident) defendants had incidents of riderless horses interfering with patrons riding:
Q Page 15 I asked you commencing on line 13, "At the time of the accident of February 3rd, 1973, what was your custom and procedure regarding allowing riderless horses to be in where people are riding horses?" And you answered, "Our horses are just like a bunch of big dogs. They just wander around."
A That is true.
Q So, that was your custom and procedure, to let them wander wherever they wanted to?
A Well, there again if I had time and I thought they would be a nuisance, I would chase them out of the field or have somebody do it.
Q On page 16 commencing at line 11, I asked you, "Did you ever have any occasion prior to February 3, 1973, of a riderless horse coming in and interfering with the riding in any way?” And you answered, "Yes, I think so."
(Italics mine.)
8. Procedure when riderless horses wandered into instruction area:
Q And what was your procedure as far as having riderless horses in there when you were giving instructions?
*212A If they wandered into the area where I was teaching, I would shoo them away.
(Italics mine.)
From the above testimony, if believed, it is clear the jury could find that defendants knew of prior incidents where riderless horses had come into the area where students were practicing their lessons, and nipped other horses, and that in the subject case defendants were negligent in not taking proper precautions to protect the public in general, and plaintiff in particular, in keeping riderless horses out of the riding area, which caused plaintiff's injuries. The jury could have determined, from the evidence, that by keeping the gate closed between the area where horses were boarded and the instruction area, plaintiff's accident would have been prevented.
The above cited testimony constitutes substantial evidence of defendants' (1) duty to keep riderless horses from the instruction area, (2) failure to take adequate steps to prevent the horses from entering the riding area, and (3) breach of duty causing plaintiff's injuries.
To merely post a sign reading "Ride and visit at your own risk" is an attempted disclaimer of defendants' future negligence, which is against public policy and will not be enforced. Ramsden v. Grimshaw, 23 Wn.2d 864, 162 P.2d 901 (1945); King Logging Co. v. Scalzo, 16 Wn. App. 918, 561 P.2d 206 (1977). In any event, the jury by their verdict found the sign totally inadequate to advise students paying for riding instructions of the particular danger the owner had in mind.
As there is substantial and credible evidence to support the jury verdict, it should be reinstated.
I would reverse and reinstate the verdict.
Petition for rehearing denied October 17, 1978.
Review granted by Supreme Court February 16, 1979.
See Dam v. Lake Aliso Riding School, 48 P.2d 98 (Cal. Dist. Ct. App. 1935), where the court stated at page 100: "Knowledge of the viciousness of an animal is essential except when the animal is hired, and in such an instance when the bailee seeks to recover for injuries the plaintiffs case is complete if injuries are shown and it is proved that defendant did not use ordinary care in furnishing an animal for the purpose for which it was hired."