Facts
On 18 November 1967, during a horseback ride, the horse ridden by Diana Idtensohn suddenly shied and struck the leg of Mario Karrer, causing an open fracture of the tibia. Karrer then sued Diana Idtensohn and Albert Frei, the owner of the horse, claiming that they were jointly liable for the damage. The District Court of St. Gallen and the Cantonal Court ruled that only Diana Idtensohn was liable and dismissed the claim against Albert Frei. Both parties appealed this decision.Considerations
According to Art. 56 para. 1 CO, the keeper of an animal is liable for the damages caused by it. The keeper is exonerated from this liability only if they prove to have exercised the diligence required by the circumstances or that the damage would have occurred despite this diligence.
To determine who is the keeper, the decisive criterion is that the person exercises control over the animal and has the ability to dispose of it. The owner is not necessarily the keeper, as this status can be transferred to a third party, such as a tenant or temporary user, if they have effective control of the animal and the capacity to provide the required supervision.
In this case, although Albert Frei was the owner of the horse "Globus", it was Diana Idtensohn who had the enjoyment and actual custody of the…