Daviesv.Mann,10M.&W.545(Ex.,1842)13
that the plaintrff'havingfetteredthe foreJ , it appeared
At the tflal,beforeERSKINE,
a publichighway'andat the sametime
it
into
him,
turned
to
feetof an assbelonging
when
the asswasgrazinqon the off sideof a roadabouteightyardswide'
in question
wagon,with a team of threehorses,comingdown a slightdescent,
the defendant's
at what the witnesstermeda smartishpace,ran againstthe ass,knockedit down,
and the wheelspassingoverit, it diedsoonafter . . . . Thelearnedjudgetold the jury
of
that . . . if theythoughtthat the accidentmight havebeenavoidedby the exercise
ordinarycareon the partoi the driver,to find for the plaintiff.Thejury foundtherrverdict for the plaintiff. . . .
Godsonnow movedfor a new trial,on the groundof misdirection.
fThatis,the defendantSlawyerappealedthe judgmenton the groundthat the judge in the trial
instructedthe jury on the law to be appliedto the factsin this
court had incorrectly
case.lTheact of the plaintiffin turningthe donkeyinto the publichighwaywasan ilfrom that act,the plaintiffwas not entilegalone,and, asthe injuryaroseprincipally
for that injurywhich,but for hisown unlawfulact would never
tled to compensation
haveoccurred. . . . Theprincipleof law,asdeduciblefrom the casesis,that wherean
accidentrsthe resultof faultson both sidesneitherpartycanmaintainan action.Thus,
I1 East60, it was held that one who is injuredby an obin ButtertieMu Forrester,
structionon a highway,againstwhich he fell, cannotmaintainan action,if it appear
that he was ridingwith greatviolenceand want of ordrnarycare,without which he
might haveseenand avoidedthe obstruction.
LORDABINGER,
C.B.[A]sthe defendantmight,by propercare,haveavoidedinjuring the animal,and did not, he is liablefor the consequences
of his negligence,
thoughthe animalmay havebeenimproperlythere.
PARKE,
B. [T]henegligence
whichisto precludea plaintifffrom recovering
in an action of this nature,mustbe suchas that he could,by ordinarycare,haveavoidedthe
consequences
of the defendant'snegligence. . . . [A]lthoughthe assmay havebeen
wrongfullythere,stillthe defendantwas boundto go alongthe roadat sucha pace
aswould be likelyto preventmischief.Werethis not so, a man mightjustifythe driving overgoodsleft on a publichighway,or evenovera man lyingasleepthere,or the
purposely
runningagainsta carriagegoingon the wrong sideof the road . . . .
lNewtrialdenied.l