Davies v. Mann, 10 M.&W. 545 (Ex.,1842)

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