Citation. 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809)
Brief Fact Summary.
Plaintiff was thrown off his horse and injured on a public road. Plaintiff claimed that his injury was caused by the pole placed by defendant across the road. Plaintiff sued defendant for negligence.
Synopsis of Rule of Law.
Plaintiff cannot recover for defendant’s negligence if plaintiff did not use reasonable and ordinary care to avoid the accident.
Defendant had to place a pole horizontally out of his house across a public road for the purpose of repairing his house. The pole created a partial obstruction of the road, but it was readily visible that people could use the other side of the road for a free passage. Plaintiff was riding a horse on the road in the evening and crashed into the pole. Both plaintiff and his horses were seriously injured. Plaintiff sued defendant for negligence. At trial, witnesses testified that at the time of the accident, the pole was visible from at least 100 yards away.
Can plaintiff recover for defendant’s negligence, if plaintiff was also negligent?
Trial court verdict affirmed. Plaintiff’s contributory negligence bars recovery from defendant.
The Court reasoned that a party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he does not himself use common and ordinary caution to be in the right. One person being at fault does not automatically dispense with another’s use of ordinary care to avoid being harmed. In this case, evidence showed that if plaintiff had used ordinary care, then he would have seen the obstruction. Plaintiff rode his horse at a full gallop and did not see the pole which was obvious and easily avoidable. The accident was entirely plaintiff’s fault.