Plaintiff’s donkey was tied on the side of a public highway eating grass. Defendant’s wagon hit the donkey and killed it. Plaintiff brought suit and the jury found in his favor. Mann appealed.
Plaintiff can recover for defendant’s negligence if defendant had a clear chance to avoid the accident and failed to do so.
Plaintiff’s donkey was eating grass on the side of a public highway and was tied to prevent the donkey from getting out of the way of carriage traveling along with it. Defendant’s wagon was traveling down the road, hit and ran over the donkey. The donkey died soon after. Plaintiff sued for defendant’s negligence, but the defendant claimed that plaintiff’s act was illegal too because he tied the donkey on the road and left it unattended.
Can plaintiff recover for defendant’s negligence, if plaintiff was also negligent?
Trial court judgment is affirmed.
The Court reasoned that contributory negligence only bars plaintiff’s recovery when plaintiff could have avoided the consequences of defendant’s negligence by exercising ordinary care. Similarly, plaintiff should be able to recover because defendant could have avoided the accident if he had used ordinary care. In this case, even the donkey was unlawfully on the road, defendant could have avoided injuring the animal through proper care. However, it was defendant failed to do so as he was speeding. The Court ruled that defendant was bound to go along the road at such a pace that would likely prevent mischief. If not, defendant might justify the driving over anything left on the road without being held accountable for his or her own negligence.