Plaintiff let his donkey graze on the side of a public highway. Defendant’s wagon, which was traveling at a high speed, ran over the donkey and killed it. Plaintiff sued to recover for damages.
If a person, by exercising proper care, could have avoided the danger, then he or she is liable for the consequences of his or her negligence.
Davies (plaintiff) fettered, or restrained, the front feet of his donkey. He let the donkey graze on the side of a public highway. Mann’s (defendant) wagon sped down the highway at “a smartish pace.” The wagon, driven by a team of three horses, struck and killed the donkey. Davies sued Mann to recover for damages. At trial, the judge instructed the jury that even if it was illegal to leave the donkey on the side of the highway, if the cause of the injury was attributable to Mann, then Mann should be found liable. The jury found for Davies, awarding him damages in the amount of forty shillings. Mann appealed, moving for a new trial.
Whether the plaintiff, who acted also negligently, can still recover when the defendant had the last opportunity to avoid an accident by exercising proper care?
Yes. If the defendant, by exercising proper care, could have avoided the accident, then he or she is liable for the consequences of his or her negligence. Here, Mann should have exercised proper care when traveling down the highway. If he had not driven at “a smartish pace,” then his wagon could have avoided striking the donkey. The motion for the new trial is denied.
Justice B. Parke
Mann was bound to travel at such a pace as “to prevent mischief.” Although the donkey may have wrongfully been on the side of the road, Mann’s negligence by traversing down the highway at a high speed contributed to the accident. If it were otherwise, then the law might justify a person driving over goods left on a highway, or even running over a man who was asleep on the road.
Whether the donkey was lawfully on the side of the highway makes no difference. If the Mann had exercised proper care when traveling down the highway, then the accident could have been avoided.