308 



NEGLIGENCE IN THE USE OF HORSES, ETC. 



Where negli- 

 gence of the 

 injured party 

 did not con- 

 tribute to the 

 accident. 



Where such 

 negligence 

 occasioned 

 part of the 

 mischief. 



A -R-rongdoer 

 not without 

 the pale of 

 the law. 



Dri\-ing 

 against an 

 Ass left fet- 

 tered on the 

 road. 



ordinary and common care and cantion would not liow- 

 ever have disentitled him to recover, unless it was such 

 that but for the negligence and want of ordinary care 

 and caution the misfortune would not have happened ; or 

 if the defendant might, by the exercise of caution on his 

 part, have avoided the consequences of the neglect or 

 carelessness of the plaintiff." 



Where the negligence of the party injured did not in 

 any degree contrihute to the immediate cause of the acci- 

 dent, such negligence ought not to be set up as an answer to 

 an action brought against the person who committed an 

 injury (c). 



A person who is guilty of negligence, and thereby pro- 

 duces injury to another, cannot set up as a defence that 

 2Kiyt of the mischief would not have arisen if the person 

 had not himself been guilty of some negligence {d). 



As a general liule of law, every one in the conduct of 

 that which may be harmful to others if misconducted, is 

 bound to use due care and skill, and the wrongdoer is not 

 without the pale of the law for this purpose (e). 



Therefore, where the defendant negligently drove his 

 Horses and Waggon against and killed an Ass, which 

 had been left in the highway fettered in the fore feet, 

 and was thus unable to get out of the way of the defen- 

 dant's Waggon, which was going at a smartish pace along 

 the road, Mr. Justice Erskine told the Jury, that though 

 the act of the plaintiff in leaving the Donkey on the 

 Highway so fettered as to prevent his getting out of the 

 way of Carriages travelling along it might be illegal, still 

 if the proximate cause of the injury was attributable to 

 the want of proper conduct on the part of the driver of 

 the Waggon, the action was maintainable against the de- 

 fendant ; and his Lordship directed them, if they thought 

 that the accident might have been avoided by the exercise 

 of ordinary care on the part of the driver, to find for the 

 plaintiif , which they accordingly did. 



The Court of Exchequer refused a rule for a new trial 

 which was applied for on the ground of misdirection ; and 

 Mr. Baron Parke said, " The correct rule is laid down in 

 Bridge v. The Grand Junction Railway Company (/), 



(c) See Greenland V. Chaplin, 5 Ex. 

 248. See also Broitmlow v. Metro- 

 politan Board of Works, 2 F. & F. 

 604. 



{d) Greenland v. Chaplin^ 5 Ex. 

 243. 



(e) See per Lord Denman, C. J., 

 Mayor of Colchester v. Brooke, 7 Q. 

 B. 377. 



( f) Bridge v. The Grand Junction 

 Mailuay Co., 3 M, & W. 246. 



