NEGLIGENT DRIVING. 309 



namely, that the negligence which is to preclude a plain- 

 tiff from recovering in an action of this nature, must be 

 such as that he could by ordinary care have avoided the 

 consequences of the defendant's negligence. Although 

 the Ass may have been wrongfully there, still the de- 

 fendant was bound to go along the road at such a pace as 

 would be likely to prevent mischief. Were this not so, a 

 man might justify the driving over goods left on a public 

 highway, or even over a man lying asleep there, or the 

 purposely running against a Carriage going on the wrong 

 side of the road [g). 



In an action for damage occasioned by the defendant's Question of 

 negligence, a material question is, whether or not the ordinary care 

 plaintiff might have escaped the damage by ordinary care the plamtiff. 

 on his own part {Ji). 



There is negligence, and a want of ordinary care, if a On the part 

 person riding a vicious Horse, applies the spur when in 'f t^® ^e- 

 close proximity to a bystander, and the Horse kicks out 

 and injures him : but there would not be negligence nor 

 a want of ordinary care, if the person riding the Horse is 

 not aware that it is a vicious one, and it suddenly kicks 

 out without provocation, and kills a bystander (/). 



The defendant however is not excused merely because Circumstances 

 the plaintiff knew that some danger existed through the °^ *^®, °^^^., 

 defendant's neglect, and voluntarily incurred such danger; ^o the Jury, 

 the amount of danger, and the circumstances which led the 

 plaintiff to incur it, are for the consideration of the Jury(//). 



Therefore, where Commissioners of Sewers had made a Horse injured 

 dangerous trench in the only outlet from a mews, putting ^^ ?%°? ^^^ 

 up no fence, and leaving only a narrow passage, on Avhich stable, 

 they heaped rubbish, and a Cabman, in the exercise of his 

 calling, attempted to lead his Horse out over the rubbish, 

 and the Horse fell and was killed, for which loss he 

 brought an action : — It was held by the Court of Queen's 

 Bench that the plaintiff was not disentitled to recover 

 because he had, at some hazard created by the defendants, 

 brought his Horse out of the stable. Also, that the case 

 was properly left to the Jury on the question whether or 

 not the plaintiff had persisted, contrary to express warning 

 at the time (as to which there was contradictory evidence), 

 in running upon a great and obvious danger (A). 



{g) Bavies v. Mann, 10 M. & W. 439. 

 546. (0 North v. Smith, 10 C. B., 



[h) Clayards v. Dethich, 12 Q. B. N. S. 572. 



