RULE OF LAW RESPECTIXG NEGLIGENCE. 221 



dismissed with costs. It is said (Bac. Abr,, Tit. " Master and Servant ") 

 that if a servant drives his master's cart, and by his negligence suffers 

 the cattle to perish, an action on the case lies against him. In an action 

 of tort for an injurij to the jjerson as Inj careless driving, imrticuJars will 

 be ordered as to the nature and extent of the injuries, or of the claim for 

 compensation on an affidavit ( ^Yiclis v. MacnamarcC). 



The general rule of law respecting negligence is, that although there 

 may have been negligence on the part of the plaintiif, yet unless he 

 might by the exercise of ordinary care have avoided the consequences 

 of the defendant's negligence, he is entitled to recoYev (Davies v. Mann; 

 Bridge Y. The Grand Junction Raihmg Conqmny; ButterfieldY. Forrester). 

 Jn the first of these three cases, the plaintiff having fettered the fore- 

 feet of an ass belonging to him, turned it into a public highway; and 

 at the time in question the ass was grazing on the oflF-side of a road 

 about eight yards wide, when the defendant's waggon with a team of 

 three horses coming down a slight descent, at what the witness termed 

 a smartish pace, ran against the ass, knocked it down, and killed it. It 

 was proved that the driver of the waggon was some little distance 

 behind the horses. ErsMne J. 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, the action was main- 

 tainable against the defendant, and his lordship directed them, if they 

 thought the accident might have been avoided by the exercise of 

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

 they did, with 40s. damages. The Court of Exchequer upheld the 

 ruling. Parke B. said : " Although the ass might have been wrongfully 

 there, still the defendant 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 asleep there, or the purposely running against a carriage going on 

 the wrong side of the road." It is deducible from the opinions of the 

 judges in Butterfield v. Forrester, Bridge v. The Grand Junction Canal 

 Company, Davis v, 3Iann, and Dowell v. The General Steam Navigation 

 Company, which were all referred to in the judgment of the Exchequer 

 Chamber, which affirmed the decision of the Court of Common Pleas in 

 Tuff Y. Warman, — that in actions for injuries by collision, though the 

 damage is not occasioned entirely by the negligence or improper con- 

 duct of the defendant, the plaintiff is still entitled to recover, if he have 

 not so far contributed to the misfortune by his ouni ?iegligence or want of 

 ordinary care, that but for such negligence the misfortune could not 



