29^ 



NEGLIGENCE IN THE USE OF HORSES, ETC. 



Question of 

 ordinary care 

 on the part of 

 the plamtiff. 



On the part 

 of the defen- 

 dant. 



Circumstances 

 of the case 

 must be left 

 to the jury. 



Horse injured 

 in being led 

 out of the 

 stable. 



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 plaintiff, 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 Baihvay Company (p), 

 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 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 lying asleep there, or the purposely 

 running against a carriage going on the wrong side of the 

 road" {q). 



In an action for damage occasioned by the defendant's 

 negligence, a material question is, whether or not the 

 plaintiff might have escaped the damage by ordinary care 

 on his own part (r). 



There is negligence, and a want of ordinary care, if a 

 person riding a vicious horse, applies the spur when in 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 (s). 



The defendant however is not excused merely because 

 the plaintiff knew that some danger existed through the 

 defendant's neglect, and voluntarily incurred such danger ; 

 the amount of danger, and the circumstances which led the 

 plaintiff to incur it, are for the consideration of the jury (r). 



Therefore, where Commissioners of Sewers had made a 

 dangerous trench in the only outlet from a mews, putting 

 up no fence, and leaving only a narrow passage, on which 

 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 



{p) Sridge V. The Grand Jimction 

 Bail. Co., 3 M. & W. 244. 



{q) Davies v. Manii, 10 M. & "\V. 

 646. 



()■) Clayards v. Bethick, 12 Q. B. 

 439. 



(s) North V. Smith, 10 C. B., N. S. 

 572. 



