Even if another actor was initially negligent, should a defendant who has the 'last clear chance' to avoid an accident be made to pay if he or she fails to do so? The plaintiff illegally left his donkey fettered on a public highway. Defendant--who was driving his wagon at a "smartish" pace--ran over and killed the donkey. The accident may have been avoided if the defendant had been driving more slowly.
Exch. of Pleas. Nov. 4, 1842.—The general rule of law respecting negligence is, that although there may have been negligence on the part of the plaintiff, yet unless he might by the exercise of ordinary care have avoided the consequences of the defendant's negligence, he is entitled to recover. Therefore, where the defendant negligently drove his horses and waggon against and killed an ass, which bad been left in the highway fettered in the fore-feet, and thus unable to get out of the way of the defendant's waggon, which was going at a smartish pace along the road, it was held, that the jury were properly directed, that although it was an illegal act on the part of the plaintiff so to put the animal on the highway, the plaintiff was entitled to recover.
[S.C. 12 L.J. Ex. 10; 6 Jur. 954. Applied, Dimes v. Petley, 1850, 15 Q. B. 276; Tuff v. Warman, 1858, 5 C.B. (N. S.) 573; The Bernina (2), 1887, 12 P. D. 89: affirmed nomine Mills v. Armstrong, 13 A.C. 1; The Altair,  P. 105. Approved, Radley v. London and North Western Railway Company, 1876, 1 A.C. 759. Followed, Cayzer v. Canon Company, 1884, 9 A.C. 873. Explained, The Vera Cruz, 1884, 9 P.D. 94. Referred to, Armstrong v. Lancashire and Yorkshire Railway Company, 1875, L.R. 10 Ex. 52; Spaight v. Tedcastle, 1881, 6A.C. 226; Lee v. Nixey, 1890, 63 L.T. 286; The Highland Loch,  P. 280.]
Case for negligence. The declaration stated, that the plaintiff theretofore, and at the time of the committing of the grievance thereinafter mentioned, to wit, on &c., was lawfully possessed of a certain donkey, which said donkey of the plaintiff was then lawfully in a certain highway, and the defendant was then possessed of a certain waggon and certain horses drawing the same, which said waggon and horses of the defendant were then under the care, government, and direction of a certain then servant of the defendant, in and along the said highway; nevertheless the defendant, by his said servant, so carelessly, negligently, unskilfully, and improperly governed and directed his said waggon and horses, that by and through the carelessness, negligence, unskilfulness, and improper conduct of the defendant, by his said servant, the said waggon and horses of the defendant then ran and struck with great violence against the said donkey of the plaintiff, and thereby then wounded, crushed, and killed the same, &c.
The defendant pleaded not guilty.
At the trial, before Erskine, J., at the last The Courts of Assize, or Assizes, were periodic criminal courts held around England and Wales until 1972, when together with the Quarter Sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court .<http://en.wikipedia.org/wiki/Assizes> [#21693]Summer As [10 M. & W. 547] sizes for the county of Worcester, it appeared that 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 off 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 the wheels passing over it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the waggon was some little distance behind the horses. The learned Judge 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 defendant; 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 plaintiff. The jury found their verdict for the plaintiff; damages 40s.
Godson now moved for a new trial, on the ground of misdirection. The act of the plaintiff in turning the donkey into the public highway was an illegal one, and, as the injury arose principally from that act, the plaintiff was not entitled to compensation for that injury which, but for his own unlawful act, would never have occurred. (Parke, B. The declaration states that the ass was lawfully on the highway, and the defendant bas not traversed that allegation; therefore it must be taken [152 Eng. Rep. 589] to be admitted.) The principle of law, as deducible from the cases, is, that where an accident is the result of faults on both sides, neither party can maintain an action. Thus, in Butterfield v. Forrester (11 East, 60), [10 M. & W. 548]it was held that one who is injured by an obstruction on a highway, against which he fell, cannot maintain an action, if it appear that he was riding with great violence and want of ordinary care, without which he might have seen and avoided the obstruction. So, in Vennall v. Garner (1 C. & M. 21), in case for running down a ship, it was held, that neither party can recover when both are in the wrong; and Bayley, B., there says, “I quite agree that if the mischief be the result of the combined negligence of the two, they must both remain in statu quo, and neither party can recover against the other.” Here the plaintiff, by fettering the donkey, had prevented him from removing himself out of the way of accident; had his fore feet been free, no accident would probably have happened. Pluckwell v. Wilson (5 Carr. & P. 375), Luxford v. Large (ibid. 421), and Lynch v. Nurdin (1 Ad. & E. (N. S.), 29; 4 P. & D. 672), are to the same effect.
LORD ABINGER, C. B. I am of opinion that there ought to be no rule in this case. The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.
PARKE, B. This subject was fully considered by this Court in the case of Bridge v. The Grand Junction Railway Company (3 M. & W. 246), where, as appears to me, the correct rule is laid down concerning negligence, namely, that the negligence which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could, by [10 M. & W. 549]ordinary care, have avoided the consequences of the defendant's negligence. I am reported to have said in that case, and I believe quite correctly, that “the rule of law is laid down with perfect correctness in the case of Butterfield v. Forrester, that, although there may have been negligence on the part of the plaintiff, yet unless be might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover; if by ordinary care he might have avoided them, he is the author of his own wrong.” In that case of Bridge v. Grand Junction Railway Company, there was a plea imputing negligence on both sides; here it is otherwise; and the Judge simply told the jury, that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway, was no answer to the action, unless the donkey's being there was the immediate cause of the injury ; and that, if they were of opinion that it was caused by the fault of the defendant's servant in driving too fast, or, which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road would not bar the plaintiff of his action. All that is perfectly correct; for, 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.
GURNEY, B., and ROLFE, B., concurred.