Court case(1842) 10 M and W 546

The plaintiff fettered the forefeet of his donkey and turned it out to graze on the side of a public highway, where, being fettered, it could not get out of the way of traffic. The defendant's wagon, drawn by a team of three horses, came down a slight descent at what a witness called a "smartish pace", with the driver some distance behind the horses, and ran over and killed the donkey. The plaintiff sued for its value. The defendant argued that the plaintiff's own negligence in leaving the fettered animal on the highway barred his claim.

The Court of Exchequer upheld a verdict for the plaintiff. The judge had directed the jury that, although the plaintiff was negligent in leaving the donkey there, if the proximate cause of the injury was the want of proper conduct on the part of the driver, and the accident could have been avoided by ordinary care, the plaintiff was entitled to recover. Parke B. said that, although the ass may have been wrongfully there, the defendant was still 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 running against a carriage going on the wrong side of the road.