## Facts

- Clayards, a cab proprietor, occupied a stable opening into Gower Mews, which was his only outlet to the public highway.
- Defendants, acting in connection with sewer works, dug a deep, wide trench along the mews and heaped earth, gravel, and rubbish there.
- Defendants did not erect fencing or other protective measures, leaving only a narrow, hazardous passage.
- In the ordinary course of business, Clayards attempted to lead a horse out via the obstructed outlet; the horse fell into or with the rubbish/trench area and was killed.
- Evidence conflicted on whether Clayards had been expressly warned at the time not to attempt the passage.
- A jury found for Clayards and awarded damages for the value of the horse.

## Issues

1. Whether a plaintiff is barred from recovery merely because he knew of a danger created by the defendant’s negligence and proceeded despite that knowledge.
2. Whether the degree of danger and the reasonableness of the plaintiff’s conduct are questions of law for the court or questions of fact for the jury, including whether the plaintiff persisted contrary to an express warning.

## Decision

- The Queen’s Bench refused to set aside the verdict or enter a nonsuit and left the plaintiff’s verdict undisturbed.
- The court held that the plaintiff was not automatically disentitled to recover simply because he incurred some known risk created by the defendants.
- The court held the case was properly left to the jury on whether the plaintiff acted with ordinary care, including whether he persisted against an express warning in the face of a great and obvious danger.

## Legal Principles

- In negligence actions, a key inquiry is whether the plaintiff could have avoided the harm by ordinary care.
- A defendant is not excused merely because the plaintiff knew some danger existed due to the defendant’s neglect and voluntarily encountered it.
- The degree of danger and the circumstances prompting the plaintiff to proceed are factual matters for the jury.
- Where evidence is conflicting on warnings and the obviousness or magnitude of the risk, contributory negligence or voluntary assumption of risk is typically for the jury rather than a categorical bar as a matter of law.

## Conclusion

The court upheld a plaintiff’s recovery for loss caused by an unguarded trench obstructing the only exit from his stable, ruling that knowledge of danger did not automatically defeat the claim and that the reasonableness of proceeding, given the risk and surrounding circumstances, was for the jury to decide.


Clayards v. Dethick, 116 Eng. Rep. 932 (Q.B. 1848)