## Facts

- Plaintiff owned a donkey whose forefeet were fettered.
- Plaintiff left the fettered donkey grazing on a public highway.
- Defendant’s servant drove a horse-drawn wagon down a slight descent at a “smartish pace.”
- The wagon struck the donkey, knocked it down, and the wheels ran over it, killing it.
- Evidence indicated the driver was some distance behind the horses, limiting immediate control.
- At trial, the judge instructed that even if leaving the donkey fettered on the road was illegal, plaintiff could recover if the collision could have been avoided by ordinary care by the driver.
- The jury found for plaintiff and awarded 40 shillings.

## Issues

1. Whether plaintiff’s negligence in leaving a fettered donkey on the highway barred recovery under contributory negligence.
2. Whether defendant was liable where, despite plaintiff’s earlier fault, defendant’s driver could have avoided the collision by exercising ordinary care.

## Decision

- The Court of Exchequer denied defendant’s motion for a new trial and upheld the verdict for the plaintiff.
- The court held that plaintiff’s earlier negligence did not defeat recovery where defendant’s driver, by reasonable care, had a later opportunity to avoid the injury and failed to do so.
- The court approved the trial instruction treating the driver’s failure to use ordinary care to avoid the collision as the proximate cause of the harm.

## Legal Principles

- Plaintiff’s negligence bars recovery only when the plaintiff, by ordinary care, could have avoided the consequences of defendant’s negligence.
- Even if plaintiff’s conduct created a dangerous situation, defendant remains liable if defendant could have avoided the harm by exercising ordinary care after the danger became apparent or should have been apparent.
- A road user must operate a vehicle at a pace and with control reasonably calculated to prevent foreseeable harm to others on the highway.
- When defendant has the final effective opportunity to prevent the injury and does not take it, defendant’s later negligence is treated as the legally operative cause despite plaintiff’s earlier fault.

## Conclusion

The court held that plaintiff’s earlier negligence in leaving a fettered donkey on the highway did not bar recovery because the defendant’s driver, exercising ordinary care, had a later opportunity to avoid the collision and failed to do so, making the driver’s negligence the proximate cause of the donkey’s death.


Davies v. Mann, 152 Eng. Rep. 588 (Exch. 1842)