Torts II, Page 624

Davies v. Mann

Exchequer, 1842


Plaintiff shackled the front feet of his donkey and left it grazing on a road when plaintiff came over the nearby hill in his wagon. Plaintiff ran over the donkey, killing it.

Procedural History:

  • The judge told the jury that even though plaintiff fettering his donkey on the road might be illegal, if defendant was still the proximate cause of the injury, an action could be maintained against him. The jury found for plaintiff for damages of 40 shillings.

  • A bencher moved for a new trial on the ground of misdirection.


The defendant did not say that the donkey was not legally in the road, so the court must assume that it was there lawfully. Even if now, defendant might have still avoided injuring the animal, which he did not. Defendant was bound to go at a safe pace. Such a defense would not justify killing a person who was sleeping in the road.


Rule refused.



  • Plaintiff's negligence doesn't bar recovery if defendant can still avoid it

  • Only applies in contributory negligence states.