Torts II, Pages 619–620

Butterfield v. Forrester

King's Bench, 1809

Facts:

Defendant was repairing his house by the road, so he put up a pole across that part of the road. Plaintiff was then riding home at 8 o'clock, not long after dusk. He was riding fast and did not see the pole and so he rode directly into it and both he and horse were knocked down thereby.

Procedural History:

  • The trial judge directed the jury that if a person riding at an ordinary speed could have avoided the obstruction but that plaintiff was riding very fast without ordinary care, they should find for the defendant, which they did.

  • The serjeant-at-law objected, moving for a new trial based on a rule saying that one may bring action if his horse flings him because someone laid logs across a highway.

Reasoning:

People should not hurt themselves and then sue over it if they do not use common sense themselves. One person being at fault does not be that the other does not have to use ordinary care.

Rule/Holding:

Two things must concur to support this action,

  • an obstruction in the road by the fault of the defendant, and
  • no want of ordinary care to avoid it on the part of the plaintiff.

Judgment:

Rule refused.

Note:

Origin of contributory negligence, which completely bars recovery.

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