Davies v. Mann

Facts

The plaintiff fettered the fore-feet of his donkey and left it on a narrow highway. The defendant, driving his wagon drawn by horses too fast, negligently ran over and killed the donkey. Although the plaintiff was himself negligent in leaving the fettered animal on the road, the defendant could have avoided the collision by exercising ordinary care.

Issues

• Does the plaintiff's own negligence wholly bar his claim where the defendant could have avoided the harm?
• Who bears liability where both parties are negligent?

Arguments

The defendant pleaded contributory negligence, arguing the plaintiff had wrongfully left the donkey on the highway. The plaintiff argued the defendant, by driving with ordinary care, could and should have avoided the animal.

Held

The Court held the plaintiff entitled to recover despite his own negligence, because the defendant had the last opportunity to avoid the accident and failed to take it. Parke B reasoned that, were it otherwise, a man might justify driving over goods, or even a man lying asleep, on a public highway. The defendant's want of ordinary care was the decisive cause.

Ratio decidendi

Where both parties are negligent, the party who had the last opportunity of avoiding the accident by the exercise of ordinary care is liable for the resulting loss (the 'last opportunity' or 'last chance' rule).

Significance

The classic origin of the last-opportunity rule that mitigated the harsh common-law bar of contributory negligence; approved in Radley v. L. & N.W. Ry. and extended in British Columbia Electric Co. v. Loach, and a staple of contributory-negligence doctrine before apportionment statutes.

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