27 Mo. 95 | Mo. | 1858
delivered the opinion of the court.
The rule that there can be no recovery when both plaintiff and defendant are in fault, and each, by his negligence or otherwise, has contributed proximately and directly to the injury, has its most frequent application in cases of collisions of vessels, carriages and like vehicles, when they are in motion and on the public thoroughfares. But in such collisions, if one party finds the other in fault, he can not wantonly or intentionally inflict an injury upon him. The principle above stated does not apply to cases in which the fault or neglect of the plaintiff has contributed remotely to the injury. Because one has committed a fault or been guilty of a negligence, he does not thereby place himself at the mercy of every one who may encounter or come in the way of the object in relation to which the fault or negligence has been committed or imputed. If a person discovers that a fault has been committed by another, he is not thereby released from the obligation of conducting himself with ordinary care
In the case of Butterfield v. Forrester, 11 East, 60,- tlie defendant, for tlie purpose of making some repairs to bis bouse wbicb was close to tbe road-side at one end of tlie town, had put up a pole across this part of the road, a free passage being left by another branch or street in the same direction. The plaintiff at an hour in the evening when there was light enough to discover the obstruction at the distance of one hundred yards was riding very violently, and, not observing the obstruction, his horse ran against it and fell with his rider, who was much hurt in consequence of the accident. In answer to the plaintiff’s action, Lord Ellenborougli said, a party is not to cast himself upon an obstruction which has been made by the fault of another and avail himself of it, if he do not himself use ordinary and common caution to be in the right. In cases of persons riding upon what is considered the wrong side of the road, that would not authorize another purposely to ride up against them. One person being in fault, will not dispense with another’s using ordinary care for himself. 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. In the case of Davis v. Mann, 10 Mees. & Weis. 545, the plaintiff, having fettered the fore feet of an ass, turned it into a public highway, and as the ass was grazing on the side of the road about eight yards wide, the defendant’s wagon with three horses, the driver being behind, coming down a descent at a smart pace, ran against the ass, knocked it down, and the wheels running over it it soon after died. The plaintiff recovered. The court said, that, although the ass was wrongfully on the road, that the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road. In
We are of the opinion that the instructions given put the law of the case correctly to the jury, and, although some of the refused instructions may have contained correct legal propositions, yet, as the instructions given embodied the law of the case, the defendant was not prejudiced hy their refusal.