D was making some repairs to his house on a road and put up a pole across part of the road. There was still a way to get down the road around the pole.
P was riding his horse as quickly as it could go down the road and hit the pole. The pole was clearly visible at 100 yards. P was injured in the fall.
Procedural History:
Trial court found for D.
King's Bench affirmed, found for D.
Issues:
When a P's negligence causes his injuries together with the D's negligence, should P be able to recover?
Holding/Rule:
When a P's negligence causes his injuries together with the D's negligence, P should be barred from recovery.
Reasoning:
If P had used ordinary care, he must have seen the obstruction.
Two things must concur for this action to succeed, an obstrction in the road by the fault of the D and no want of ordinary care to avoid it on part of the P.
Dissent:
None.
Notes:
Contributory negligence!
Defunct in all but four states (AL, NC, VA, MD)
The burden of pleading and proving contributory negligence is on D.
The issue of contributory negligence is usually left to the jury and not ruled upon by the court through summary judgment.
P's negligence will bar recovery only if it is a substantial factor in bringing about the result.
Contributory negligence is not a defense to an intentional tort. This is true of wanton and willful or reckless conduct.
Contributory negligence is still held to be a defense in negligence per se cases.
