Butterfield v. Forrester
King's Bench England - 1809
- 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.
- Trial court found for D.
- King's Bench affirmed, found for D.
- When a P's negligence causes his injuries together with the D's negligence, should P be able to recover?
- When a P's negligence causes his injuries together with the D's negligence, P should be barred from recovery.
- 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.
- 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.