Butterfield v. Forrester
11 East 59, 103 Eng. Rep. 926 (1809)
Forrester was working on his house and left a large pole
lying in the road. Butterfield came riding along on his horse and the
horse tripped over the pole and fell. Butterfield sued.
Witnesses testified that it was light enough out to see
the pole from 100 feet away, and that Butterfield was "riding
The English Court found for Forrester and dismissed the case.
The Court found that if Butterfield had used ordinary
care he would have been able to avoid the obstruction, therefore the
accident was entirely his fault.
Even though Forrester was negligent, the accident
would not have occurred without Butterfield's negligence. Both
parties were therefore equally at fault for the accident and Butterfield gets nothing.
This case developed the rule of contributory negligence.
As long as the defendant's act was not "reckless or
wanton," recovery is completely barred, even in cases of extreme negligence,
where the plaintiff does not exercise ordinary care for their own safety.
Under contributory negligence, the plaintiff gets
Later on, this rule was modified so that the plaintiff
could get some (although not 100%) recovery, even if they did not
exercise ordinary care.
Awarding percentages of damage based on comparative
fault is known as comparative negligence.
In the similar case of Davies v. Mann (10 M. &
W. 546, 152 Eng. Rep. 588 (exch. 1842)), the doctrine was refined further
to inquire who had the last clear chance to avoid the accident.
In that case, the Court said, "Unless the plaintiff
might, by exercise of ordinary care, have avoided the consequences of the
defendant's negligence, he is entitled to recover. If the rule were
otherwise a man might justify the driving over goods left on a public
highway, or even a man lying asleep there."
The last clear chance doctrine is also known as
the discovered peril doctrine.