Doyle v Kinahan

• Jurisdiction: Ireland
• Judgment Date: 08 February 1869
• Date: 08 February 1869
• Court: Exchequer (Ireland)

Exchequer.

Before PIGOT, C. B., FITZGERALD and DEASY, BB.

DOYLE

and

KINAHAN

Tuff v. WarmanENR 5 C. B. N. S. 573.

Scott v. Dublin and Wicklow Railway CompanyUNK 11 Ir. C. L. R. 377.

Davies v. MannENR 10 M. & W. 548.

Scott v. Dublin and Wicklow Railway CompanyUNK 11 Ir. C. L. R. 393, 398.

Luxford v. LargeENR 5 Car. & P. 421.

Woolf v. BeardENR 8 Car. & P. 373.

Morrison v. The General Steam Navigation CompanyENR 8 Exch. 733.

Holden v. The Liverpool Navigation CompanyENR 3 C. B. 1.

Smith v. Dodson 3 M. & Gr. 59.

Thorogood v. BryanENR 8 C. B. 115, see pp. 117, 130.

Hawkins v. CooperENR 8 Car. & P. 473.

Vennall v. GarnerENR 1 C. & M. 21.

Tuff v. WarmanENRENR 2 C. B. N. S. 760; 5 C. B. N. S. 573.

Flower v. AdamENR 2 Taunt. 316, per Lawrence, J.

Dowell v. General Steam Navigation CompanyENR 5 E & B. 201, per Lord Campbell, C. J.

Butterfield v. ForresterENR 11 East, 60.

Bridges v. The Grand Junction Railway CompanyENR 3 M. & W. 246.

Dowell v. The General Steam Navigation CompanyENR 5 E. & B. 206.

Walton v. The London, Brighton, and South Coast Railway Company Har. & Ruth. 429, 430.

Colthirst v. BejushinENR 1 Plow. 30 a, 32 a, 33 a.

Stowell v. Lord ZouchENR 1 Plow. 376 a.

Hotham v. The East India CompanyENR 1 T. R. 638.

St. John v. St. JohnENR Hob. 78.

Sir Ralph Bovy's CaseENR 1 Ventr. 217.

Demurrer — Contributory Negligence — Pleading — What Matters must be negatived by Plea.

150 THE IRISH REPORTS. [I. R. Exchequer. DOYLE v. KINAHAN (1). 1868. Demurrer-Contributory Negligence-Pleading-What Matters must be May 2. • negatived by Plea. 1869. To an action for negligent driving, the Defendant pleaded that the Plain Feb. 8. tiff himself so far contributed to the misfortune complained of by his own negligence and want of ordinary and common care and caution, that but for such negligence and want of ordinary and common care and caution upon his part, the said misfortune would not have happened. The plea did not contain the usual averment that the Defendant could not, by the exercise of ordinary care, have avoided the consequence of the Plaintiff's said neglect. Held, on demurrer, a valid plea (Pico; C. B., dissentients). The precise character of the evidence sufficient to support a defence of conÂtributory negligence defined. The rule of pleading, with respect to what matters must be negatived by a plea, and. what more properly comes from the other side, discussed. DEMURRER. The writ of Summons and Plaint complained that the Defendant, by his servant, so negligently and unskilfully drove and managed a certain horse and car of the Defendant on a public highway, that the same was forced and driven against a horse of the Plaintiff, whereby the said horse of the Plaintiff was thrown down and wounded and injured, and the harness of the Plaintiff's said horse was broken and damaged ; and the Plaintiff's horse, by reason of the said wounds and injuries, afterwards died; and the Plaintiff incurred expense in endeavouring to cure the said horse, and in repairing said harness, and was deprived of the use thereof for a long time, and was delayed and injured in his business, to the Plaintiff's damage of one hundred pounds. The Defendant, together with several other defences, pleaded as follows :- " And for a fourth defence to said action, and by leave of the Court, the Defendant saith that the Plaintiff himself so far conÂtributed to the misfortune complained of in the Summons and Plaint by his own negligence and want of ordinary and common care and caution, that but for such negligence and want of ordi (1) Before PIGOT, C. B., FITZGERALD and DEASY, BB. VOL. IV.] COMMON LAW SERIES. 1.51 nary and common care and caution on his part, the said misfortune Exchequer. complained of would not have happened." 1869. To this fourth defence the Plaintiff demurred, because it was DOYLE not averred in the said defence that the alleged negligence of the SINAHAN. Plaintiff, directly or materially, or proximately, caused or conÂtributed to the accident ; and because it was not averred that the Plaintiff could, by ordinary care, have prevented or avoided the accident ; and because it was not averred that the Defendant could not, by ordinary care, have prevented the happening of the acciÂdent, and. because the said defence was in other respects uncertain, informal, and insufficient. Waters, for the Plaintiff, in support of the demurrer. Robertson, for the Defendant, contra. Cur. adv. volt. FITZGERALD, B. :- Feb. 8. The Plaintiff in this case declares that the Defendant so negliÂgently and unskilfully drove and managed a certain car and horse of the Defendant on a highway, that the same were forced and driven against a horse of the Plaintiff, whereby certain damage, in the declaration mentioned, accrued to the Plaintiff. The Defendant pleads that the Plaintiff himself so far contriÂbuted to the misfortune complained of by his own negligence and want of ordinary and common care and caution, that but for such negligence and want of ordinary and common care and caution on his part the misfortune complained of would not have happened. The Plaintiff demurs, on the ground that the plea is insufficient without an averment that the Defendant could not, by ordinary care, have prevented the happening of the accident. The arguments for and against the plea are founded on the language of Mr. Justice Wightman, in delivering the judgment of the Court of Exchequer Chamber in the case of Tuff v. Warman (1), and adopted by this Court in Scott v. Dublin and Wicklow Railway Company (2). (1) 5 C. B. N. B. 573.' (2) 11 Ir. C. L. R. 377. THE IRISH REPORTS. [L R. In 5 C. B. N. S. 585, Mr. Justice Wightman says :-" It apÂpears to us that the proper question for the jury in this case, and, indeed, in all others of the like kind, is, whether the damage was ocÂcasioned entirely by the negligence or improper conduct of the DeÂfendant, or, whether the Plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have hapÂpened. In the first case, the Plaintiff would be entitled to recover ; in the latter, not ; as, but for his own fault, the misfortune would not have happened." The plea in the present case very closely follows the words of the learned Judge (including the somewhat untechnical one " misÂfortune"), by which the state of facts in which the Plaintiff is disÂentitled to recover is defined. But Mr. Justice Wightman adds :-" Mere negligence, or want of ordinary care or caution, would not, howerer, disentitle him to recover, unless it were such that, but for that negligence or want of ordinary care or caution, the misfortune could not have happened ; nor, if the Defendant might, by the exercise of care on his part, have avoided the consequence of the neglect or carelessness of the Plaintiff." The latter part of this sentence forms the foundation of the demurrer. In substance, the argument in support of the demurrer, as I understand it, is, that in the absence of an allegation of the negaÂtive contained in that part of the sentence, the cause of the damage might be entirely the neglect or default of the Defendant, as alleged (impliedly, at least,) in the declaration. It is not worth while-for I fear it would be useless-to make any observation on the practice of substituting the language in which Courts deliver judgments for the technical language of pleadÂing. On the best consideration I have been able to give the case, I think the plea sufficient. If popular language was to be used, it might have been better to say that " the misfortune could not have happened," than, as is said, " would not have happened ;" but I canÂnot think this material. Vol. IV.] COMMON LAW SERIES. 153 The plea seems to me to contain two allegations That the Exchequer. Plaintiff's neglect was a cause of the injury, i. e., a matter but for 1869. which the injury would not have occurred; 2. That it contributed DOYLE to the injury. V. I do not think it can be understood that the Plaintiff's negliÂgence would, as a cause, have contributed, with the Defendant's neÂgligence, to the injury, if the Defendant might, by the exercise of ordinary care on his part, have avoided the...