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Forrester (D) put up a pole across part of a road next to his house for the purpose of making repairs to the house. Butterfield (P) was riding very fast at about 8 o'clock at twilight and did not see the pole. He hit it and was injured when he fell off his horse. A witness proved that visibility was 100 yards at the time of the accident and P might have observed and avoided it if he had not been riding so violently. There was no evidence that P was intoxicated at the time. The judge instructed the jury that if an individual riding with reasonable care could have avoided the pole and if the jury found that P was not riding with ordinary care, the verdict should be in D’s favor. The jury was directed under contributory negligence. The verdict was given to D. P appealed.

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