This section contains the nature of the case and procedural background.

Davies (P) fettered the forefeet of his ass, turned it into a public highway and left it grazing on the side of the road about eight yards wide. Mann's (D) wagon with a team of three horses ran over the ass and killed it. P sued D to recover damages. D's wagon was moving at a smart pace. The trial court instructed the jury that even if the act of D in tying the mule on the road was illegal or negligent, D was liable if D’s negligence was the proximate cause of the mule’s death. The jury was also instructed to find for P if D could have avoided the accident by the exercise of ordinary care. The jury gave the verdict to P and D moved for a new trial on grounds of misdirection.

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