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Unformatted text preview: 1) Describe how the common law evolves using the holdings in Butterfield V. Forrester and in Davies v. Mann. In the case of Butterfield V. Forrester (1809), the plaintiff, Butterfield, was injured when he struck an obstruction while riding his horse in a roadway. The defendant, Forrester, was making repairs to his home and had put a pole across the road. The plaintiff had left a public house at dusk and was riding his horse very quickly through the streets in Derby, England. The plaintiff was seriously injured when he struck the pole. A witness stated that if the plaintiff had not been riding his horse so quickly he would have seen the pole. The plaintiff was not found to be intoxicated. The plaintiff argued that he should not have to look out for unknown obstructions that are negligently left in the path of an innocent traveler. The defendant argued that if the plaintiff had used ordinary care (not riding so fast) he would have seen the obstruction. The legal issue came down to whether the plaintiff has a duty of care to avoid the negligent acts of the defendant. The Court's decision was yes, that one person at fault shouldn't remove the requirement of another person to use ordinary care for himself. Thus, the plaintiff did not use ordinary care riding his horse so quickly near dark and a person cannot ride upon a hazard and expect the other to be solely at fault when he shares in the fault. This was the first case in which the common law defense of contributory negligence was applied. However, in ruling for the defendant, the plaintiff incurred all the costs while the defendant should have been jointly liable as the injury might have happened in the dark even if the plaintiff was using ordinary care for himself. In the case of Davies V. Mann, Davies, the plaintiff, had left his ass to graze by a public highway, the defendant, Mann and his party came driving down the hill, ran into and killed the ass. Mann argued that Davies was guilty of contributory negligence by leaving the ass by the highway. The plaintiff argued that Mann's servant, who struck the ass, had not been using care, had observed the ass and still acted negligently it was the defendants fault. The concept that came out of this was the rule of the “Last Clear Chance.” This rule basically calls for the court to decide which negligent act occurred last. Thus the jury was asked to decide which was the last negligent act, Davies putting his ass near the highway or whether the servant could have avoided the accident if he had exercised due care. The jury found for the plaintiff, placing the blame on the servant and therefore Mann. 2) With the aid of a diagram explain why a non-waivable warranty of habitability may not benefit and is likely to harm tenants....
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This test prep was uploaded on 04/17/2008 for the course ECON 141 taught by Professor Rgonzalez during the Fall '07 term at San Jose State.
- Fall '07