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Dethick (D), a sewer contractor, dug a trench that blocked Clayards' (P) rightful path to the road. D neglected to fence or otherwise secure the trench so as to prevent accidents and injuries to persons passing by the work. D was acting under the authority of the commission of sewers. The commissioners had given notice to P that the trench would continue open for a day or two longer, and they must put up with it. D helped P in accessing the road with a horse over a spot where earth had been piled. Later that day, P made the attempt, and D’s men cautioned P not to make the attempt, for that he would endanger, not the horse but the lives of men who were in the trench. P attempted to cross, and the earth gave way, and the horse was killed. P sued D for damages. The Lord Chief Justice left it to the jury to decide whether D had been guilty of culpable negligence in not fencing off the area. His Lordship also observed that even if the jury sided with D on the notice his men gave, it was not P’s duty to refrain from the attempt merely because Ds had made the passage dangerous. His Lordship instructed that Ds were not entitled to keep P in a state of siege till the passage was declared safe by their creating the danger and then warning that there was some danger from that which they created. His Lordship also stated that if P had persisted in facing the great, open, and obvious danger, P’s action could not be maintained. He left these issues to the jury. The jury found for P. D moved for a new trial, claiming that P had no right to incur the danger and should have brought an action against D for the obstruction.

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