BROWN v. KENDALL Sup. Jud. Ct. of Mass., 60 Mass. (6 Cush.) 292 (1850). CASE BRIEF

BROWN V. KENDALL

Sup. Jud. Ct. of Mass., 60 Mass. (6 Cush.) 292 (1850)

NATURE OF THE CASE: Kendall (D) appealed a judgment for Brown (P) in P's action of trespass for assault and battery when, in attempting to separate their fighting dogs, D unintentionally struck P in the eye causing serious personal injuries.

FACTS: Two dogs were fighting. Brown (P) owned one and the other was owned by Kendall (D). D tried to separate the dogs by beating them with a stick. D stepped back to avoid the dog and accidentally struck P who was behind him. P was hit in the eye and injured. P brought an action in trespass for assault and battery. The trial court gave the following jury instructions: 'If the defendant, in beating the dogs, was doing a necessary act, or one which it was his duty under the circumstances of the case to do, and was doing it in a proper way; then he was not responsible in this action, provided he was using ordinary care at the time of the blow. If it was not a necessary act; if he was not in duty bound to attempt to part the dogs, but might with propriety interfere or not as he chose; the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word inevitable not in a strict but a popular sense.' 'If, however, the plaintiff, when he met with the injury, was not in the exercise of ordinary care, he cannot recover, and this rule applies, whether the interference of the defendant in the fight of the dogs was necessary or not. If the jury believe, that it was the duty of the defendant to interfere, then the burden of proving negligence on the part of the defendant, and ordinary care on the part of the plaintiff, is on the plaintiff. If the jury believe, that the act of interference in the fight was unnecessary, then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of the plaintiff, is on defendant.' D objected to the instructions and offered his own which put the burden on P to prove that D lacked ordinary care. The trial judge ignored that request and P got the verdict and D appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

Get free access to the entire content for Mac, PC or Online

for 2-3 days and free samples of all kinds of products.

https://bsmsphd.com

© 2007-2016 Abn Study Partner