Brown v Kendall
Supreme Judicial Court of Massachusetts, 1850
6 Cush. (60 Mass.) 292
-While the plaintiffs and the defendants dogs were fighting, the defendant used a stick (4 ft. in length) to beat the dogs in an attempt to separate them.
-While swinging the stick, the defendant struck the plaintiff in the eye, inflicting a 'serious injury' upon him.
-The court states that the damage sustained by the plaintiff was inadvertent and unintentional
-Thus, the question is; How far, and under what qualifications, is the defendant responsible for the damage done?
-The plaintiff must bring evidence to show either that the Intention was unlawful, or that the defendant was in fault. For if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable (GREENLEAF)
-If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom.
-Defendants proposed instructions: "If both plaintiff and defendant at the time of the blow were using ordinary care, or if at that time the defendant was using ordinary care, and the plaintiff was not, or if at that time, both the plaintiff and defendant were not using ordinary care, then the plaintiff could not recover"
-Ordinary care: That kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger
-To make an accident, or casualty, or as the law sometimes states it, inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the circumstances in which he was placed.
-Defendants act was lawful and proper. If, then, in doing this act, using due care and all proper precautions necessary to the exigency of the case, to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in his eye, and wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore the action would not lie
-Jury instructions: "If it was not a necessary act, and the defendant was not in duty bound 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 world not in a strict but a popular sense."
-Charge given: "if the jury believed, that the act of interference in the fight was unnecessary, (that is, as before explained, not a duty incumbent on the defendant), then the burden of proving extraordinary care on the part of the defendant, or what of ordinary care on the part of the plaintiff, was on the defendant.
-If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case, and therefore such want of due care became part of the plaintiffs case, and the burden of proof was on the plaintiff to establish it.
-The facts that are essential to enable the plaintiff to recover, he takes the burden of proving