60 Mass. (6 Cush.) 292
George Brown commenced an action of trespass for assault and battery against George K. Kendall in the Supreme Judicial Court of Massachusetts.1 Kendall accidentally struck Brown in the eye with a stick while attempting to separate two fighting dogs.2 One dog belonged to Brown and the other to Kendall.3 Kendall died while the suit was pending, leading to his executrix being summoned in as the defendant under a statute that allowed the action to survive the death of a party.4
The evidence presented at trial established that the dogs were fighting in the presence of their owners when Kendall picked up a stick about four feet long and began beating the dogs to part them.5 Brown stood approximately a rod away watching the fight and advanced a step or two toward the animals.6 During the struggle the dogs moved closer to Brown, prompting Kendall to retreat backward while continuing to strike at the dogs.7
As Kendall approached Brown from the front with his back turned toward him, he raised the stick over his shoulder to hit the dogs and unintentionally struck Brown, inflicting a severe injury to his eye.8 The parties contested at trial whether Kendall's intervention in the dog fight was necessary or proper, whether he carried it out in a suitable manner, and the level of care exercised by each party during the events.9
Kendall requested that the trial judge instruct the jury that the plaintiff could not recover if both parties were using ordinary care at the time of the blow, if the defendant was using ordinary care and the plaintiff was not, or if both were not using ordinary care.10 The judge instead provided different instructions that conditioned liability and the burden of proof on whether the act of separating the dogs was necessary.11 After these instructions, the jury returned a verdict for the plaintiff, and the defendant alleged exceptions to those instructions.12
Whether the plaintiff must prove the defendant's want of ordinary care to recover damages for an unintentional injury?13
In an action of trespass for unintentional injury arising from a lawful act, the plaintiff must come prepared with evidence to show either that the intention was unlawful or that the defendant was in fault.14 If the injury was unavoidable and the conduct of the defendant was free from blame, he will not be liable.15
Yes. The evidence established that Kendall picked up a stick about four feet long and began beating the dogs to separate them while Brown stood a rod away watching and advanced a step or two.16 The court applied the rule by holding that the facts preclude any supposition the blow was intentional and that the plaintiff must prove fault or negligence on the defendant's part.17 Because Kendall's act of separating the dogs was lawful and proper, and the blow occurred while he retreated backward striking at the animals, the plaintiff could recover only upon showing want of ordinary care by the defendant.18
The plaintiff bears the burden of proving the defendant's lack of ordinary care to recover for an unintentional injury.19
Whether the standard of care required of the defendant depends on whether separating the dogs was a necessary act?20
The standard of ordinary care does not vary according to whether the act was necessary or merely proper.21 What constitutes ordinary care is the kind and degree of care which prudent and cautious men would use under the exigency of the case to guard against probable danger.22 If the defendant was using due care and all proper precautions necessary to the exigency while performing a lawful act, accidental injury imposes no liability.23
No. The trial judge had instructed that if separating the dogs was not necessary the defendant must exercise extraordinary care.24 The court applied the rule to the facts by determining that Kendall's intervention was a lawful and proper act he might do by proper and safe means regardless of necessity.25 The evidence showed the dogs belonged to the parties and were fighting in their presence.26 Yet the degree of care remained ordinary care measured by the circumstances rather than elevated to extraordinary care based on whether the act was deemed necessary.27
The standard of care does not depend on whether separating the dogs was a necessary act.28
Whether the burden of proving ordinary care or extraordinary care shifts to the defendant when the act of interference is deemed unnecessary?29
Those facts which are essential to enable the plaintiff to recover are matters the plaintiff must prove.30 When the proof is all in, if it appears that the defendant was doing a lawful act and unintentionally hit and hurt the plaintiff, then unless it also appears that the defendant is chargeable with some fault, negligence, carelessness, or want of prudence, the plaintiff fails to sustain the burden of proof.31
No. The trial instructions had placed the burden on the defendant to prove extraordinary care or the plaintiff's want of ordinary care if the interference was unnecessary.32 The court applied the rule to the established facts by holding that the burden never shifts and remains on the plaintiff throughout.33 The jury instructions erroneously shifted that burden when they conditioned it on whether the act was necessary.34
The burden of proof does not shift to the defendant when the act of interference is deemed unnecessary.35
Whether the plaintiff's own lack of ordinary care prevents recovery unless the injury resulted wholly from the defendant's act?36
If the defendant was chargeable with some negligence and the plaintiff was also chargeable with negligence, the plaintiff cannot recover without showing that the damage was caused wholly by the act of the defendant.37 The plaintiff's own negligence did not contribute as an efficient cause to produce it.38
Yes. The evidence showed Brown was looking on and advanced toward the fighting dogs as they approached his position, raising a question of his own care.39 The court applied the rule by confirming that if both parties were not using ordinary care, the plaintiff could not recover unless he showed the damage was caused wholly by the defendant's act.40 His own negligence did not contribute as an efficient cause to produce the injury.
This contributory negligence principle applied whether or not Kendall's intervention was necessary.41
The plaintiff's own lack of ordinary care prevents recovery unless the injury resulted wholly from the defendant's act.42