George Brown vs. George K. Kendall.
SUPREME COURT OF MASSACHUSETTS, MIDDLESEX
60 Mass. 292; 1850
Mass. LEXIS 150; 6 Cush. 292 October, 1850, Decided
This was an action of trespass for
assault and battery, originally commenced against George K.
Kendall, the defendant, who died pending the suit, and his
executrix was summoned in.
It appeared in evidence, on the trial, which was before Wells,
C. J., in the court of common pleas, that two dogs, belonging to
the plaintiff and the defendant, respectively, were fighting in
the presence of their masters; that the defendant took a stick
about four feet long, and commenced beating the dogs in order to
separate them; that the plaintiff was looking on, at the
distance of about a rod, and that he advanced a step or two
towards the dogs. In their struggle, the dogs approached the
place where the plaintiff was standing. The defendant retreated
backwards from before the dogs, striking them as he retreated;
and as he approached the plaintiff, with his back towards him,
in raising his stick over his shoulder, in order to strike the
dogs, he accidentally hit the plaintiff in the eye, inflicting
upon him a severe injury.
Whether it was necessary or proper for the defendant to
interfere in the fight between the dogs; whether the
interference, if called for, was in a proper manner, and what
degree of care was exercised by each party on the
occasion; were the subject of controversy between the parties,
upon all the evidence in the case, of which the foregoing is an
The defendant requested the judge to instruct the jury, that
"if both the 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 plaintiff and defendant were not using ordinary care,
then the plaintiff could not recover."
The defendant further requested the judge to instruct the jury,
that, "under the circumstances, if the plaintiff was using
ordinary care and the defendant was not, the plaintiff could not
recover, and that the burden of proof on all these propositions
was on the plaintiff."
The judge declined to give the instructions, as above
requested, but left the case to the jury under the following
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
care at the time of the blow. If it was