Brown v. Kendall
60 Mass. 292 (1850)
Author: Jim

Facts: The Plaintiff’s and Defendants’ dogs were fighting and D tried to break them apart by hitting them with a stick.  P was standing nearby.  Dogs got closer to P.  While D brought to stick behind his shoulder to strike the dogs, the stick hit P’s eye and serious injury resulted.

Procedure: D wanted trial judge to give jury instructions that if D was using ordinary care, or if both D and P were using ordinary care, or if both P and D were not using ordinary care, then P cannot recover.  If P was using ordinary care and D was not, then P can recover and P has the burden of proof. The judge refused.  The judge gave the instructions that if D had a duty to separate the dogs and he was using ordinary care, then he is not liable.  If it was not D’s duty to separate the dogs but he still performed the actions, he is not liable if he practiced extraordinary care. If P not practicing ordinary care he cannot recover. If it was D’s duty to separate the dogs, then the burden is upon him to prove that P was not practicing ordinary care. But if not D’s duty, then burden of extraordinary care on part of D or not ordinary care on part of P is on the defendant. The jury came out with a verdict for P.

Issue: Did the trial judge err in giving the jury instruction?

Holding: Yes

Rationale: This case involves an unintentional act.  In such cases, if D is involved in a  lawful act, he is not liable if he uses due care in performing this act.  Due care is that “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.”