Brown v. Kendall – Case Brief Summary
Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850).
Facts
A dog owned by Brown (P) was fighting with a dog owned by Kendall (D). Brown stood behind Kendall while Kendall attempted to separate the dogs with a stick and sustained personal injuries when the stick struck him in the eye. Brown brought an action of trespass against Kendall for assault and battery.
The trial court instructed the jury that if the defendant was performing a necessary act or one which was his duty to perform, and was doing it in a proper way, then he would not be liable provided he was using ordinary care. The trial court further instructed that if the act was not necessary and Kendall did not have a duty to separate the dogs, he was liable for Brown’s injuries unless he was exercising extraordinary care and the accident was inevitable. However, Brown could not recover in any case if he himself had not been exercising ordinary care to avoid the injury.
The trial court further instructed that if Kendall had a duty to interfere, then Brown had the burden of proof to show both negligence by Kendall, and that Brown had used ordinary care to avoid the injury. If the act was not necessary, Kendall had the burden to show that he had exercised extraordinary care or that Brown had not used ordinary care in avoiding the injury.
The trial court refused the alternative jury instructions offered by Kendall and the jury entered a verdict in favor of Brown. Kendall appealed.
Issues
- Who has the burden of proof to show that the defendant was not using ordinary care?
- Can a party be liable in trespass without a showing of negligence or fault on the party of that party?
Holding and Rule
- The plaintiff has the burden of proof to show that the defendant did not use ordinary care.
- No. A party is not liable in trespass without a showing of negligence or fault on the part of that party.
A cause of action in trespass will lie when one receives injury from the direct act of another. A party will not be liable however if a purely accidental injury arises from his lawful acts.
Liability for Negligence
The plaintiff cannot recover if both plaintiff and defendant were using ordinary care, or if the defendant was using ordinary care and the plaintiff was not, or if neither party was using ordinary care.
Standard of Ordinary Care
The standard of ordinary care is determined on a case by case basis. It is 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.
Inevitable Accident
An inevitable accident is one which the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency under the circumstances.
In this case Kendall was doing a lawful act and unintentionally injured Brown. Brown cannot recover unless he can prove that Kendall was negligent.
Disposition
New trial ordered.
Notes
Contributory negligence bars recovery by the plaintiff if the plaintiff was not exercising ordinary care at the time of the accident. At common law this was a complete bar to recovery. The modern trend is to use apply the doctrine of comparative negligence whereby a judgment is reduced according to the proportion of the plaintiff’s fault.
See Martin v. Herzog for torts case involving an issue of contributory negligence in which the driver of a buggy without lights was killed in a collision with a car that was on the wrong side of the road.