George Brown V. George Kendall 1850 – United States Law Paper
Facts: There were two dogs, one belonging to the plaintiff and one to 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.
Judicial History: The lower court ruled for defendant, as well as the Appellate and Supreme
Issues: Whether the defendant is guilty of trespass for assault and battery
Rules: No. The lower court ruled in favor of the defendant stating that the burden of proof was on the plaintiff to establish the want of due care on the part of the defendant. The Supreme Court affirmed.
Analysis: In order to separate the dogs the defendant was using due care in ending the dog fight. The plaintiff should have used reasonable caution when the defendant was trying to separate the dogs. The court found that it was proper and lawful to separate the dogs. If he hit the plaintiff in the eye it was an accident and unavoidable.
Conclusion: The plaintiff failed to provide the court with the needed burden of proof and he is not entitled to recover the damages.