Brown v. Kendall, 60 Mass. 292 (1850). Plaintiff and Defendant’s dogs got into a dog fight and Defendant tried to break up the fight with a stick. During his attempts, he unintentionally struck Plaintiff in the eye with the stick. During trial, Defendant asked the trial judge to give jury instructions that if Defendant was using ordinary care, or if both Defendant and Plaintiff were using ordinary care, then Plaintiff cannot recover for his injuries. If Plaintiff was using ordinary care and Defendant was not, then Plaintiff can recover and Plaintiff has the burden of proof. The judge refused to give these instructions to the jury. Instead, the judge gave the instructions that if Defendant had a duty to separate the dogs and he was using ordinary care, then he is not liable for Plaintiff’s injuries. If it was not Defendant’s duty to separate the dogs but he still performed actions, he is not liable if he practiced extraordinary care. If Plaintiff did not practicing ordinary care he cannot recover. If it wad Defendant’s duty to separate the dogs, then the burden is upon him to prove that Plaintiff was not practicing ordinary care. But if it was not Defendant’s duty, then burden of extraordinary care on the part of Defendant or not ordinary care on the part of Plaintiff was on Defendant. The jury came out with a verdict for Plaintiff. The Court of Appeal was faced with the issue of whether the trial court erred in its jury instructions. The Court held that the trial court did in fact err. The Court reasoned that this case involved an unintentional act. Therefore, if Defendant was involved in a lawful act, he is not liable if he used due care in performing this act. Due care is that which prudence 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.
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