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Brown v. Kendall

Citation. 60 Mass. 292 (1850)
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Brief Fact Summary.

In attempting to separate two fighting dogs, defendant unintentionally struck the plaintiff in the eye with a stick, causing serious injuries to plaintiff.

Synopsis of Rule of Law.

An individual, who in the course of doing a lawful act uses ordinary care, is not liable for injuries resulting from the lawful act.


Plaintiff and defendant are both dog owners. One day their dogs began to fight each other. The two dogs was moving towards plaintiff, causing him to move away from them. Defendant did not see plaintiff was moving towards him. Defendant took a stick and attempt to separate the two dogs, while he swinging the stick, he inadvertently hit plaintiff in the eye. Plaintiff was severely injured and sued for assault and battery.


How far and under what qualifications, the party is responsible to its unintentional act?


Supreme Court of Massachusetts reversed trial court verdict and ordered a new trial.


Trial court rejected defendant’s request to the following jury instruction: if both 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 the plaintiff and defendant were not using ordinary care, then the plaintiff could not recover. However, this Court was of the opinion that defendant’s request to the trial court was actually correct.

This Court explained that “ordinary care” means the 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. This Court also clairfied that the standard “ordinary care” varies depend on different situations. For example, a man’s ordinary care to discharge a gun in a forest is different from doing so in a crowded city.

In this case, defendant’s act was out of propriety to separate two fighting dogs, hence his act was proper. He did not intend to hurt plaintiff, so there should not be intentional torts. Defendant only injured plaintiff by accidents.

The Court also stated that if the defendant was chargeable with some negligence, and if the plaintiff was also chargeable with negligence, then the plaintiff would have the burden of proof that the damage was caused wholly by defendant’s negligence, and that the plaintiff’s own negligence did not contribute as an efficient cause to produce it.

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