Court case60 Mass. (6 Cush.) 292 (1850)

Dogs belonging to the plaintiff and the defendant were fighting. The defendant took a stick and began beating the dogs to separate them. As the dogs moved about, the defendant backed away from them; while stepping backwards he raised the stick over his shoulder to strike the dogs and accidentally hit the plaintiff, who was standing behind him, in the eye, causing a serious injury. The stick had been raised in the course of the effort to part the dogs and was not aimed at the plaintiff. The plaintiff sued for assault and battery.

The Supreme Judicial Court of Massachusetts, in a judgment by Shaw CJ, held that the trial judge had misdirected the jury and ordered a new trial. The defendant, in separating the dogs, was doing a lawful and proper act; if he was using ordinary care, as a prudent person would in the circumstances, he was not liable for an injury that was purely accidental. The burden was on the plaintiff to prove that the defendant had not used ordinary care, or that the plaintiff himself had used such care. An unavoidable accident, without fault, gives no cause of action.