Burden of proof in an action for trespass and assault and battery falls subject to examination when after a fight between two dogs, the plaintiff is left seriously injured and in want of redress.

In 1850, the two parties were caught up in a vicious dog fight involving their respective animals, and while the now deceased defendant took deliberate steps to separate them, the plaintiff was accidentally struck in the eye by the defendant’s walking stick, as he stepped backwards during the melee.

In response, the plaintiff commenced a suit for tortious damages for trespass vi et armis (trespass by force and arms) on the supposition that the injurious blow was a deliberate act, and that the carelessness and neglect of the defendant was the cause, and not the location of the plaintiff when the stick was drawn back.

As was common at the time of litigation, Chapter 93 § 7 of the Massachusetts Revised Statutes allowed clams for assault and battery to stand, despite the death of the accused, and so following his passing, the defendant was represented by his executrix, whereupon the district court judge instructed the jury to decide upon the principle that:

“If the jury believe, that it was the duty of the defendant to interfere, then the burden of proving negligence on the part of the defendant, and ordinary care on the part of the plaintiff, is on the plaintiff. If the jury believe, that the act of interference in the fight was unnecessary, then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of the plaintiff, is on defendant.”

On this occasion, the jury returned a verdict in favour of the plaintiff, while the executrix sought to challenge the finding in the Massachusetts Supreme Court, on the insistence that the injury was accidental and potentially unavoidable on the part of her late husband.

Here, the court relied upon Powers v. Russell, in which Shaw CJ had held that in instances:

“[W]here the party having the burden of proof gives competent and prima facie evidence of a fact, and the adverse party, instead of producing proof which would go to negative the same proposition of fact, proposes to show another and a distinct proposition which avoids the effect of it, there the burden of proof shifts, and rests upon the party proposing to show the latter fact.”

Powers v. Russell

Which indicated that unless the plaintiff could show sound reasoning why the injury arose through negligence, there was insufficient grounds for a jury to decide with confidence, thus the court was now convinced that when choosing to separate the two animals, the deceased was, by virtue of his avoiding potential harm to his dog, acting lawfully and within his rights as an owner, and so while moving backwards with his fullest attentions on the fight, it was held by the court that:

“If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff’s case, and the burden of proof was on the plaintiff to establish it.”

Upon which, the previous verdict was dismissed and a new trial ordered on the pretence that unless irrefutable evidence could provide that the defendant had been wilfully negligent in an act of carelessness, there was simply no legal basis for recovery by the plaintiff.


Negligence and amendment of pleadings as material factors within a tortious claim lay central to a case between a private landowner and a corporate body, whose reliance upon subsequent natural acts failed to excuse their own actions when the plaintiff suffered serious property damage.

Having experienced one of the worst droughts in recent history, Minnesota was subject to a number of field fires, many of which originated in various locations and went on to cause significant harm to those living nearby, while on this occasion the appellants were sued for damages in the District Court for St. Louis County on grounds that one of their locomotives wheels had emitted sparks that continued to smoulder unextinguished for almost two months, before high winds caused them to flare up and later burn the appellee’s home.

During the trial, the appellants argued that there had been other fires in close proximity to the appellee’s home, and so there was insufficient evidence upon which to bring a claim, while the judge instructed the jury (i) that if the appellants’ fire had become mingled with another fire prior to reaching the appellee’s home, then they were liable for neglect, and (ii) that if it was shown that the appellants’ engine had started a second fire in the same region as those used in defence they were liable for neglect, however the jury were left hesitant and so asked:

“[W]hether the defendant would be liable if they should find that one of defendant’s engines set a fire west of Kettle River, and that on October 12th this fire was of sufficient magnitude to play an important part in any consolidation of fires that may have occurred between it and other fires coming from the west and northwest, and the consolidated fires passed over plaintiff’s land and did the damage.”

To which, the court concurred before the jury awarded for the appellee, despite the appellants having ample opportunity to prove otherwise, whereupon the appellants challenged the judgment in the Minnesota Supreme Court on grounds that the appellee had altered his claim to suit the revised jury statement.

Here, the court referred to Gracz v. Anderson, in which it had held that:

“Whether an application to amend a pleading to make it conform to facts proven on the trial should, or should not, be granted, rests ordinarily in the sound discretion of the trial court.

While § 7784 of the Minnesota General Statutes of 1913 stated in relevant part that:

“Plaintiff must proceed on a definite theory and change of attitude, prejudicial to defendant, can be allowed [except where] a variance between the pleadings and proof held not of a nature to mislead the defendant.

And so, when examining the contributory nature of the fire, the court also relied upon Bibb Broom Corp. Co. v. Atchison T. & S. F. Ry. Co., in which it had also held that:

“[I]f damage is caused by the concurrent force of defendant’s neglect and some other cause for which he is not responsible, including an act of God, he is nevertheless liable if his negligence is one of the proximate causes of the injury complained of, even though, under the particular circumstances,he was not bound to anticipate the interference of the intervening force which concurred with his own.”

While further noting how in Krippner v. Biebl the court had also held that:

“If the defendant exercised proper care in extinguishing the fire on the evening of the day it had been started, and did actually extinguish it, he is not liable; but if he was negligent in the first instance, in the setting and care of the fire, no amount of care or diligence afterwards exercised will exonerate him from liability.”

Hence, the court upheld the trial court judgment, while reasoning that regardless of the change in jury instruction and the contention that natural occurrences rendered the appellants exempt from negligence, there was simply no standing for such an argument under Minnesota law, before reminding the parties that:

“If the amendment to a complaint does not introduce an entirely new cause of action, but merely changes the statement of the manner in which the injury was inflicted, it is ordinarily permissible.”

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