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.”
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.