60 Mass. 292 (1850)
As the dog owner was attempting to separate the dogs with a stick, he unintentionally struck the claimant in the eye, causing him serious injuries. The claimant brought an action of trespass for assault and battery, claiming that the dog owner was negligent in the manner he used the stick to separate the dogs. The dog owner contended the jury received erroneous jury instructions from the trial court.
- The court held that the jury instructions requested by the dog owner should have been given.
- If at the time of the blow both the claimant and the dog owner were using ordinary care, or if the dog owner was using ordinary care and the claimant was not, or if both the claimant and the dog owner were not using ordinary care, then the claimant could not recover.
- Further, the jury should have been charged that if the dog owner accidentally hit the claimant in his eye while he was using due care and all proper precautions necessary to the exigency of the case, to avoid hurt to others, the incident was the result of pure accident or was unavoidable and the claimant could not recover.
The court reversed the judgment in favor of the claimant and ordered a new trial.
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