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Law School Case Brief

Markley v. Whitman - 95 Mich. 236, 54 N.W. 763 (1893)

Rule:

A student was passing peaceably along the sidewalk, when some of his fellow-students formed in a line behind him, and each pushed the one in advance until he was reached, in which game he took no part; and it is held that he had the same right to protection from such an assault as if he were a stranger, and that the student who was thus pushed against him is liable for the injuries he received.

Facts:

The parties were students at a high school when defendant and others engaged in a game of "rush." The practice of the game was to form a line, and the person in the rear pushing the one in front of him until the one to be "rushed," who knew nothing of what was coming, was pushed by the one behind him. Plaintiff was walking home on the sidewalk when defendant, immediately behind him, struck him with his hands between the shoulders with such violence that plaintiff was thrown nearly to the ground. Plaintiff's neck was nearly fractured, and for several months he was compelled to take medical treatment. He filed an action to recover damages, claiming that he suffered great pain, and had not fully recovered. The trial court entered judgment in favor of plaintiff, and defendant appealed, complaining of the charge.

Issue:

Was the plaintiff entitled to recover damages from the defendant who "rushed" plaintiff from behind, which caused plaintiff to fall and be injured?

Answer:

Yes.

Conclusion:

The Court noted that the plaintiff was not engaged in the game the defendant was playing with other students, and held that the plaintiff had the same right to be protected from the assault as a stranger would have had, and the assault upon him was as unlawful as it would have been upon a stranger. The Court held that since the defendant voluntarily engaged in the game, he must be held responsible for the consequences that followed.

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