Crabtree v. Dawson

119 Ky. 148



No one is liable, civilly or criminally, for an unintentional consequential injury that resulted from a lawful act where neither negligence nor folly can be imputed to him, is always on the plaintiff. The foundation of defendant's liability in all such cases is negligence, or the failure on his part to exercise that degree of care to avoid making a mistake, which an ordinarily prudent man would exercise under the same or similar circumstances.


Appellant patron challenged the judgment of the Circuit Court, which found in favor of the patron and against appellee owner in the patron's action against the owner for assault and battery. The patron brought an assault and battery action against the owner. The owner, the patron asserted that the court did not properly instruct the jury.


Whether the owner recklessly struck the patron?




The court agreed and reversed. It found that the instructions were based on the proper theory, but were technically erroneous. In the third instruction only ordinary care and diligence was required of the owner in ascertaining whether the person he was about to strike was in fact the person from whom he anticipated injury. However, the owner should have been required to exercise the highest or utmost care practicable under the circumstances. If the owner recklessly struck the patron, the patron was entitled to both compensatory and exemplary damages. Additionally, the fifth instruction was deemed objectionable as it specifically called the attention of the jury in detail to the facts testified to by the owner, and relied on to excuse his conduct. Finally, the court noted that the sixth instruction was based upon the plea of contributory negligence. However, there was no evidence to show contributory negligence on the patron's part.

The case was remanded for a new trial.

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