Year: 1861

Decisions OF the supreme Court OF the


State of Tennesseet at Knoxville, SeP-


temDer Term, 1880.


Cogdsll Yeti.


The judgment must be reversed. 1t is clearly
proved that in the difuty between Yeti and Brooks
the former struck the first blow with yardstlck
and repeated it two or three times 1t previously as
sauted by Brooks, rs the weight of proof seems to
establish the assault was only with his hand or fist
no weapon being used by Brooks at that time, or
until after he received the blows with the yardstick
as it would seem.


Upon this proof it cannot be affirmed that Yeti
was blameless in the eye Of the law. We are not
prepared TO admit that the of the yardstick
justifiabe in resisting an assault made by one who
at the time was unarmed. But be this as it may, it
would seem from the proof as set forth in the re-
cord before US, that Yeti fought willingly, and both,
we think, were guilty of an qfrGy. There is moth
ing in the proef show that Yeti might not easily
and with safety to himself hare avoided the diff
Guilty by retreatng and refusing 10 enter into quar-
rel and fight. Clearly there existed no such incvtG
bic necessity, as would be sufficient to excuse the
defendant for putting out the eye of plaintiff though
wholly innocent of any such intention.


The act of engsging in the fight with Brooks be-
ing unlawful, the defendant would be liable TO dam
ages for any injury inflicted by him third per
son during the fight, though no such injury may
have been intended-proVided such third person
had not by his own improper conduct brought the
injury upon himself, by offciously or improperly
introducing himselfin the way of danger. The case
is one OF no very strong merits. perhaps on the
part of the plaintiff. He was the brother-in-lawb
Brooks, and If present at the time the blows with
the yardstick were inflicted, by defendant, on
Brooks, (about which fact there is conflict in the
proof his attitude at the time was st least squivo
cal, from the proof. He waa standing in contact
with Brooks is stated on the one side, and it is
not shown that he attempted to suppress the afay.
If he placed himself in that condition for any
lawful or improper purpose, the law would leave
him to suffer ths consequences. And even if no
such purpose was entertained, still il he recklessly
and unnecessarily places himself in q situa-
tion which necessarily IN some degree exposed him
to INJURY, it was his his own folly and in such
/ he would be without remedy. See Greenlesf
sec. "a. Whereby VS.. Whiteman. Heads Rep. 6I0.


The plea of son dSsdad de1Besne was wholly inap-
propriate to the case presented the record be-
fore US. But where that plea is properly pleaded,
together with the plea of not guilty. the latter plea
puts the plaintiff upon proof of every material ale
CATION in the declaration, the court properly
held.


Upon charge free from exceptioas, the verdict
might be supported upon the evidence in the record
on the ground, first, Of the conflict in the proof an
to whether the plaintiff in fact present in the
house, when the afiray commenced; and secondly,
that, if he were present, he may have Voluntarily,
and improperly, or it may be unlawfully, placed
himself in danger of an accidental or unintentonal
injury.


But from the charge, the Jury may have been
misled into the conclusion that the act of violence
toward Brooks, under the circumstances, was tdas-
jul


And possibly this may have been so upon the
facts as proved upon the trial, hut we think II
not so, upon the meager and rather unsatisfactory
statement of the proof in this record. And on tins
the Judgment MCKINNEY.


Atrps copy. w.R cAswzI,gclerk.