Foss v. Smith

Stafford, J. Trespass for assault and battery. Plea ■that plaintiff committed the first assault and that defendant used no more force than was necessary in self defense. The’ only exception relied upon is to the refusal to direct a verdict. The plaintiff claims that the defendant’s own testimony showed that, after he had completely passed the plaintiff in the highway, and when he might have driven on without danger of receiving further injury, he came back to where the plaintiff was and committed the assault for which the action is brought. Upon reading the testimony we are not satisfied that the claim is well founded, but think, rather, that the view of it most favorable to the defendant is that although his horses had passed the plaintiff’s sled before stopping, he himself was practically opposite the plaintiff, and on being assaulted by the latter immediately repelled the assault, using no more force than in1 the circumstances reasonably appeared to him to be necessary. r N Judgment affirmed.