CHAPTER CCIX.

EVIDENCE IN ACTIONS AGAINST STREET RAILROAD COMPANIES IN OTHER THAN THE CARRIER OR EMPLOYER RELATION.

§ 7815. Speed of Car Causing Injury.-On the question whether the speed of a street car was excessive, evidence of the distance traversed and the schedule time of making a round trip on a certain street is competent as tending to show the average rate of speed of running cars on such street as a basis of comparison with the rate at which the car was travelling at the time of the collision. On this inquiry, it may be shown that a street car was behind its schedule time and trying to make up time at the time of the collision; and it is not error to permit a witness to state that "the car was going faster than any horse and buggy would travel over a good road at any kind of a trot," as the latter fact is a matter of common knowledge and observation. An ordinance regulating the speed of electric street cars is not relevant in the absence of evidence of the speed of the particular car.1 As bearing on the question of the motorman's control of his car, evidence as to the distance the car ran after it struck a person is properly admitted. On the question of negligence in failing to stop a car in time to prevent a collision, evidence is admissible to show within what distance cars so propelled at such a rate of speed had previously been stopped, but not cars of entirely different construction

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and differently equipped. A witness testifying that a car was proceeding at the usual rate of speed at the time of the collision may very properly be questioned as to this usual rate.

§7816. Reputation of Motorman for Care.-Where the issue is not whether a careless or unskillful motorman was in charge of the car, but whether his negligence contributed to the accident, evidence as to his competency or general character is inadmissible. But testimony of a witness that he had seen a motorman looking backwards when his car was in motion, has been held admissible to rebut evidence for defendant that he was a careful motorman and a careful man generally.1

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§ 7817. Whether Injured Person Stopped, Looked, and Listened.— Mere proof that the hearing of one driving on a street car track was good, and that he did not hear a car approaching from behind,. does not warrant the inference that he was listening for it. On the question whether a gong was sounded as claimed, it is proper to admit evidence of witnesses in a position to have heard the gong, if it had been sounded, that they did not hear the gong.12 In one case where it was sought to charge the plaintiff with contributory negligence, it was very properly held that his testimony that he stopped to look and listen for cars, but did not see the one that struck him, was not so incredible that it should have been disregarded, when the evidence of the motorman himself was that he could not see more than five feet ahead of his car, and there was evidence that the gong was not sounded.13 Similarly, it has been held that the testimony of a woman injured by a street car, that she was in the habit of looking when crossing the streets, in connection with the testimony of another witness that the plaintiff did look on the occasion in question, is sufficient to justify a finding in her favor, although the plaintiff could not remember whether she looked on that particular occasion or not.14

Richmond Passenger &c. Co. v. Rack, 101 Va. 487; s. c. 44 S. E. Rep. 709.

8 Robbins v. Springfield St. R. Co., 165 Mass. 30; s. c. 42 N. E. Rep. 334. • Sunderland v. Pioneer Fire Proof Const. Co., 78 Ill. App. 102; Wooster v. Broadway &c. R. Co., 72 Hun (N. Y.) 197; s. c. 55 N. Y. St. Rep. 174; 25 N. Y. Supp. 378. Thus, in an action for injuries from a collision between an electric street car and a team, evidence that the particular motorman had run his car at a high rate of speed on other occasions is inadmissible: Christensen v. Union

Trunk Line, 6 Wash. 75; s. c. 32 Pac.
Rep. 1018.

10 Budd v. Meriden Electric R. Co., 69 Conn. 272; s. c. 37 Atl. Rep. 683.

"Belford v. Brooklyn Heights R. Co., 86 App. Div. (N. Y.) 388; s. c. 83 N. Y. Supp. 836.

12 Murray v. St. Louis Transit Co., 176 Mo. 183; s. c. 75 S. W. Rep. 611.

13 Frank v. St. Louis Transit Co., 99 Mo. App. 323; s. c. 73 S. W. Rep. 239.

14 Cowan v. Third Avenue R. Co., 56 Hun (N. Y.) 644; s. c. 31 N. Y. St. Rep. 145; 9 N. Y. Supp. 610.

§ 7818.

Distance at which Electric Car can be Heard.-Evidence as to the distance at which electric cars on the different lines of defendant's system, other than that on which occurred the accident for which suit is brought, could be heard, is properly refused in the absence of evidence that the cars on such lines were of the same character and operated under the same conditions as the car causing the injury.15

§ 7819. Discernibility of Objects on Track Ahead.-On this question, evidence is admissible to show whether there were obstructions which prevented the motorman from seeing persons approaching the track from the side of the street ahead.16 But evidence as to the distance at which a person killed by an electric car could have been seen by the motorman is immaterial, where the accident occurred in the middle of a block, the night was dark, and the deceased could more easily have seen the car than the motorman could have seen him.17

§ 7820. Custom as to Running on Particular Track of Double Track System.-A custom of running all north-bound cars on the east track and all south-bound cars on the west track may be proved in an action for injuries received in a collision with an overtaking car on the west track going north, though there was no allegation that running the car northward on the west track was negligence.18

§ 7821. Condition of Track at Other Places.-The condition of the track at other places in the immediate vicinity of the portion of the track at the scene of the accident claimed to have been in bad condition, is admissible to show that the general condition of the track was so notorious that knowledge thereof could not have escaped the street railway officials.18

§ 7822. Use of Tracks by Vehicles.-Evidence that the public is in the habit of driving and travelling on the track of an electric streetrailway is admissible upon the question whether it was negligence to run a car at night without a light.20 It has been held competent for a motorman of an electric car injured by collision with a wagon,

15 Wilkins v. Omaha &c. R. Co., 96 Iowa 668; s. c. 65 N. W. Rep. 987.

16 Levin v. Metropolitan St. R. Co., 140 Mo. 624; s. c. 41 S. W. Rep. 968. "Reich v. Union R. Co., 78 Hun (N. Y.) 417; s. c. 28 N. Y. Supp. 1105; 60 N. Y. St. Rep. 450.

18 North Chicago St. R. Co. v. Irwin, 202 Ill. 345; s. c. 66 N. E. Rep. 1077.

19 Houston City St. R. Co. v. Medlenka, 17 Tex. Civ. App. 621; s. c. 43 S. W. Rep. 1028. But see Cunningham v. Fair Haven &c. R. Co., 72 Conn. 244; s. c. 43 Atl. Rep. 1047.

20 Rascher v. East Detroit &c. R. Co., 90 Mich. 413; s. c. 51 N. W. Rep. 463.

claimed to have been negligently driven in front of the car, to show that the car, which was run on schedule time, was on time when the accident occurred.21

§ 7823. Piling Snow in Street.-In an action for injuries caused by driving into a snowbank piled in the street by a street railway company, evidence that it piled snow in other places than that where the accident occurred is not erroneously admitted, if it is confined to the immediate vicinity of the place of the accident.22 Applying a very familiar principle in the law of negligence, it has been held, upon the issue whether a street railway company erected a snowbank at the side of its track, and permitted the same to remain for such an unreasonable length of time that it became an obstruction in the street, that it could not be shown that the company removed the snowbank after the accident occurred as an admission of negligence in the first instance.23

21 Price v. Charles Warner Co., 1 Pen. (Del.) 462; s. c. 42 Atl. Rep. 699.

90 Wis. 522; s. c. 63 N. W. Rep. 1048.

23 Markowitz v. Dry Dock &c. R. Co., 12 Misc. (N. Y.) 412; s. c. 67 N. 22 Mayer v. Milwaukee St. R. Co., Y. St. Rep. 572; 33 N. Y. Supp. 702.

7828. Injuries received in boarding 7834. Speed of train to show vio

or alighting from cars.

lence of collision.

7829. Admissibility of rules for gov- 7835. Unsuitableness of place select

§ 7826. Preliminary.-The subject of the admissibility of evidence in actions of this character has received attention in the volume having to do with the subject of negligence in its relation to carriers of passengers, to which the reader is referred;1 and hence, an extended treatment of the subject at this time is unnecessary and will not be attempted. The matter in the following sections has been encountered in the preparation of later subjects, and its insertion now is intended to supplement the earlier presentation referred to.

§ 7827. Whether Injured Person was a Passenger.—On the question whether the injured person was a passenger at the time of receiving injuries on the carrier's premises, evidence of an intent to take passage at the time injuries were received is generally admissible.2 In the case of injuries to one travelling on a freight train in violation of a rule prohibiting the carriage of passengers on freight trains, it is allowable to prove the general and open disregard of this rule by the

1 See Vol. III.

Chicago &c. R. Co. v. Chancellor, 165 Ill. 438; s. c. 46 N. E. Rep. 269; rev'g s. c. 60 Ill. App. 525. Where deceased was killed while crossing one of defendant's railroad tracks, and it was alleged that he was not a trespasser, but was crossing over to board defendant's passenger train

on another track, evidence that about a half hour before the accident, as deceased was leaving his home, his father gave him a nickel for car fare, and that a nickel was all the money afterwards found on his person, was admissible: Chicago &c. R. Co. v. Huston, 196 Ill. 480: s. c. 73 N. E. Rep. 1028.