with holes, wherein her foot might be caught.29 Evidence that similar conditions were general is sometimes admitted on the question of contributory negligence, as that fact imposes on the plaintiff a proportional obligation to be on the lookout and use special care in using the streets.8 30 § 7846. Further of Apertures, Defects, Obstructions, etc.-The fact that apertures in the sidewalk are permitted does not vary the liability of the city for damages happening through their defective construction or non-repair.31 Evidence that other similar apertures in great numbers, in different parts of the city, have existed for a long time, is not admissible to show that the particular aperture was not an actionable obstruction.32 Nor is it competent, for the purpose of showing that a particular construction of a sidewalk is not defective, to prove that other sidewalks are constructed in the same manner in different parts of the city;33 nor is it competent to prove that witnesses have seen other obstructions of the same size in sidewalks.34 § 7847. Evidence that Others had Used the Highway without Accident. This species of evidence is sometimes admitted. Manifestly, it bears on the question whether the defendant has exercised reasonable care in respect to its highways.35 Evidence of the effect on other carriages driven over the same road, by other persons than the plaintiff, is supposed to have a tendency to show the fitness or unfitness of the road for public travel, and has been, therefore, held relevant; and this is so, whether such carriages were like that driven by the plaintiff or not, and notwithstanding no evidence be given as to the rate of speed or degree of care with which they were driven.3 There is considerable authority, however, to the effect that evidence that other travellers had passed the particular place on the highway without injury is inadmissible.37 The reason for rejecting such evidence is "that 36 29 Chase v. Chicago, 20 Ill. App. 73 Mo. 219, where it was shown 274. To the same effect, see Clayton v. Brooks, 31 Ill. App. 62. 30 Heiss v. Lancaster, 203 Pa. St. 260; s. c. 52 Atl. Rep. 201. 31 Bacon v. Boston, 3 Cush. (Mass.) 174. 32 Bacon v. Boston, 3 Cush. (Mass.) 174. 23 George v. Haverhill, 110 Mass. 506. 34 George v. Haverhill, 110 Mass. 506. 35 Hubbell v. Yonkers, 104 N. Y. 434; s. c. 58 Am. Rep. 522. See Buesching v. St. Louis Gaslight Co., that the defendant had maintained the area into which the deceased fell, for twenty-five years without accident. 3 Kent v. Lincoln, 32 Vt. 591. 37 Birmingham v. Tayloe, 105 Ala. 170; s. c. 16 South. Rep. 576; Bauer v. Indianapolis, 99 Ind. 56, 61 [distinguishing Delphi v. Lowery, 74 Ind. 520]; Nave v. Flack, 90 Ind. 205; s. c. 46 Am. Rep. 205; Aldrich v. Pelham, 1 Gray (Mass.) 510; Branch v. Libbey, 78 Me. 321; s. c. 57 Am. Rep. 810. See also, Hubbard v. Augusta &c. R. Co., 39 Me. it is not pertinent to the issue, but is evidence concerning collateral facts, tending to draw away the minds of the jury from the point in issue, and to excite prejudice and to mislead them; and, moreover, the adverse party, having no notice of such a course of evidence, is not prepared to rebut it."38 It has been said that the entire weight of judicial authority has been against the reception of such evidence;3o and it has been held that such evidence is not admissible on crossexamination.40 But evidence that the plaintiff himself had previously passed over the place of the accident in safety, is manifestly relevant, because it bears upon the question of his knowledge of the place, and, consequently, of his contributory negligence.11 § 7848. Doctrine that Evidence of Other Accidents to Other Persons is Inadmissible. The courts are divided upon the question whether it is competent for the plaintiff to show that other accidents of a similar character had happened at the same place. Clearly, the reason stated in the preceding section will operate to exclude such evidence. In Massachusetts, it has been held improper to permit a witness to state that, before the happening of the injury to the plaintiff, he had received a similar injury at the same place. This was held to be testimony as to a collateral fact, which furnished no legal presumption as to the principal facts in dispute, and which the defendants were not bound to be prepared to meet.2 So, evidence that other 506; Collins v. Dorchester, 6 Cush. (Mass.) 396; Kidder v. Dunstable, 11 Gray (Mass.) 342; Schoonmaker v. Wilbraham, 110 Mass. 134; Hubbard v. Concord, 35 N. H. 52; Friend v. Burleigh, 53 Neb. 674; S. c. 74 N. W. Rep. 50; Temperance Hall Assn. v. Giles, 33 N. J. L. 260; Anderson v. Taft, 20 R. I. 362; s. c. 39 Atl. Rep. 191. 3 Branch v. Libbey, 78 Me. 321; s. c. 57 Am. Rep. 810. 39 Branch v. Libbey, 78 Me. 321; S. c. 57 Am. Rep. 810; Parker v. Portland Pub. Co., 69 Me. 75. 40 Moulton v. Scruton, 39 Me. 287. "Thus, in an action against a city to recover for an injury received by a fall from a sidewalk, where the negligence complained of was the failure to put a guard rail by the side of the walk, evidence that on previous nights the plaintiff went over the walk without difficulty or danger was held admissible: Smith v. Gilman, 38 Ill. App. 393. Alexander City, 137 Ala. 206; s. c. vehicles had passed each other at the same place without accident, was held inadmissible to show that the way was not defective in point of width.43 In an action against an overseer of highways for an injury growing out of the defective manner in which the highway was constructed, it is not competent to prove that other accidents of the same kind had taken place on the same spot, because this would involve an inquiry as to the circumstances under which such accidents took place, and this would open up too extensive a field of inquiry.** So, evi § 7849. Doctrine that such Evidence is Admissible. The weight of authority, however, seems to favor the admission of such evidence. For example, the Supreme Court of the United States has lent the great weight of its authority to the proposition that, in an action against a municipal corporation to recover damages for injuries received from a fall caused by a defective sidewalk, which was in an unguarded condition, it was competent to give evidence of other similar accidents when the sidewalk was in the same condition.4 45 dence that another person had fallen through the same drawbridge has been held admissible. In like manner, for the purpose of showing that the culvert on which the accident happened was defectively constructed, and that the town had knowledge of the fact, testimony was properly admitted that the culvert had previously given way. It has even been held that where the highway exhibited the same features for a considerable distance, evidence of a similar accident will not be rejected simply because it took place fifteen or twenty feet from the place where the accident happened to the plaintiff. The reasons which ad 46 Testimony in an action against a city Sherman v. Kortright, 52 Barb. (N. Y.) 267. 45 District of Columbia v. Armes, 107 U. S. 519. So held in the following cases: Aurora v. Brown, 12 Ill. App. 122; Taylorville v. Stafford, 196 Ill. 288; s. c. 63 N. E. Rep. 624; Avery v. Syracuse, 29 Hun (N. Y.) 47 537; Burns v. Schenectady, 24 Hun (N. Y.) 10; Pomfrey v. Saratoga Springs, 104 N. Y. 459, 469; Quinlan v. Utica, 11 Hun (N. Y.) 217; s. c. aff'd, 74 N. Y. 603. 46 Chicago v. Powers, 42 Ill. 169. 47 Willey v. Portsmouth, 35 N. H. 303. 48 Bailey v. Trumbull, 31 Conn. 580. But where a defect in a city sidewalk was slight, and negligence of the city in failing to repair it could be predicated only on the fact that numerous accidents had occurred there, evidence of a witness, in answer to a question if he remembered how many people he had seen fall "there" before the accident in question, that he could not "tell how many; very often," was insufficient to show that other accidents had occurred by reason of the particular defect complained of: Corson v. New York, 78 App. Div. mit this species of evidence are threefold: 1. Such evidence tends to show, in a manner the most convincing to the human understanding, that the highway was in fact defective and dangerous; 2. That the plaintiff was in the exercise of ordinary care, others having met with similar accidents; 3. That the municipal authorities probably had notice of the defective condition of the highway, since accidents to travellers are always matters of public notoriety."" 51 § 7850. Evidence of Subsequent Repairs.-Evidence that the town, after the accident, removed the obstruction which produced it, though inadmissible on the question of negligence,50 is admissible to show that the town had authority to remove it before the accident.51 Evidence of subsequent repairs is admissible, as a circumstance tending to show a previous recognition and adoption of the street as a highway,52 and, in some cases, to locate and identify the defect, where it is expressly limited by the court to that object 53 § 7851. Other Safe Route which might have been Taken.-In' an action against a county for injuries sustained from a defective bridge, the county may show that there was a safe and convenient route near (N. Y.) 481; s. c. 79 N. Y. Supp. 604. 49 The general purport of the following cases is in favor of admitting such evidence: Birmingham v. Starr, 112 Ala. 98; s. c. 20 South. Rep. 424; Calkins v. Hartford, 33 Conn. 57; House v. Metcalf, 27 Conn. 631; Osborne v. Detroit, 32 Fed. Rep. 36; Scott v. New Orleans, 75 Fed. Rep. 373; s. c. 41 U. S. App. 498; Augusta v. Hafers, 61 Ga. 48; Gilmer v. Atlanta, 77 Ga. 688; Bloomington v. Legg, 151 Ill. 9; s. c. 37 N. E. Rep. 696; aff'g s. c. 48 Ill. App. 459; Goshen v. England, 119 Ind. 368; s. c. 21 N. E. Rep. 977; Smith v. Des Moines, 84 Iowa 685; s. c. 51 N. W. Rep. 77; Topeka v. Sherwood, 39 Kan. 690; s. c. 18 Pac. Rep. 933; Hill v. Portland &c. R. Co., 55 Me. 438; Alberts v. Vernon, 96 Mich. 549; s. c. 55 N. W. Rep. 1022; Lombar v. East Tawas, 86 Mich. 14; s. c. 48 N. W. Rep. 947; Moore v. Kalamazoo, 109 Mich. 176; s. c. 3 Det. Leg. N. 52; 66 N. W. Rep. 1089; Burrows v. Lake Crystal, 61 Minn. 357; s. c. 63 N. W. Rep. 745; Golden v. Clinton, 54 Mo. App. 100; Higley v. Gilmer, 3 Mont. 90; Masters v. Troy, 50 Hun (N. Y.) 485; s. c. 20 N. Y. St. Rep. 273; Pomfrey v. Saratoga Springs, 104 N. Y. 459; s. c. 11 N. E. Rep. 43; Wooley v. Grand St. &c. R. Co., 83 N. Y. 121; Lundbeck v. Brooklyn, 26 App. Div. (N. Y.) 595; s. c. 50 N. Y. Supp. 421; Cook v. New Durham, 64 N. H. 419; s. c. 6 N. Eng. Rep. 200; 13 Atl. Rep. 650 Darling v. Westmoreland, 52 N. H. 401; Dow v. Weare, 68 N. H. 345; s. c. 44 Atl. Rep. 489; Belton v. Turner (Tex. Civ. App.), 27 S. W. Rep. 831 (no off. rep.); Kent v. Lincoln, 32 Vt. 591; Phillips v. Willow, 70 Wis. 6; s. c. 34 N. W. Rep. 731. 50 Vol. V, § 5986. See also, post, 7871; Dougan V. Champlain Transp. Co., 56 N. Y. 1. 51 Terre Haute &c. R. Co. v. Clem, 123 Ind. 15; Wabash Co. v. Pearson, 129 Ind. 456; Kennedy v. Cumberland, 65 Md. 514; s. c. 9 Atl. Rep. 234; Menard v. Boston &c. R. Co., 150 Mass. 386; Shinners v. Proprietors, 154 Mass. 168; s. c. 28 N. E. Rep. 10; Corcoran v. Peekskill, 108 N. Y. 151; Sewell v. Cohoes Co., 11 Hun (N. Y.) 626. 29 52 Manderschid V. Dubuque, Iowa 73; s. c. 4 Am. Rep. 196; Folsom v. Underhill, 36 Vt. 580. 53 Grundy v. Janesville, 84 Wis. 574; s. c. 54 N. W. Rep. 1085. 43 vehicles had passed each other at the same place without accident, was held inadmissible to show that the way was not defective in point of width. In an action against an overseer of highways for an injury growing out of the defective manner in which the highway was constructed, it is not competent to prove that other accidents of the same kind had taken place on the same spot, because this would involve an inquiry as to the circumstances under which such accidents took place, and this would open up too extensive a field of inquiry.** 44 § 7849. Doctrine that such Evidence is Admissible. The weight of authority, however, seems to favor the admission of such evidence. For example, the Supreme Court of the United States has lent the great weight of its authority to the proposition that, in an action against a municipal corporation to recover damages for injuries received from a fall caused by a defective sidewalk, which was in an unguarded condition, it was competent to give evidence of other similar accidents when the sidewalk was in the same condition.45 So, evidence that another person had fallen through the same drawbridge has been held admissible.46 In like manner, for the purpose of showing that the culvert on which the accident happened was defectively constructed, and that the town had knowledge of the fact, testimony was properly admitted that the culvert had previously given way. It has even been held that where the highway exhibited the same features for a considerable distance, evidence of a similar accident will not be rejected simply because it took place fifteen or twenty feet from the place where the accident happened to the plaintiff.48 The reasons which ad Testimony in an action against a city Sherman v. Kortright, 52 Barb. (N. Y.) 267. 45 District of Columbia v. Armes, 107 U. S. 519. So held in the following cases: Aurora v. Brown, 12 Ill. App. 122; Taylorville v. Stafford, 196 Ill. 288; s. c. 63 N. E. Rep. 624; Avery v. Syracuse, 29 Hun (N. Y.) 47 537; Burns v. Schenectady, 24 Hun (N. Y.) 10; Pomfrey v. Saratoga Springs, 104 N. Y. 459, 469; Quinlan v. Utica, 11 Hun (N. Y.) 217; s. c. aff'd, 74 N. Y. 603. 46 Chicago v. Powers, 42 Ill. 169. 47 Willey v. Portsmouth, 35 N. H. 303. 48 Bailey v. Trumbull, 31 Conn. 580. But where a defect in a city sidewalk was slight, and negligence of the city in failing to repair it could be predicated only on the fact that numerous accidents had occurred there, evidence of a witness, in answer to a question if he remembered how many people he had seen fall "there" before the accident in question, that he could not "tell how many; very often," was insufficient to show that other accidents had occurred by reason of the particular defect complained of: Corson v. New York, 78 App. Div. |