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." § 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. "The general purport of the following cases isi in favor of admitting such eviderice: 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. New Orleans, 75 Fed. Rep. 373;. c. 41 U. S. App. 498; Augusta v. Hafers, 61 Ga. 48; Gilmer V. Atlanta, 77 Ga. 688; Bloomington v. egg, 151 Ill. 9; s. c. 37 N. E. Rep. 1696; 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. Rp. 77; Topeka v. Sherwood, 39 Ka 1690; s. c. 18 Pac. Rep. 933; Hill Portland &c. R. Co., 55 Me. 438; berts v. Vernon, 96 Mich. 549; s. 55 N. W. Rep. 1022; Lombar v. East Tawas, 86 Mich. 14; s. c. 48 N. W. Rep. 947; Moore v. Kalamaz. 109 Mich. 176; s. c. 3 Det. Leg. N. 2; 66 N. W. Rep. 1089; Burrows v. ake Crystal, 61 Minn. 357; s. c. 63 N. W. Rep. 745; Golden v. Clinton, Mo. App. 100; Higley v. Gilmer, 3 Mont. 90; Masters v. Troy, 50 H m (N. Y.) 485; s. c. 20 N. Y. St. Re. 273; Pomfrey v. Saratoga Springs, 104 N. Y. 459; 50 Vol. V, § 5986. See also, post, 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. 5 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. The reasons which ad Testimony in an action against a city for injuries received by a fall upon a sidewalk alleged to have been defective, as to a fall the witness had upon the same walk three or four days after the accident sued for, is inadmissible, especially without proof as to how the witness was walking, or whether she was using due care, or that her falling was due to the same defect, or that the sidewalk was in the same condition: McGrail V. Kalamazoo, 94 Mich. 52; s. c. 53 N. W. Rep. 955. 43 Aldrich V. Pelham, 1 Gray (Mass.) 510. 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. 40 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." § 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 isi in favor of admitting such eviderice: 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. New Orleans, 75 Fed. Rep. 373; . c. 41 U. S. App. 498; Augusta v. Hafers, 61 Ga. 48; Gilmer v. Atlanta, 77 Ga. 688; Bloomington v. egg, 151 Ill. 9; s. c. 37 N. E. Rep. 1696; 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. Rp. 77; Topeka v. Sherwood, 39 Ka 1690; s. c. 18 Pac. Rep. 933; Hill 1 Portland &c. R. Co., 55 Me. 438; berts v. Vernon, 96 Mich. 549; s. 55 N. W. Rep. 1022; Lombar v. East Tawas, 86 Mich. 14; s. c. 48 N. W. Rep. 947; Moore v. Kalamaz. 109 Mich. 176; s. c. 3 Det. Leg. N. 2; 66 N. W. Rep. 1089; Burrows v. ake Crystal, 61 Minn. 357; s. c. 63 V. W. Rep. 745; Golden v. Clinton, Mo. App. 100; Higley v. Gilmer, 3 Mont. 90; Masters v. Troy, 50 H m (N. Y.) 485; s. c. 20 N. Y. St. Re. 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, 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. ་་། by which plaintiff might have taken. It cannot, however, be charged, as matter of law, that he was guilty of contributory negligence in not taking it, even though he knew the bridge to be unsafe. Generally, where the principal defense to an action for injuries received in a fall on a defective sidewalk is that of contributory negligence, evidence of the unsafe condition of the walk on the other side of the street is admissible to show that it would have been just as dangerous to walk on that side of the street.55 57 § 7852. Evidence of the Habits of the Plaintiff's Horse.-To prove the habits of a horse driven by the plaintiff at the time of the accident, other instances in which the horse exhibited the particular vice are admissible. It has been held that evidence might be acmitted to the effect that the horse had exhibited the same vices six months afterward, if accompanied by proper instructions as to its application." Where it was a material question whether the plaintiff's horse, at the time of the accident, had the habit of shying, it has been held that the defendants, after introducing evidence of his shying before, might also prove similar instances afterward.58 Evidence that the plaintiff's agent had directed a farrier so to shoe her horse, which she was driving at the time of the accident, as to remedy the fault of stumbling, has been held admissible.59 § 7853. Evidence to Show that Other Horses were Frightened by Object in Highway.-Evidence is generally admissible to show that other horses had been frightened by an object in the highway claimed to have frightened the plaintiff's horse, as tending to show whether the object was calculated to frighten horses, where the general disposition of such horses is shown. Similarly, the efict upon different horses, which are ordinarily safe and gentle, of suspended flag, may be shown on the question whether or not a horse'rightened by it was ordinarily safe and gentle.2 Conversely, evident that numerous 54 Walker v. Decatur Co., 67 Iowa 307. 55 Burrows V. Lake Crystal, 61 Minn. 35; s. c. 63 N. W. Rep. 745. See also, Doan v. Willow Springs, 101 Wis. 112; s. c. 76 N. W. Rep. 1104. 58 Whittier v. Franklin, 46 N. H. 23. See also, Maggi v. Cutts, 123 Mass. 535. Compare Todd v. Rowley, 8 Allen (Mass.) 51. 57 Chamberlain v. Enfield, 43 N. H. 356. 58 Todd v. Rowley, 8 Allen (Mass.) 51. 50 Sprague v. Bistol, 63 N. H. 430. 60 Thomas v. Singville City, 9 Utah 426; s. c. Pac. Rep. 503; Potter v. Natura Gas Co., 183 Pa. St. 575; s. c. 39/ Rep. 7; Wilson v. Spafford, 57 1 (N. Y.) 589; s. c. 32 N. Y. St. p. 532; 10 N. Y. Supp. 649; Elg v. Thompson, 98 Ill. App. 358. 61 Cleveland & R. Co. v. Wynant, 114 Ind. 525; c. 14 West. Rep. 512; 17 N. E. Jp. 118. 62 Bemis v. Taple, 162 Mass. 342; s. c. 26 L. R. 254; 38 N. E. Rep. 970. horses have been driven past the object in the daytime without becoming frightened, is not admissible for the defendant in an action for injuries caused by fright of a horse at an object in the highway while being driven after dark, as this evidence has no tendency to show that even quiet horses would not be frightened at the object after dark, when it might appear distorted and unnatural.68 $7854. Evidence of Careful and Skillful Habits of Traveller. -Evidence that the plaintiff was commonly a careful and skillful driver is not admissible to show that when the accident occurred he was in the exercise of due care.66 The principle is, that the question whether a person was at a given time in the exercise of due care is to be resolved upon evidence of what took place at the time, and not upon evidence of the general character he may sustain.67 Evidence that travellers were accustomed to warn each other to avoid meeting others at a spot in a highway where an accident occurred is not admissible in an action against the town to recover for injuries caused by the accident, as such evidence is no more than hearsay evidence of opinions as. to the sufficiency of the highway at the particular point. Evidence of one who saw the plaintiff's intestate driving slowly at a point near the place of the accident is admissible to rebut the evidence of witnesses for the defendant that the deceased was driving at a rapid gait at a point more remote from the place where the injuries from the defective condition of the highway were received." 68 § 7855. Relevancy and Irrelevancy of Evidence in Particular Cases. In an action for damages growing out of the death of a footpassenger who had fallen into a basin of water over which the highway crossed, it was held admissible to prove the noxious character of the water, in order to show that, by reason of its condition, the danger to a person falling into it would be increased.70 On the question of reasonable care, the defendants cannot be allowed to prove that the condition of the highway was worse in some other places, and es Bloor v. Delafield, 69 Wis. 273; S. c. 34 N. W. Rep. 115. O'Neill v. Dry Dock &c. R. Co., 36 N. Y. St. Rep. 934; s. c. 15 N. Y. Supp. 84; McDonald v. Savoy, 110 Mass. 49. 67 Tenney V. Tuttle, 1 Allen (Mass.) 185; Gahagan v. Boston &c. R. Co., 1 Allen (Mass.) 187, denying the contrary remark in Adams v. Carlisle, 21 Pick. (Mass.) 146. Evidence that for the last fifteen or twenty years plaintiff had been addicted to the excessive use of intoxicants was inadmissible: Browne v. Bachman, 31 Tex. Civ. App. 430; s. c. 72 S. W. Rep. 622. es Colburn v. Groton, 66 N. H. 151; s. c. 22 L. R. A. 763; 28 Atl. Rep. 95. 69 Brown v. Swanton, 69 Vt. 53; s. c. 37 Atl. Rep. 280. TO Chicago v. Gallagher, 44 Ill. 295. |