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.5+ 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 58 § 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 admitted to the effect that the horse had exhibited the same vices six months afterward, if accompanied by proper instructions as to its application.57 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, t stumbling, has been held admissible.50 60 en 8 anral eta. § 7853. Evidence to Show that Other Horses weret ishtened by Object in Highway.-Evidence is generally admissib der show that other horses had been frightened by an object in the way claimed to have frightened the plaintiff's horse, as tending teow whether the object was calculated to frighten horses, where he general disposition of such horses is shown. Similarly, the ef & upon different horses, which are ordinarily safe and gentle, of Haspended flag, be shown on the question whether or not a hors lightened by it was ordinarily safe and gentle.2 Conversely, evidenrg, hat numerous may 54 Walker v. Decatur Co., 67 Iowa 307. 61 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. 5 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. Y 59 Sprague v. Bol, 63 N. H. 430. 60 Thomas v. Si ingville City, 9 Utah 426; s. c. 1 Pac. Rep. 503; Potter v. Natura Gas Co., 183 Pa. St. 575; s. c. 39 1. Rep. 7; Wilson v. Spafford, 57 a (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 & 114 Ind. 525; 512; 17 N. E. 62 Bemis v. T6 e R. Co. v. Wynant, c. 14 West. Rep. p. 118. aple, 162 Mass. 342; s. c. 26 L. R. A 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. The principle is, that the question whether a person was at 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.68 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.oo § 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. 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. 06 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 70 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. 65 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. pecially outside of the village bounds." Where the action was for an injury alleged to have been sustained by falling over an obstruction in the night-time, where the city had negligently left the street-lamp unlighted, evidence touching the location and lighting of the city lamps in the vicinity of the obstruction, at the time of the accident, was of course admissible.72 Where the witness for the defendants had testified that a horse of the plaintiff was driven at the rate of ten miles an hour for the whole of the forty rods next before reaching the place of the accident, but a witness familiar with the horse had testified, for the plaintiff, that the usual gait of the horse was not more than five or six miles an hour, it was held that, to support their defense and corroborate their witness, as well as to contradict the witness for the plaintiff, the defendants might show by another witness that the plaintiff was driving at the rate of speed to which their first witness had testified, and that the exclusion of such testimony was error.73 In order to account for the violence of his horse, the plaintiff may show that, near the place where the injury occurred, there was in the road another defect, which he had just passed, though without injury." Evidence that the obstruction which caused the injury was on the highway the day before the accident, but had been removed at night, has been held inadmissible for the purpose of showing that the town had notice of the obstruction.75 The fact that an adjacent proprietor piled timbers on two sticks which lay embedded in the ground, projecting toward the travelled part of the highway, has been held evidence to charge him in an action against him by the town to recover damages which the town had been compelled to pay on account of the obstruction being in the highway. After several physicians had testified that, in their opinion, the plaintiff ought to have kept quiet after receiving the injury, the plaintiff was permitted to prove that he had been advised by a practicing physician in good standing that he might pursue his professional labors to a moderate extent." Where the injury was alleged to have been caused by reason of the highway being of insufficient width, and also by reason of other defects in the highway, it was held that the plaintiff might introduce evidence of its width nine months after the injury, in connection with evidence that the width had not been changed.78 Witnesses may testify as to the 76 Donaldson v. Boston, 16 Gray (Mass.) 508. 76 Stoughton v. Porter, 13 Allen (Mass.) 191. "Gilman v. Deerfield, 15 Gray (Mass.) 577. 7 Brooks v. Petersham, 16 Gray (Mass.) 181. particular circumstances which called their attention to the defect,as, that the wheels of their vehicles ran into it, or their horses shied at it. A witness living at a house opposite to a depression in a street which is alleged to have caused personal injuries, may testify that she heard wagons going into such depression at night, since such evidence is that of her senses, and not a mere conclusion.80 Where the question was as to the depth of a ridge of snow which had been deposited on the sidewalk in ploughing out the snow from a street-railway track, it was not competent to prove the depth of the snow in the neighboring woods on the same day.81 The question whether the plaintiff, in an action for personal injuries caused by a defective highway, recovered damages of another town which he had sued for other injuries, is clearly irrelevant.82 83 § 7856. Evidence for the Defendant.-Evidence for the defendant that there were a great number of bridges in the city that were built higher than the street, and that nearly all of the approaches to these bridges were raised, was properly rejected as irrelevant. Where the action was to recover damages for an injury sustained on that part of the highway between the carriage-way and the sidewalk, evidence that in other towns and cities inequalities of the surface of that part of the highway were of common occurrence, was held admissible as bearing on the question of ordinary care; but evidence that such inequalities 562. Tomlinson v. Derby, 43 Conn. 80 Grundy v. Janesville, 84 Wis. 574; s. c. 54 N. W. Rep. 1085. $1 Brooks v. Acton, 117 Mass. 204. In an action by a husband and wife for an injury to the wife from a defect in a plank sidewalk of the highway, she testified that she was travelling on the sidewalk in the evening, when she stepped into a certain hole between the planks of the sidewalk, and was injured. It was held competent for the husband to testify, afterward, that there were other holes in the planks in that vicinity, in order to show that they were the defects which caused the injury, and that she was mistaken in her location of the defective place; or else to show that, there being other holes near each other, it was impossible, on account of the darkness, for her to tell which of them caused it: Ghenn v. Provincetown, 105 Mass. 313. Where the court permitted the defendant, on cross-examination of the plain tiff, to show that she had had some difficulty with the city about a sidewalk tax, but refused to allow further cross-examination as to the particulars of such difficulty, it was held no abuse of discretion: Luck v. Ripon, 52 Wis. 196. A finding that an owner of abutting property negligently suffered a trap-door in a sidewalk to become decayed and insecurely supported, so as to be unsafe for travel, is justified by evidence that the only support of the planks was about an inch in width of a perishable wooden stringer; that the middle stringer of the sidewalk was cut away, and that they were left in that condition for eighteen years without inspection: Wabasha v. Southworth, 54 Minn. 79; s. c. 55 N. W. Rep. 818. 82 Jacobs v. Croydon, 67 N. H. 591; S. c. 27 Atl. Rep. 122. 83 Perkins v. Fond du Lac, 34 Wis. 435. Compare Hubbard v. Concord, 35 N. H. 52; Timm v. Bear, 29 Wis. 256. 84 were not deemed to be a portion of the highway required to be reduced to a level, and to be kept in repair for the use of passengers, was held inadmissible. Where the alleged defect consisted in a gutter running obliquely across the highway, it was held competent for the defendants to show, upon the question of ordinary care, that a great many gutters, equally deep, crossed the highways in the same manner in the same town, and in other towns near by.85 But where the accident happened in consequence of a drain being left uncovered in the highway, evidence that it was usual for towns in that county to leave drains uncovered was inadmissible, unless there was evidence that the plaintiff knew of such a practice, although she had very often passed by the place where the accident happened.86 In a case where the injury was caused by plaintiff slipping from a plank projecting above a gravel sidewalk, the defendants introduced evidence that, from the time of the accident to a day ten months later, the plank remained in exactly the same position; that on that day it was taken up to measure its thickness; and that in putting it down again it was left half an inch higher than when taken up. They then offered evidence of accurate measurements of its height, taken afterward on the same day. It was held that this evidence was properly excluded. On the question whether the highway surveyor has used due diligence in repairing the highway after a sudden thaw, it has been held admissible for a town to show the condition of the roads at the time, the number of miles of road the town had to keep in repair, and the number of inhabitants in the town.88 Under the circumstances of one case, it was held proper to reject evidence to the effect that, owing to the topographical character of the region, it was customary and necessary, for the most part, to construct highways on the hillsides, as the one in question was constructed.89 Where the action was for an injury caused by snow and ice on the sidewalk, and a witness for the plaintiff had described the condition of the sidewalk, it was held that he might be asked, on cross-examination, whether snow and ice had not been removed from the sidewalk as well as could be conveniently done by a man with a shovel. Where the injury was caused by an alleged defect in the construction of the highway, it is not erroneous to permit the defendant to prove that it consulted several persons, who approved of the way in which the road had been 87 "Raymond V. Lowell, 6 Cush. (Mass.) 524. Packard v. New Bedford, 9 Allen (Mass.) 200. So Hinkley v. Barnstable, 109 Mass. 126. 87 George v. Haverhill, 110 Mass. 506. 88 Spear v. Lowell, 47 Vt. 692. 647. 90 O'Neill V. Lowell, 6 Allen (Mass.) 110. |