built.91 For like reasons, evidence is admissible that the planks in a sidewalk, claimed to have been defective, were originally laid in the ordinary way, and were of good, sound timber.92 In such an action it has been held competent for the defendant to prove the extent and situation of the highways of the town, with a view to representing the demands upon it for the use of funds for the period in question." But another court held that in an action against a city for damages caused by the negligent construction of a sewer, an offer to prove that the amount of money which the city had for use in the construction of sewers, etc., would be insufficient to protect all property-owners, is irrelevant, the action being, not for failure to construct a sewer, but for negligence in doing it. On the trial of a suit against a town for injuries sustained by the breaking of a bridge, a witness for the plaintiff having testified that a load which had broken through the bridge was in his opinion a proper one, and that he had driven such loads through the neighboring towns without breaking through the bridges, it was held that the defendant might show that the witness had with such a load broken through a sluice bridge and injured the roads in one of the neighboring towns.95 1 Chicago v. Powers, 42 Ill. 169. s. c. 23 S. W. Rep. 57. Ivory v. Deerpark, 116 N. Y. 476; s. c. 27 N. Y. St. Rep. 643; 22 N. E. Rep. 1080. "Frostburg v. Hitchins, 70 Md. 56; s. c. 19 Md. L. J. 932; 16 Atl. Rep. 380. Wilson v. Granby, 47 Conn. 59. CHAPTER CCXII. MISCELLANEOUS QUESTIONS OF EVIDENCE. SECTION SECTION 7863. Negligence may be proved by 7879. Compulsory examination of circumstantial evidence. 7864. Privileged communications. 7865. Negative evidence Witness injured person. 7880. Exhibition of parts of body amputated or removed. did not hear bell, whistle, 7881. Injured person may wear etc. 7866. Testimony of the plaintiff on former trial. clothes worn at time injury was received. 7882. Customs and usages. 7867. Evidence to show hostile feel- 7883. Habits and reputation. ings of the witness. 7868. Ordinances. 7869. Records of Weather Bureau. 7870. Evidence of conditions before and after accident. 7871. Evidence of repairs and precautions after the accident 7884. Habits and character of inde pendent contractor. 7885. Youth as reason for failure to call witness. 7886. Reason for bringing suit in particular jurisdiction may be shown. -When such evidence ad- 7887. Evidence incidentally tending missible. 7872. Evidence of similar accidents or long use without acci- 7873. Evidence to prove general con- 7874. Experiments and tests. 7875. Verification of model used for purpose of illustration. 7876. Diagrams. 7877. Photographs and maps. 7878. View of locality. to show other negligence. 7888. Malpractice of physicians, surgeons, dentists, and attorneys. 7889. Dangerous premises. 7890. Defects in bridges and approaches. 7891. Negligence in condition of electric wires and apparatus. 7892. Injuries by animals. 7893. Injuries caused by reckless driving. § 7863. Negligence may be Proved by Circumstantial Evidence. -Negligence of either the defendant or the plaintiff need not be shown by direct and positive evidence, but may be inferred from other facts which are proved in the case when such an inference is a reasonable and natural one to be made, but a presumption of negligence cannot be based on mere theories or by simple deductions from other presumptions. In other words, a verdict for negligence may be supported by inference, but such inference must be a logical, probable and reasonable deduction from proved or conceded facts.1 Negligence cannot be a mere matter of conjecture, but must be fairly inferrable from the evidence. This principle permits the admission of circumstantial evidence to contradict positive and direct testimony given by eyewitnesses. It is not incumbent upon the plaintiff, after proving an accident which implies negligence, to show the particular negligence, when from the circumstances it is not in his power to do § 7864. Privileged Communications.-The codes, without exception, provide that a physician cannot, without the consent of his patient, be examined in a civil case as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient. The relation of physician and patient will ex 5 'Dolby v. Hearn, 1 Marv. (Del.) 153; s. c. 37 Atl. Rep. 45; Chicago &c. R. Co. v. Gunderson, 174 Ill. 495; s. c. 51 N. E. Rep. 708; aff'g s. c. 74 Ill. App. 356; Chicago v. Early, 104 Ill. App. 398; Gerke v. Fancher, 57 Ill. App. 651; Louisville &c. Consol. R. Co. v. McCullom, 54 Ill. App. 69; Sontag v. O'Hare, 73 Ill. App. 432; Wachtel v. East St. Louis &c. R. Co., 77 Ill. App. 465; Pittsburgh &c. R. Co. v. Wilson, 161 Ind. 701; s. c. 66 N. E. Rep. 899 (fire set out by locomotive); Atchison &c. R. Co. v. McFarland, 2 Kan. App. 662; s. c. 43 Pac. Rep. 788; Baltimore &c. R. Co. v. State, 71 Md. 590; s. c. 18 Atl. Rep. 969; Doyle v. Boston &c. R. Co., 145 Mass. 386; s. c. 5 N. Eng. Rep. 454; 14 N. E. Rep. 461; Rosenfield v. Arrol, 44 Minn. 395; s. c. 46 N. W. Rep. 768; Rine v. Chicago &c. R. Co., 100 Mo. 228; s. c. 41 Am. & Eng. R. Cas. 555; 12 S. W. Rep. 640; Chorn v. Missouri &c. R. Co., 55 Mo. App. 163; Harned v. Missouri &c. R. Co., 51 Mo. App. 482; Haynes v. Wabash R. Co., 54 Mo. App. 582; Kearney Canal &c. Co. v. Akeyson, 45 Neb. 635; s. c. 63 N. W. Rep. 921; McLean v. Standard Oil Co., 66 Hun (N. Y.) 635; s. c. 50 N. Y. St. Rep. 626; 21 N. Y. Supp. 874; Sullivan v. Syracuse, 77 Hun (N. Y.) 440; s. c. 60 N. Y. St. Rep. 674; 29 N. Y. Supp. 105 (freedom from contributory negligence can be proved in like manner); Dixey v. Philadelphia Traction Co., 180 Pa. St. 401; s. c. 36 Atl. Rep. 924; Washington &c. R. Co. v. Grant, 11 App. (D. C.) 107; s. c. 25 Wash. L. Rep. 342; Rainville v. Grand Trunk R. Co., 28 Ont. Rep. 625 (fire set out by locomotive). That a fire which started in plaintiff's field was set by a traction engine may be shown by evidence that it was discovered shortly after the engine passed through the field and apparently near where it passed, that scorched or partly burned chips, such as were used in the engine, were found in its track through the premises, and that no other cause of fire existed: Coffman v. McCauslin, 70 Mo. App. 34. 2 Pierce v. Davis, 80 Fed. Rep. 865; Scott v. Yazoo &c. R. Co., 72 * Galveston &c. R. Co. v. Parsley, "See generally, New York &c. R. 10. ist, so as to exclude testimony of this character, where a physician is first called by the defendant to examine the injured person, and such physician afterward visits and prescribes for him. The privilege does not extend to third persons, and hence does not prevent testimony by a third person present at the time of an examination by the physician, as to statements made by the injured person to the physician as to what caused the injury." The privilege may be waived by the patient, and is waived where the patient testifies as to the privileged matters himself," or calls his physician for that purpose.11 But the patient, by calling one of numerous physicians treating him, will not thereby waive his privilege as to the other physicians.12 Under the rule, a consulting physician may not testify as to what was said in consultation in the presence of the patient, although he did not agree with the diagnosis of the regularphysician.13 The general rule excluding confidential communications, or the result of observations or examinations made by a physician of his patient's condition, does not apply in an action against him by his patient for alleged malpractice in the treatment of the injury in connection with which such communications and examinations were made.14 Communications between attorney and client, where made for Co. v. Mushrush, 11 Ind. App. 192; s. c. 37 N. E. Rep. 954; Colorado Fuel &c. Co. v. Cummings, 8 Colo. App. 541; s. c. 46 Pac. Rep. 875; Baxter v. Cedar Rapids, 103 Iowa 599; s. c. 72 N. W. Rep. 790; Lammiman v. Detroit Citizens' St. R. Co., 112 Mich. 602; s. c. 4 Det. Leg. N. 134; 71 N. W. Rep. 153; Enright v. Brooklyn Heights R. Co., 26 App. Div. (N. Y.) 538; s. c. 50 N. Y. Supp. 609; Barker v. Cunard S. S. Co., 91 Hun (N. Y.) 495; s. c. 70 N. Y. St. Rep. 858; 36 N. Y. Supp. 256; 25 Civ. Proc. (N. Y.) 108. 6 Freel v. Market St. &c. R. Co., 97 Cal. 40; s. c. 31 Pac. Rep. 730; Weitz v. Mound City R. Co., 53 Mo. App. 39. So, the relation of physician and patient within the contemplation of Colo. Gen. Stat., § 3649, prohibiting the examination of a physician or surgeon, without the consent of his patient, as to any information which he may have acquired by attending him, exists between a physician and an employé of a corporation whom he treats, where the physician is hired by the employer and another company, but is paid from the contributions of the employés of both companies: Colorado Fuel &c. Co. v. Cummings, 8 Colo.. 'Springer v. Byram, 137 Ind. 15; s. c. 23 L. R. A. 244; 36 N. E. Rep.. 361; Bowles v. Kansas City, 51 Mo.. App. 416. 8 Zimmer v. Third Ave. R. Co., 36. App. Div. (N. Y.) 265; s. c. 55 N. Y.. Supp. 308. 10 Lane v. Boicourt, 128 Ind. 420; s. c. 25 Am. St. Rep. 442; 27 N. E. Rep. 1111; Springer v. Byram, 137 Ind. 15; s. c. 36 N. E. Rep. 361; Alberti v. New York &c. R. Co., 43 Hun (N. Y.) 421; Marx v. Manhattan R. Co., 56 Hun (N. Y.) 575; Treanor v. Manhattan R. Co., 41 N. Y. St. Rep. 614; s. c. 28 Abb. N. Cas. (N. Y.) 47; 16 N. Y. Supp. 536. 11 Lissak v. Crocker Estate Co., 119 Cal. 442; s. c. 51 Pac. Rep. 688; Thompson v. Ish, 99 Mo. 160; s. c. 17 Am. St. Rep. 552; 12 S. W. Rep. 510; Holcomb v. Harris, 166 N. Y. 257; s. c. 59 N. E. Rep. 820. 12 Mellor v. Missouri &c. R. Co., 105 Mo. 455; s. c. 10 L. R. A. 36; 14 S. W. Rep. 758; 16 S. W. Rep. 849. 13 Morris v. New York &c. R. Co.,.. 73 Hun (N. Y.) 560; s. c. 56 N. Y.. St. Rep. 231; 26 N. Y. Supp. 342. 14 Becknell v. Hosier, 10 Ind. App. 5; s. c. 37 N. E. Rep. 580. the purpose of professional advice or aid, are privileged.15 Thus, reports made by railroad agents to their superior officers for the express purpose of submission to counsel to enable the latter to prepare a defense in a pending action for damages, are privileged as com-munications made to counsel.16 § 7865. Negative Evidence-Witnesses Did Not Hear Bell, Whistle, etc.-The evidence of persons in a position to note whether signals were given, and who gave attention to the matter and testified positively that they heard no such signals, is not generally regarded as negative evidence in the sense that it is the testimony of witnesses who did not know whether a signal was given or not.17 The fact that a witness was not giving his direct attention at the time as to whether signals were given when a train approached a road crossing, will not destroy the value of his testimony if he was present at the crossing, was conscious, and in the exercise of his ordinary senses, and testifies positively that he heard no such signals. 18 Thus, it has been held that the negative testimony of three witnesses, but one of whom states that he looked and listened, that they heard no signals given by a train approaching a crossing, has been held sufficient to justify a finding that no signals were given, as against the positive testimony of nine witnesses that the bell was rung and the whistle sounded, where the latter witnesses were employés of the defendant.19 The evidence of the 15 Murray v. Downing, 1 Cranch (C. C.) 151; Jenkinson v. State, 5 Blackf. (Ind.) 465; Vogel v. Gruaz, 110 U. S. 311; s. c. 4 Sup. Ct. Rep. 112. See also, 1 Elliott Ev., § 623, et seq. 18 Davenport Co. v. Pennsylvania R. Co., 166 Pa. St. 480; s. c. 36 W. N. C. (Pa.) 132; 31 Atl. Rep. 245. "Ensley R. Co. v. Chewning, 93 Ala. 24; s. c. 9 South. Rep. 458; St. Louis &c. R. Co. v. Odum, 52 Ill. App. 519; s. c. aff'd, 156 Ill. 78; 40 N. E. Rep. 559; Chicago &c. R. Co. v. Dillon, 123 Ill. 570; s. c. 13 West. Rep. 286; 15 N. E. Rep. 181; West Chicago St. R. Co. v. Mueller, 165 Ill. 499; s. c. 46 N. E. Rep. 373; aff'g s. c. 64 Ill. App. 601; 1 Chic. L. J. Wkly. 355; McMarshall v. Chicago &c. R. Co., 80 Iowa 757; s. c. 45 N. W. Rep. 1065; Hendricken v. Meadows, 154 Mass. 599; s. c. 28 N. E. Rep. 1054; Moran v. Eastern R. Co., 48 Minn. 46; s. c. 50 N. W. Rep. 930; State v. Kansas City &c. R. Co., 70 Mo. App. 634; Lake Shore &c. R. Co. v. Shade, 15 Ohio C. C. 424; Holden v. Pennsylvania R. Co., 7 Kulp (Pa.) 52; Galveston &c. R. Co. v. Garteiser, 9 Tex. Civ. App. 456; s. c. 29 S. W. Rep. 939. Where sir witnesses testify that they heard no bell or whistle until the danger whistles were sounded close by the railroad crossing; and all were in such positions that they might easily have heard if the signals had been given; and three of them were riding at great risk to their lives, if they failed to notice such signals, -such evidence is sufficient to go to the jury upon the question whether the bell was rung or the whistle sounded as required by law: Menard v. Boston &c. R. Co., 150 Mass. 386; s. c. 23 N. E. Rep. 214. Negative evidence by witnesses who were present at the time of an accident. that it was dark and that they saw no light or flagman on the train which ran over and killed the plaintiff's intestate, is admissible: nell v. Raleigh &c. R. Co.. 122 N. C. 832; s. c. 29 S. E. Rep. 953. Pur 15 McCormick v. Kansas City &c. R. Co., 50 Mo. App. 109. 19 Durkee v. Delaware &c. Canal |