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$7879. Compulsory Examination of Injured Person.-This subject has received consideration elsewhere. It would seem proper to refuse the order where the injured person is willing to be examined by competent and disinterested men without such an order.92 In a State where such an examination may be compelled, the order should not be denied merely because the plaintiff is a young woman of a nervous temperament and of delicate and refined feelings, where it appears that the examinaiton will not involve any ill consequences to her and that she has several times sumbitted so to be examined by her attending physician without any ill results.93 The examination may be ordered to be taken at the home of the plaintiff in another State. In Nebraska, a District Judge has no jurisdiction in chambers outside the county in which the cause is pending, to make an order requiring a physical examination by a board of physicians appointed by him for that purpose. But such an order will not work a reversal where the plaintiff has acquiesced therein by the selection of a physician to act on the board of examiners and submitted to the examination without objection and allowed the testimony of the physician to be given without raising the question of the judge's want of power to make the order.96

95

94

§ 7880. Exhibition of Parts of Body Amputated or Removed.—It is the undoubted rule that the exhibition of an injured member of the body to the jury, where necessary to an understanding of the nature of the injury, is proper." The rule extends to and allows the exhibition to the jury of amputated limbs or members, where sufficiently identified." Thus, in an action for negligently shooting a person, resulting

91 See ante, § 7276. See also, Peoria &c. R. Co. v. Rice, 144 Ill. 227; s. c. 33 N. E. Rep. 951 (court has no power to compel plaintiff to submit to examination).

92 Gulf &c. R. Co. v. Norfleet, 78 Tex. 321; s. c. 45 Am. & Eng. R. Cas. 207; 14 S. W. Rep. 703.

93 Alabama &c. R. Co. v. Hill, 90 Ala. 71; s. c. 9 L. R. A. 442; 8 South. Rep. 90; 44 Am. & Eng. R. Cas. 441; 31 Cent. L. J. 376.

St. Louis &c. R. Co. v. Dobbins, 60 Ark. 481, 486; s. c. 30 S. W. Rep. 887; 31 S. W. Rep. 147.

25 Ellsworth v. Fairbury, 41 Neb. 881; s. c. 60 N. W. Rep. 336.

Ellsworth v. Fairbury, 41 Neb. 881; s. c. 60 N. W. Rep. 336.

* See ante, § 7277; Langworthy v. Green Twp., 95 Mich. 93; s. c. 54

N. W. Rep. 697; Hall v. Manson, 99 Iowa 698; s. c. 34 L. R. A. 207; 68 N. W. Rep. 922; Topeka v. Bradshaw, 5 Kan. App. 879; s. c. 48 Pac. Rep. 751. The plaintiff, in an action for personal injuries consisting of a rupture, may, in the discretion of the court, be permitted to strip his person and show the rupture to the jury: Chicago &c. R. Co. v. Clausen, 70 Ill. App. 550; s. c. aff'd, 173 Ill. 100; 50 N. E. Rep. 680.

98 Seltzer v. Saxton, 71 Ill. App. 229; Newport News &c. R. Co. v. Carroll, 31 S. W. Rep. 132; s. c. 17 Ky. L. Rep. 374 (no off. rep.); Williams v. Nally, 20 Ky. L. Rep. 244; s. c. 45 S. W. Rep. 874 (no off. rep.).

99 Turner v. State, 89 Tenn. 547.

in loss of his eyesight, an eye that had been removed, and the bullet and a piece of the bone detached in extracting the bullet, were held admissible in evidence on the issue whether the condition of the remaining eye was caused by the injury to that removed, and that the bullet lodged where it was found.100 But where such exhibition is not essential or necessary to enable the jury to better understand the matter, or where the jury may be led to consider irrelevant matters on account of the evidence, then such evidence should be refused. Thus, it has been held that the amputated foot of a child preserved in alcohol could not be produced before the jury to show the size of the child at the time the injuries were inflicted, where she was present in court at the trial and there was no controversy as to whether the amputation was properly performed.101

§ 7881. Injured Person may Wear Clothes Worn at Time Injury was Received. In an action for personal injuries caused by the plaintiff's clothing catching in defective machinery, it is not an error to allow the plaintiff to wear and exhibit to the jury the clothes worn by him at the time of receiving his injuries to explain the manner of the accident and enable the jury to better understand the evidence.1

102

§ 7882. Customs and Usages.—A negligent act, clearly shown to be such, cannot be justified on the ground of custom or usage, and evidence of such custom or usage is not usually admissible for that purpose.103 Evidence that the person charged with negligence followed the custom of other persons in the same line of business will be received on the question whether he acted as a reasonably careful man would have acted under the circumstances of the particular case,104

100 Seltzer v. Saxton, 71 Ill. App. 229.

101 Rost v. Brooklyn Heights R. Co., 10 App. Div. (N. Y.) 477; s. c. 41 N. Y. Supp. 1069.

102 Tudor Iron Works v. Weber, 31 Ill. App. 306.

103 Chicago &c. R. Co. v. Carpenter, 56 Fed. Rep. 451; s. c. 12 U. S. App. 392; Central R. Co. v. De Bray, 71 Ga. 406; Citizens' Nat. Bank V. Third Nat. Bank, 19 Ind. App. 69; s. c. 49 N. E. Rep. 171; Mason v. Missouri Pac. R. Co., 27 Kan. 83; Thompson v. Boston &c. R. Co., 153 Mass. 391; s. c. 26 N. E. Rep. 1070; Crocker v. Schureman, 7 Mo. App. 358; Cleveland v. New Jersey &c. R. Co., 5 Hun (N. Y.) 523; Eppendorf v. Brooklyn City &c. R. Co., 69 N. Y. 195; Wright v. Boller, 42 Hun

(N. Y.) 77; Temperance Hall Assn. v. Giles, 33 N. J. L. 260; McNerney v. Reading, 150 Pa. St. 611; s. c. 25 Atl. Rep. 57; Lawrence v. Hudson, 12 Heisk. (Tenn.) 671.

10 Fuller v. Naugatuck R. Co., 21 Conn. 557; Chicago &c. R. Co. v. Carpenter, 56 Fed. Rep. 451; s. C. 12 U. S. App. 392; Chicago &c. R. Co. v. Clark, 108 Ill. 113; Pennsylvania Co. v. McCormack, 131 Ind. 250; s. c. 30 N. E. Rep. 27; Cass v. Boston &c. R. Co., 14 Allen (Mass.) 448; Daley v. American Print. Co., 152 Mass. 581; s. c. 26 N. E. Rep. 135; Holly v. Boston Gas Light Co., 8 Gray (Mass.) 123; Maynard v. Buck, 100 Mass. 40; Armstrong v. Chicago &c. R. Co., 45 Minn. 85; s. c. 47 N. W. Rep. 459; Kelly v. Southern Minnesota R. Co., 28 Minn. 98;

if the custom, of itself, is not negligent and unsafe.105 For similar purposes, the failure to adopt the usual and customary precautions against danger may be shown.106 Thus, evidence as to the usual and ordinary distance of erecting tell-tales from a bridge has been held admissible upon the question of contributory negligence.107 So, it has been held proper to show that it was an order and custom of a railroad company to block all frogs, for the purpose of showing that the company conceded that unblocked frogs were dangerous.108 So, the failure to adopt a known and uniform usage among travellers in the management of loaded teams upon a steep part of a highway, has been held competent evidence of negligence by the plaintiff.109 Again, proof that an act charged to have been negligently done was done in an unusual manner is sometimes received to show that it was not necessary to do the act as it was done.110 Evidence of usage or custom is sometimes admitted for other purposes. Thus, for example, parol evidence of a usage or custom for conductors to make actual couplings and uncouplings of cars has been held admissible to explain the meaning of the word "assist," in a rule requiring freight-car conductors to assist in shifting and making up trains, where the evidence is conflicting as to whether they were required to make actual couplings, or merely to superintend and give the proper signals."

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§ 7883. Habits and Reputation.-Where the alleged negligent act is susceptible of direct proof, evidence that either the plaintiff or the defendant was negligent at other times, or evidence as to his habits of carefulness, is generally incompetent, as it raises a collateral question.112

s. c. 9 N. W. Rep. 588; Kolsti v. Minneapolis &c. R. Co., 32 Minn. 133; s. c. 19 N. W. Rep. 655; Prosser v. Montana &c. R. Co., 17 Mont. 372; s. c. 30 L. R. A. 814; 43 Pac. Rep. 81; Belleville Stone Co. v. Comben, 62 N. J. L. 353; s. c. 45 Atl. Rep. 1090; Houston &c. R. Co. v. Cowser, 57 Tex. 293; Grand Trunk R. Co. v. Richardson, 91 U. S. 454; Jochem v. Robinson, 72 Wis. 199; s. c. 39 N. W. Rep. 383.

105 Austin v. Chicago &c. R. Co., 93 Iowa 236; s. c. 61 N. W. Rep. 849; Douglass v. Chicago &c. R. Co., 100 Wis. 405; s. c. 76 N. W. Rep. 356.

100 McGrath v. New York &c. R. Co., 63 N. Y. 522; Casey v. New York &c. R. Co., 78 N. Y. 518; Pittsburgh &c. R. Co. v. Yundt, 78 Ind. 373.

107 Wallace v. Central Vermont R. Co., 138 N. Y. 302; s. c. 33 N. E. Rep. 1069; Boyce v. Wilbur Lumber

Co., 119 Wis. 642; s. c. 97 N. W. Rep. 563.

108 Coates v. Burlington &c. R. Co., 62 Iowa 486; s. c. 17 N. W. Rep. 760.

100 Aldrich v. Monroe, 60 N. H. 118; Shaber v. St. Paul &c. R. Co., 28 Minn. 103; s. c. 9 N. W. Rep. 575.

110 Steffenson v. Chicago &c. R. Co., 51 Minn. 531; s. c. 53 N. W. Rep. 800.

111 Memphis &c. R. Co. v. Graham, 94 Ala. 545; s. c. 10 South. Rep. 283.

112 Louisville &c. R. Co. v. McClish, 115 Fed. Rep. 268; Central R. &c. Co. v. Roach, 64 Ga. 635; Mayfield v. Railroad Co., 87 Ga. 374; Anglo-American Packing &c. Co. v. Baier, 20 Ill. App. 376; Gardner v. Chicago &c. R. Co., 17 Ill. App. 262; Gould v. Schermer, 101 Iowa 582; s. c. 70 N. W. Rep. 697; Aiken v. Holyoke St. R. Co., 184 Mass. 269;

For this reason, the genreal reputation of the injured person for care and prudence is inadmissible for or against him on the issue whether he was exercising due care at the time of the injury.113 Evidence of a particular habit is clearly objectionable where the injuries 'were not received as a result of the particular habit sought to be proved.114 The intoxication of either of the parties in any degree at the time of the accident for which suit is brought is a proper circumstance for the consideration of the jury;115 and since this fact is susceptible of proof by direct evidence, evidence of intoxication at other times either before or since the accident should be refused.116 For like reasons, evidence of the character and disposition of the plaintiff is immaterial,-as, for instance, evidence of former discharges from a

s. c. 68 N. E. Rep. 238; Whitney v. Gross, 140 Mass. 232; s. c. 1 N. E. Rep. 512; Dunham v. Rackliff, 71 Me. 345; Kingston v. Fort Wayne &c. R. Co., 112 Mich. 40; s. c. 70 N. W. Rep. 315; 74 N. W. Rep. 230; 40 L. R. A. 131; Kaillen v. Northwestern Bedding Co., 46 Minn. 187; s. c. 48 N. W. Rep. 779; McPherson v. St. Louis &c. R. Co., 97 Mo. 253; s. c. 10 S. W. Rep. 846; McCarragher. v. Rogers, 120 N. Y. 526; Schwanzer v. Brooklyn &c. R. Co., 18 App. Div. (N. Y.) 205; s. c. 45 N. Y. Supp. 889; Phifer v. Carolina &c. R. Co., 122 N. C. 940; s. c. 29 S. E. Rep. 578; Dyer v. Union R. Co., 25 R. I. 221; s. c. 55 Atl. Rep. 688; Mayton v. Sonnefield (Tex. Civ. App.), 48 S. W. Rep. 608. But see Parkinson v. Nashua &c. R. Co., 61 N. H. 416.

113 Atlanta &c. R. Co. v. Smith, 94 Ga. 107; Jolly v. Terre Haute Drawbridge Co., 9 Ind. 417; Adams V. Chicago &c. R. Co., 93 Iowa 565; Erb v. Popritz, 59 Kan. 264; s. c. 52 Pac. Rep. 264; Smith v. Middleton, 112 Ky. 588; s. c. 66 S. W. Rep. 388; 23 Ky. L. Rep. 2010; Baldwin v. Western R. Co., 4 Gray (Mass.) 333; McDonald v. Savoy, 110 Mass. 49; Tenney V. Tuttle, 1 Allen (Mass.) 185; Chase v. Maine &c. R. Co., 77 Me. 62; s. c. 52 Am. Rep. 744.

114 Georgia &c. R. Co. v. Evans, 87 Ga. 673; s. c. 13 S. E. Rep. 580; Chicago &c. R. Co. v. Anderson, 47 Ill. App. 91; Peoria &c. R. Co. v. Clayberg, 107 Ill. 644. Evidence that a boy injured by a train on account of a defect in the platform was in the habit of exposing him

self to danger is incompetent, where the proof is that on the occasion in question he had accompanied a passenger to the train, and had a right to be on the platform at the time he was injured: Louisville &c. R. Co. v. Berry, 88 Ky. 222; s. c. 10 Ky. L. Rep. 791; 10 S. W. Rep. 472.

115 Northern R. Co. v. Craft, 69 Fed. Rep. 124; s. c. 29 U. S. App. 687; 16 C. C. A. 175; Welty v. Indianapolis &c. R. Co., 105 Ind. 55; Buddenburg v. Charles P. Chouteau Transp. Co., 108 Mo. 394; Rhyner v. Menasha, 97 Wis. 523; s. c. 73 N. W. Rep. 41.

116 Townsend v. Briggs (Cal.), 32 Pac. Rep. 307 (no off. rep.); Dinsmoor v. Wolber, 85 Ill. App. 152; Alexander v. Humber, 86 Ky. 565;

S. c. 6 S. W. Rep. 453; Hill v. Snyder, 44 Mich. 318; Kingston v. Fort Wayne &c. R. Co., 112 Mich. 40; s. c. 4 Det. Leg. N. 1014; 74 N. W. Rep. 230; 40 L. R. A. 131; 9 Am. & Eng. R. Cas. (N. S.) 259; 3 Det. Leg. N. 842; Senecal v. Thousand Island Steamboat Co., 79 Hun (N. Y.) 574; s. c. 61 N. Y. St. Rep. 572; 29 N. Y. Supp. 884; Dewalt v. Houston &c. R. Co., 22 Tex. Civ. App. 403; s. c. 55 S. W. Rep. 334; Carter v. Seattle, 19 Wash. 597; s. c. 53 Pac. Rep. 1102 (reputation for sobriety incompetent as raising a collateral issue). But, in an action for personal injuries, in which it is alleged by defendant that plaintiff was injured because of drunkenness, evidence of his sober habits is admissible in his behalf: Gulf &c. R. Co. v. Gross (Tex. Civ. App.), 21 S. W. Rep. 186 (no off. rep.).

position,117 or that he had falsely represented a certain woman to be his wife,118 or whether he had saved anything out of his wages.119 The competency of a servant is not put in issue by an allegation that he conducted himself at the time of the accident in a negligent, careless, and unskillful manner, whereby the plaintiff was injured, and evidence thereof is inadmissible.120

§7884. Habits and Character of Independent Contractor.-Evidence as to the habits of an independent contractor employed to do blasting is admissible in an action against the employer for damages caused by careless blasting, to show that the contractor was not person to be trusted with such work, and to require the defendant to show that he had used the requisite care and diligence in ascertaining the character and capacity of such contractor before employing him.121

$7885. Youth as Reason for Failure to Call Witness.-In one case, evidence that the plaintiff's family consisted of his wife and two children, of seven and five years respectively, was held admissible to explain why no other member of the family but the wife was called as a witness to testify to the manifestations of the disease caused by an injury.122

$7886. Reason for Bringing Suit in Particular Jurisdiction may be Shown. The plaintiff in an action for personal injuries has been permitted to testify that he did not bring his action in a sister State where he lived and where the action might have been brought, because he might have been deprived therein of a right to a jury trial on the question of damages, where the defendant had gone into that question apparently to throw suspicion and doubt on the plaintiff's cause.123

$7887. Evidence Incidentally Tending to Show Other Negligence. -Testimony is admissible in an action for personal injuries caused by the negligence of others, to show the situation and surroundings at the time and place of the accident, though it incidentally tends to show other negligence also.124

117 Wimber v. Iowa &c. R. Co., 114 Iowa 551; s. c. 87 N. W. Rep. 505.

118 Wimber v. Iowa &c. R. Co., 114 Iowa 551; s. c. 87 N. W. Rep. 505.

119 Postal Tel. Cable Co. v. Hulsey, 115 Ala. 193; s. c. 22 South. Rep. 854.

120 American Strawboard Co. V. Smith, 94 Md. 19; s. c. 50 Atl. Rep. 414.

12 Berg v. Parsons, 90 Hun (N.

Y.) 267; s. c. 35 N. Y. Supp. 780; 70 N. Y. St. Rep. 284.

122 Southern Pac. Co. v. Rauh, 7 U. S. App. 84; s. c. 49 Fed. Rep. 696. 123 Merritt v. New York &c. R. Co., 162 Mass. 326; s. c. 38 N. E. Rep. 447.

124 Helbig v. Michigan &c. R. Co., 85 Mich. 359; s. c. 48 N. W. Rep. 589; Stone v. Poland, 58 Hun (N. Y.) 21; s. c. 33 N. Y. St. Rep. 437; 11 N. Y. Supp. 498.

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