§ 7888. Malpractice of Physicians, Surgeons, Dentists, and Attorneys. The incompetency of a physician is not to be established by proof of particular acts of negligent practice. His general reputation is alone relevant, and can be proved only by persons knowing such reputation in the community where he is engaged in practice.125 Evidence of good character is clearly inadmissible in actions for malpractice, as it has no tendency to show that proper care and skill were exercised in the treatment of the complaining party.126 In an action for dental malpractice, where the defendant introduced evidence of his skill and learning, evidence was held admissible to show that in an examination a year before the injury, he was unable to answer questions asked him in anatomy, physiology and chemistry, or explain the functions and position of the superior and inferior maxillary bones, or state the number of bones in the skull, or name the nerves in the head or face.127 A case is found holding that, where it is not practicable for the plaintiff to state what he was told to do, he may state in general terms that he complied with the instructions given him by the defendant in regard to the treatment of the injury, and then relate the particulars of what he did.125 Evidence of the physical condition of the plaintiff at the time of the trial, though occurring two or three years after undergoing the treatment complained of, is competent when it is shown that the condition is the result of the injury in question, and that the injuries are permanent.129 In an action against a solicitor for negligence in not taking the proofs of the witnesses before trial, the witnesses may testify as to what evidence they would have given if proofs had been taken.130 § 7889. Dangerous Premises.-On the question of notice of the defective condition of premises, it has been held proper to show, among other things, the existence of like defects in the vicinity of the defect causing the injury;131 that other similar buildings had previously fallen; 132 that the city authorities had notified the owner of the prem ises of their dangerous character and ordered them pulled down;1 125 Lacy v. Kossuth Co., 106 Iowa 16; s. c. 75 N. W. Rep. 689. 126 Smith v. Stump, 12 Ind. App. 359; s. c. 40 N. E. Rep. 279; Degnan v. Ransom, 83 Hun (N. Y.) 267; s. c. 64 N. Y. St. Rep. 788; 31 N. Y. Supp. 966. 127 Wilkins v. Ferrell, 10 Tex. Civ. App. 231; s. c. 30 S. W. Rep. 450. 128 Mucci v. Houghton, 89 Iowa 608; s. c. 57 N. W. Rep. 305. 120 Hewitt v. Eisenbart, 36 Neb. 794; s. c. 55 N. W. Rep. 252. 130 Manley v. Palache, 73 L. T. 98. .133 131 Propsom v. Leathem, 80 Wis. 608; s. c. 50 N. W. Rep. 586. But see Louisville &c. R. Co. v. Henry, 19 Ky. L. Rep. 1783; s. c. 44 S. W. Rep. 428; Tucker v. Champaign Co. Agricultural Board, 52 Ill. App. 316; s. c. aff'd, 154 Ill. 593; 39 N. E. Rep. 563. 132 Waterhouse v. Joseph Schlitz Brewing Co., 16 S. D. 592; s. c. 94 N. W. Rep. 587. 133 Curd v. Wing, 115 Ga. 371; s. c. 41 S. E. Rep. 580. that other persons came near falling into the same opening or elevator shaft.134 In the latter case it was held that a witness familiar with the premises could state whether or not there was sufficient light in the hallway at the time of day to enable one coming in from the street to distinguish without special examination whether the elevator was standing in the shaft.135 In an action for personal injuries caused by the fall of a building, a description of the materials and methods usually employed in constructing buildings similar to the one involved has been held relevant and material.136 In the case of injuries from the dangerous condition of premises upon which the injured party was impliedly invited, evidence of the usual custom with respect to the parts of the premises into which persons were admitted for the purposes for which the invitation was extended, is admissible to show the extent of the implied invitation.137 Evidence that defendant had the city's consent to maintain an opening in a sidewalk is admissible under a denial of allegations in the complaint that such opening was "wrongfully and unlawfully" maintained and that plaintiff sustained her injury from the "wrongful" acts of defendant.1 138 § 7890. Defects in Bridges and Approaches.-On the question of notice to a county or municipal corporation of the condition of a bridge it may be shown that the defect had existed for such length of time that the defendant, by the exercise of reasonable diligence, could have known of its existence. 139 Clearly, evidence of the condition of roads and streams at other places is immaterial upon the question of the condition of the approach to a bridge at which an accident occurred.140 In like manner, where a bridge broke down while a heavy traction engine was being run over it, evidence that other traction engines had been run over other bridges in the county was held inadmissible, the bridge in question having been constructed before traction engines were known or used.141 On the question whether the owner of a traction engine was imputable with contributory negligence in crossing a bridge, evidence that a county supervisor had informed him that the bridge was all right is admissible to show due diligence on the part of the plaintiff.112 134 Colorado Mortg. &c. Co. v. Rees, 21 Colo. 435; s. c. 42 Pac. Rep. 42. 135 Colorado Mortg. &c. Co. v. Rees, 21 Colo. 435; s. c. 42 Pac. Rep. 42. 136 Waterhouse v. Joseph Schlitz Brewing Co., 16 S. D. 592; s. c. 94 N. W. Rep. 587. 137 Phillips v. Burlington Library Co., 55 N. J. L. 307; s. c. 27 Atl. Rep. 478. 129 Kuechenmeister v. Brown, 13 Misc. (N. Y.) 139; s. c. 34 N. Y. 139 Faulk v. Iowa Co., 103 Iowa 442; s. c. 72 N. W. Rep. 757. 140 Jessup v. Osceola Co., 92 Iowa 178; s. c. 60 N. W. Rep. 485. 141 Vermillion Co. v. Chipps, 131 Ind. 56; s. c. 16 L. R. A. 228; 29 N. E. Rep. 1066. 142 Pearson v. Spartanburg Co., 51 S. C. 480; s. c. 29 S. E. Rep. 193. § 7891. Negligence in Condition of Electric Wires and Apparatus. -On the issue of notice of a generally defective condition of wires to a company engaged in the business of furnishing electricity, evidence of frequent prior breaks in the wires, 143 or that the wires had been found overcharged on numerous prior occasions,144 is admissible. On the question whether an injury was caused by an electric shock it is competent to show that another person received an electric shock at the same time and from defendant's wires.145 As bearing on the ques-tion of the condition of wires at the time injuries were inflicted by broken electric wires, it is proper to show the condition after the accident complained of. Thus, it has been permitted the plaintiff to show that the wire was patched and was brittle and that there was no guard wire several months after the accident.148 So, testimony showing crosses of electric wires at other places, not connected with the circuit upon which an employé was working when he received a shock, and the effect and causes of such crosses, is admissible, where the theory of the prosecution is that the shock was caused by the contact of the dead wires on one circuit with live wires on another, as tending to show that the crosses were caused by the method of stringing the wires used on the circuit on which he was working, which by their sagging were brought in contact so as to wear off the insulation and leave the wires bare.147 Similarly, where the injury resulted from the falling of an electric light pole belonging to a city, occasioned by its having be come rotten beneath the surface of the ground, evidence of the condition of other poles which had been in the ground the same length of time, but were taken up after the accident and exposed to the atmosphere before the examination, was held competent to show the general condition of the poles in use.148 In actions for injuries caused by touching charged wires, evidence of the custom of the best electrical companies in respect to the manner of detecting defects and irregularities in their lines is admissible where shown to be the best known method.141 But plaintiff may not prove that the wiring was not properly done by evidence that it was not done in accordance with the rules of various boards of fire underwriters and electric light companies. Whether the 143 Richmond R. &c. Co. v. Bowles, 92 Va. 738; s. c. 2 Va. L. Reg. 14; 24 S. E. Rep. 388. 144 East Tennessee Teleph. Co. v. Sims, 99 Ky. 404; s. c. 36 S. W. Rep. 171; 18 Ky. L. Rep. 761, 764; 38 S. W. Rep. 131. 145 Black v. Milwaukee St. R. Co., 89 Wis. 371; s. c. 27 L. R. A. 365; 71 N. W. Rep. 1101. Co. V. 146 Western Union Tel. Thorn, 64 Fed. Rep. 287; s. c. 48 Am. & Eng. Corp. Cas. 411; 12 C. 147 Kraatz v. Brush Electric Light Co., 82 Mich. 457; s. c. 46 N. W. Rep. 787. 149 Emporia v. Kowalski, 66 Kan. 64; s. c. 71 Pac. Rep. 232. 149 East Tennessee Telephone Co. v. Sims, 99 Ky. 404; s. c. 18 Ky. L. Rep. 761, 764; 36 S. W. Rep. 171; 38 S. W. Rep. 131. work was properly done is to be proved by the evidence of persons familiar with the manner of doing it, and not by rules of other companies which are neither statements of fact nor sworn testimony of opinion.150 Evidence that notice that a wire was down was given to an electrical company prior to an accident from a fallen wire, is admissible upon the issue of negligence in omitting to exercise due care in building the line and in failing to maintain it in good repair thereafter. A finding that plaintiff's intestate was not negligent in not wearing gloves while trimming an electric lamp in the morning is sustained by evidence that the gloves are not worn when trimming lamps in the morning, when wires are dead, but are used at night on live wires, and that it would be impossible to do the amount of work required of him if he used gloves.152 131 § 7892. Injuries by Animals.153-On the question of the owner's knowledge of the vicious propensity of a dog, it may be shown that he kept the dog muzzled and chained.154 And as tending to prove a fired habit, evidence is admissible to show subsequent manifestations of a similar disposition where it has first been shown that the animal had shown such a disposition before the infliction of the injury.155 Where it is disputed that a dog attacked a team on a particular occasion, evidence is admissible to prove that the dog has a habit of attacking passing teams.156 But the particular animal whose propensity it is sought to establish must be clearly identified. Thus, it was held that the vicious disposition of a mule could not be established by proof that on one occasion, the time and circumstances of which were not given, another person was kicked by one of the team to which the mule in question belonged, the particular mule not being identified.157 In this 150 Dechert v. Municipal Electric Light Co., 39 App. Div. (N. Y.) 490; s. c. 57 N. Y. Supp. 225; distinguishing Abel v. Delaware &c. Co., 103 N. Y. 581; s. c. 57 Am. Rep. 773. 151 Denver Consol. &c. Co. v. Simpson, 21 Colo. 371; s. c. 31 L. R. A. 566; 41 Pac. Rep. 499. 152 Harroun V. Brush Electric Light Co., 12 App. Div. (N. Y.) 126; s. c. 42 N. Y. Supp. 716; appeal dismissed, 152 N. Y. 212; s. c. 38 L. R. A. 615; 46 N. E. Rep. 291. 153 Proof of scienter generally, see Vol. I, § 872. On the proposition that evidence of general reputation of the animal is admissible, not to prove the fact of viciousness, but as tending to support the inference of knowledge on the part of the owner of the propensity of the animal, see Fake v. Addicks, 45 Minn. 37; s. c. 47 N. W. Rep. 450; Short v. Bohle, 64 Mo. App. 242; s. c. 2 Mo. App. Repr. 1103. But see Norris v. Warner, 59 Ill. App. 300; Robinson v. Marino, 3 Wash. 434; s. c. 28 Pac. Rep. 752 (particular instances of manifestations of propensity admissible). 154 Hanke v. Friederich, 140 N. Y. 224; s. c. 55 N. Y. St. Rep. 411; 35 N. E. Rep. 487. 155 Kennon v. Gilmer, 131 U. S. 22; s. c. 33 L. ed. 110; rev'g s. c. 5 Mont. 257; 51 Am. Rep. 45, but on other grounds. See also, Dover v. Winchester, 70 Vt. 418; s. c. 41 Atl. Rep. 445. 156 Broderick V. Higginson, 169 Mass. 482; s. c. 48 N. E. Rep. 269. 157 Weigand v. Atlantic Ref. Co., 189 Pa. St. 248; s. c. 29 Pitts. L. J. (N. S.) 337; 42 Atl. Rep. 132. case it was also held that the owner was not charged with notice of the vicious disposition of the mule by reason of having been told by a witness that the team to which the mule belonged was vicious, there being no offer to show that this statement was anything more than an opinion unaccompanied by the facts upon which it was based.158 In an action for injuries to a horse caused by a runaway team which the defendant is alleged to have left unhitched in a negligent manner, evidence that other teamsters were accustomed to leave horses at the same place in the same manner is not admissible in the absence of proof that they acted with ordinary care in so doing.159 $7893. Injuries Caused by Reckless Driving.-In an action for injuries caused by the reckless or negligent driving of the defendant's team past that of the plaintiff on the highway, the plaintiff may show the disposition of the defendant's team as to racing, that it had been trained to pass other teams with great speed, and that it had acted that way both before and shortly after the accident.160 In like manner, it may be shown that the defendant was training his horse in the street for the races, as bearing on the fact of the speed at which he was driving at the time he drove over a child in the street.161 156 Weigand v. Atlantic Ref. Co., 189 Pa. St. 248; s. c. 29 Pitts. L. J. (N. S.) 337; 42 Atl. Rep. 132. 108 Bassett v. Shares, 63 Conn. 39; s. c. 27 Atl. Rep. 421. 160 Schaefer v. Osterbrink, 67 Wis. 495. 181 Trow v. Thomas, 70 Vt. 580; s. c. 41 Atl. Rep. 652. |