3 A.2d 647 | N.H. | 1939
The trial court's statement that the evidence excepted to bore on the defendant's due care was broad and ambiguous in respect to any particular issue of care. It follows that if the evidence was admissible on any issue of liability, the exception cannot be sustained, since the plaintiffs made no request for its limitation of use. Morris v. Railroad,
At the trial the plaintiffs' sole objection to the evidence was that it was irrelevant on the issue of testing the brakes, because there was direct evidence of the test and its manner. They now contend that the evidence of the rule or custom to test a car before renting it was unrelated to the evidence of the test claimed to be made. They say that it did not tend to show a habit of the agent to test. If it be assumed that this point may now be raised, there was evidence that the agent's engagement to rent cars had covered a substantial period of time, and it is a reasonable inference that the rule or practice established by the defendant was known to him although he did not *15 testify to such effect. The procedure which the defendant testified was in force was, as the fair inference from his testimony, employed by all of his agents and servants who had the assignment of renting cars, and customarily observed by them. There was no evidence that the rule was not an enforced one or that the practice was indifferently followed. It follows that it might be found that the agent made his test because in knowledge of the rule it was his habit to test.
As evidence to show why the test was made, it was competent. "When the question is whether a certain act was done, evidence of a motive for doing or not doing it should be received." Russo v. Slawsby,
More broadly the rule is stated in Guertin v. Hudson,
The axiom that "a man is more likely to do or not to do a thing, or to do it or not to do it in a particular way, as he is in the habit of doing or not doing it", (State v. Railroad,
While the evidence although relevant may be excluded if it may be found in a particular case to be of no aid in determining the issue to which it relates, no such finding was made here; on the contrary, the implication is that the evidence was found, as it well might be, to be of probable assistance.
The case of State v. Currier,
Exception overruled.
BRANCH, J., was absent: the others concurred.