8 Ala. 96 | Ala. | 1845
The question to be determined, is, whether the evidence excluded by the Court, was relevant. It appears that Green was the owner of a ferry over the Coosa river, which was managed by Elliott, for a share of the profits. It also appears, that during high water, when the ferry was impassable, Elliott was in the habit of taking the boat, and the hand who assisted him at the ferry, and carrying passengers over a creek, which emptied into the river above the ferry, to enable them to cross the river at a different point. In an attempt to carry the plaintiff’s waggon across the creek, it was lost, with its lading, and the effort at the trial, was,to fix the liability on Green. This was attempted to be done by proving facts, from which the participation of Green, in the profits, might be inferred. Thus, it was proved, that Green lived, within a quarter of a mile of the ferry_ that Elliott had frequently before transported travellers across the 'creek, during high water, and had done so about a year after-wards. The evidence of the act subsequently to the loss, was objected to, and excluded by the Court, and this is the only question presented upon the record for revision.
Presumptive evidence, is founded upon'the connection, which is found by experience, to exist, between the facts, which are wav
We are not prepared to say, that the evidence was admissible upon this theory. Presumptions which may properly be made, are only justifiable, where they are the natural, or necessary consequence of the acts proved, and exclude every other reasonable hypothesis. Yet it is by no means unreasonable to suppose, that Green, may have allowed his ferryman the use of his boat, and hand, as a gratuity, or perquisite, upon these extraordinary occasions. The conclusion is not therefore sufficiently certain, to be the basis of human conduct, either in the jury box, or in the ordinary transactions of common life. And in this view of the case, the evidence of the acts of Gi’een, both before and after the act, which occasioned the loss, would be alike inadmissible.
There is, however, one aspect of the case, upon which the testimony should have been received. It appears that Green, and Elliott, were jointly interested in the profits of the ferry, upon the Coosa, and to prove that this custom of transporting passengers and property over the creek, was a mere appendage of the principal ferry, the evidence was clearly admissible. When a fact, which in its nature is continuous, is proved to exist, its existence subsequently, may be presumed. Thus when a partnership is once proved to exist, its continuance will be presumed, until the contrary is shown, and a fortiori, where a partnership is proved to exist at two different periods of time, it will be presumed to have existed during the intervening period. [3 Starkie’s Ev. 1077.]
The fact that the ferry over the creek, during high water, was but a temporary removal of the ferry over the Coosa, could, like any other fact,be proved by circumstantial evidence, and any act, tending to establish that fact, whether it happened before, or after, the act which occasioned the loss, would be legitimate testimony; the fact to be proved being continuous in its nature, and having no necessary, or immediate connection with the point of
What influence the testimony excluded would have had upon the jury, it is not our province to determine; it may be in itself very weak, and not entitled to much consideration, as it might seem, that if the previous acts proved, did not establish the unity of the two ferries, the single subsequent act, would not exert any influence. This, however, is a speculation we cannot indulge in; if the testimony was relevant, it was improperly excluded. Such we have seen is the fact, and the judgment must be therefore reversed, and the cause remanded.