Hinckley v. Inhabitants of Barnstable

| Mass. | Jan 15, 1872

Chapman, C. J.

The cases of Raymond v. Lowell, 6 Cush. 524, 532, and Packard v. New Bedford, 9 Allen, 200, do not decide that such evidence as was offered and excluded was admissible as tending to prove that the way was safe and convenient for travellers at the place of the accident. The objection to such evidence is that it is not pertinent to this issue. The issue relates to the condition of the way at the place and the time of the accident. Accordingly it is held that evidence that accidents or difficulties had occurred at the same place, but at a different time, is inadmissible, because it raises a collateral issue. Collins v. Dorchester, 6 Cush. 396. Aldrich v. Pelham, 1 Gray, 510. Robinson v. Fitchburg & Worcester Railroad Co. 7 Gray, 92. Evidence as to the condition of ways in other places in the county, and the practice of towns in respect to them, relates also to collateral matters; and the practice of a town may vary widely from the practice of keeping the ways safe and convenient. Evidence of this character is quite unlike such evidence as was held to be admissible in Gregory v. Adams, 14 Gray, 242, 248, tending to show what condition of the way was required by the population and business to be accommodated by it.

On the question whether the plaintiff used due care, the evi dence was that for a year previous to the accident she had lived very near the place, and knew it familiarly in the night as well as in the daytime, and -therefore that she had all the knowledge that was necessary to lay upon her the obligation to use due care. But there was not evidence tending to show that she had any knowledge of the places in the county to which the rejected evidence applied. Therefore the rejected evidence was wholly immaterial on that point.

Exceptions overruled.