175 Mo. App. 441 | Mo. Ct. App. | 1913
This lawsuit grows out of the fact that plaintiff lost a valuable mare by reason of a collision between such animal while being ridden by his son and a one-horse buggy being driven by defendant on the public road leading north from Stotts City, in Lawrence county, Missouri. This road is one of the “special roads” of the county, being sixty feet wide, in splendid condition and much used and traveled by the public. It was on this highway that plaintiff’s mare was injured on the night of March 4, 1913. The night was a very dark one and the defendant, who had been out on his farm, was returning home, traveling south on this road. He was driving a small, gray pony, of uncertain age, hitched to a rather dilapidated buggy, without a top, and using ropes for lines. George Hodges, the son of plaintiff, about twenty years of age, who had been to Stotts City, was riding the mare in question, a large, fast pacing animal, and was returning to his father’s home and traveling north on this same road. These two individuals, thus traveling,
The plaintiff’s petition charged that while his son was riding along the road in a careful manner, the defendant caused this injury to his mare by negligently driving his buggy and horse at a high rate of speed, thereby violently striking and running against his mare. The defendant by his answer charged that while he was with due care driving his horse and buggy along this road, the plaintiff’s son caused the injury by riding the mare at a rapid rate of speed on this highway and violently running her upon and- against his horse and buggy. The answer is treated as containing a plea of contributory negligence but that is hardly correct. Each party charged the other with the same negligence and each charged that the negligence of the other was the sole cause of the injury. Neither party, either' in his pleadings or evidence, admits or even intimates that there was any concurrence of negligence but each maintains and the evidence of each shows that the other was alone negli
The main point relied on for reversal, and which is not without much difficulty, arises on the action of the trial court in permitting the defendant to prove, first by cross-examination of plaintiff’s son, who rode the mare at the time of the accident, and afterward by independent witnesses, that the said son was accustomed to and had the habit of riding this mare along this road between his home and town at a rapid rate of speed. In this connection it was also shown, without objection, that the animal was a fast pacer of racing stock and had been in training on a race track on plaintiff’s farm. Stated in a more general way, the question presented is whether, in order to prove that a person did a particular act amounting to negligence only and which is without moral turpitude or evil intent, it is competent to prove that such person had a habit or custom of doing such particular act.
While many kindred propositions have been before the courts of this State, learned counsel have not cited nor have we found a case in this State involving this precise question. The case nearest in point is that of Calcaterra v. Iovaldi, 123 Mo. App. 347, 100 S. W. 675, where Judge Goode stated that the question was one of great difficulty, and, placing doubt on the correctness of the ruling, held that where a child was hurt by a barrel falling from defendant’s second story window to the sidewalk, it was not competent to show negligence of defendant by proving that on other occasions barrels had fallen from the same window. The reasons assigned for rejecting the evidence are that it was not shown whether defendant was in any way connected with such act and that it would “ raise collateral issues as to whether the incidents related actually occurred or not, and, if so, under what circumstances, and to spring a surprise on appel
It will be seen that what the court did in that case was to reject proof of similar specific- acts rather than.
Many authorities will be found upholding the admissibility of evidence of the particular kind now under discussion. In 1 Wigmore on Evidence, sec. 92, the author says: “Of the probative value of a person’s habit or custom, as showing the doing on a specific occasion of the act which is the subject of the habit or custom, there can be no doubt. Every day’s experience and reasoning make it clear enough. ’ ’ Then, after stating some exceptions, the author adds: “Subject to the foregoing distinctions, the admissibility of a person’s habit, usage, or custom as evidence that he did or did not do the act in question may be said to be universally conceded.” [See also section 97,. dealing with the admissibility of “habit of negligence.”] “The weight of authority favors the view that where the direct evidence shows that an act was - done or omitted, it is competent to prove that a custom existed prior to that time to do or not to do such act, as such evidence legitimately tends to uphold the theory of one of the contending parties.” [Gillett’s Indirect and Collateral Evidence, sec. 68.] The case of State v. Railroad, 52 N. H. 528, 529, is a leading-case on that point. That was a case of personal in
Several of the cases cited by appellant as supporting the proposition that this character of evidence is
The courts of Illinois seem to have adopted the rule that such evidence is admissible only in the absence of any direct evidence as to how the accident occurred. [City of Salem v. Webster, 192 Ill. 369, 61 N. E. 323 ; Railroad v. Clark, 108 Ill. 113 ; Quincy Gas. Co. v. Clark, 109 Ill. App. 20 ; Cox v. Railroad, 92 Ill. App. 15.] As this is not a question of resorting to secondary evidence, we fail to see the force of this distinction. If the evidence has probative force and is otherwise admissible, then the fact that there is stronger and more direct evidence should not warrant its rejection. The Supreme Court of Georgia, when confronted with this question in Savannah R. Co. v. Flanagan, 9 S. E. 471, 472, ruled thus: “The habitual high speed of this same engine, when run previously by the same engineer, on the same street, was of doubtful admissibility. The authorities upon the question conflict. For the 'affirmative might be cited State v. Railroad Co., 58 N. H. 410 ; State v. Railroad Co., 52 N. H. 528 ; Shaber v. Railroad Co., 28 Minn. 103, 9 N. W. 575 ; Randall v. Telegraph Co., 54 Wis. 140, 11 N. W. 419 ; Craven v. Railroad Co., 72 Cal. 345, 13 Pac. 878 ; Henry v. Railroad Co., 50 Cal. 176 ; Sheldon v. Railroad Co.,
There is no doubt that the admissibility of this-character of evidence should be restricted and kept within narrow limits. The principal objection to its admissibility is that it raises collateral issues and detracts the attention of the jury from the real point at issue, to-wit, whether the party charged with negligence was negligent at the particular time in question, and that it raises issues which the opposite party will not be prepared to meet. This objection is largely avoided when the evidence is confined to the general habit of the party with reference to the particular act in issue. The jury should in such cases be made to understand the purpose and scope of the evidence. We think this was done in this case. The learned trial judge, when ruling on this question, said: “Gentlemen, the evidence, ap I understand it, it seems there is a sharp contest over the cause of this collision. Contributory negligence is pleaded, and the contention is that one of the parties caused the injury, and the contention of the other side is that the other one. There seems to have been no eyewitness except the two men. That may throw some light. The manner in which the two men drove their buggies may throw some light to the jury as to who did the negligent acts that day, that brought on a collision, and I am going to let it go to the jury for what it is worth. Under the law and the circumstances they will have to determine the truthful
The defendant was verging on still more dangerous ground on his cross-examination of plaintiff’s son who was the rider of the injured mare, as to some specific incidents of fast riding — nearly running over a boy— and objection thereto should have been sustained. But as the boy explained the one incident mentioned so as to show him entirely blameless and denied other incidents inquired about, and no further evidence was offered as to these incidents, we will not hold same reversible error.
We are also convinced that none of the foregoing evidence so prejudiced the jury as to warrant a reversal, even if improperly admitted. The other facts of the case are such that a different result could have hardly been reached by the jury. The plaintiff’s son was ashed on cross-examination and denied that, at the time and in the very act of starting from town on this occasion, he stated that he must go home in a hurry on
*456 “Now, do thy speedy utmost, Meg, And win the key-stane of the brig; There at them thou thy tail may toss, A running stream they darena cross. But' ere the key-stane she could make, The fient a tail she had to shake. ’ ’
There is no question and the physical facts showed that defendant and his buggy were wrecked at a point some twenty to thirty feet north of the culvert on the west side of the road, where defendant says the horse struck him. The boy’s evidence was that he stopped his horse just south of the culvert on the east side of the road and that the buggy struck his. horse at that point. He admits, however, that when he got up and went to defendant’s buggy it was twenty to thirty feet north of the culvert. It would seem impossible that if the buggy going at a rapid rate struck the horse standing still south of the culvert that the recoil could have driven the horse and buggy backward some thirty to forty feet. It is proper to here state that the record shows that defendant’s buggy wheel skidded two or three feet to the northwest and not the southwest as claimed by appellant. It was also shown that defendant’s horse was a worn-out, farm pony, that could hardly be whipped out of a walk. When we take into consideration the facts of this case, including the different “mounts” of these parties, we feel that a retrial could not result different from this one, and that the judgment should be and is affirmed.