123 Mass. 535 | Mass. | 1878
The fact that a horse driven by the plaintiff misbehaved at the time an injury was received, though such misbehavior contributed to the injury, does not necessarily preclude the party from recovering. The misbehavior may have been accidental, or from causes for which the plaintiff was under no responsibility. The misbehavior, to bar the plaintiff from recovering, must be either through the fault of the plaintiff, or by reason of a vice of the horse, for which the plaintiff is in law responsible. Whether or not it is a vice depends largely upon the question whether the misbehavior was only in a single instance, or occasional, depending upon other causes, or whether it was the habit of the horse. And, in order to establish the fact that the misbehavior was occasioned by the viciousness of the horse, it has been held to be competent to show that such misbehavior is habitual, and instances of misbehavior, as well after the injury as before, have been held competent to prove the habit. Todd v. Rowley, 8 Allen, 51. The limit of time within which such misbehavior may be proved must depend largely upon the discretion of the presiding judge. It is not, however, wholly within such discretion. It is the right of a party to prove such instances immediately before and immediately after; but when instances are offered so remote from the time of the injury as, in the opinion of the presiding judge, to mislead or distract the minds of the jury, he may in his discretion reject the evidence; and if, in the opinion of the court,
In this case, the evidence offered was not rejected because, in the opinion of the presiding judge, it was too remote, but was rejected as incompetent, without the exercise of any discretion upon the question of remoteness. It therefore is to be considered whether the evidence was in its nature competent and admissible. The only doubt upon this subject is raised by the peculiar phraseology used in the bill of exceptions. The language is this : “ There was no evidence tending to show that the horse at the time of the accident baulked or stumbled, cr became unmanageable or contrary, or that the accident was caused by any vice, fault or defect on the part of the horse, or that any such vice, fault or defect contributed to the accident.” This certainly cannot be construed as literally accurate. If it were to be, the whole evidence on the part of the plaintiff, as to the qualities of the horse, was entirely immaterial, and all evidence of the vicious character of the horse, as well before as after the injury, was incompetent and inadmissible, for the character of the horse is wholly and utterly immaterial, unless his conduct at the time contributed to the injury.
The phrase thus construed is also entirely inconsistent with another portion of the bill of exceptions, which is in these words: “ The defendant denied the truth of the plaintiff’s account of the manner in which the accident had occurred, and introduced evidence tending to show that neither the plaintiff nor the wagon touched the pile of dirt at all; and, as one mode of accounting for the accident, contended that the horse might have stumbled or fallen, or stopped suddenly, without reference to the pile of dirt.” This certainly shows, not only that the defendant contended that the injury was caused not merely by the contributory fault of the horse, but solely by reason of his vicious character; and if it were true that neither the plaintiff nor his carriage reached the pile of dirt, as the defendant introduced evidence tending to show, then it was clearly competent for the defendant to show the vices of the horse, in order to show that it was by reason of those vices, and not by the obstruction in the way, that the plaintiff received his injury, and this was a fact to
Undoubtedly the true construction of the paragraph in the bill of exceptions is, that no witness testified to any observed misbehavior of the horse at the time. It does not appear by the bill of exceptions whether the plaintiff was alone at the time of the injury, or whether he was accompanied by any person, or by whom. If he was alone, and testified to the good behavior of the horse, and that the horse actually ran upon the pile of dirt, and other witnesses, subsequently congregated, testified that the carriage had not reached the pile of dirt, and that the wheel tracks showed the carriage stopped before the horse had reached the dirt, the jury might well have found that the pile of dirt was not the cause of the injury. It was a question of fact for the jury. It might have been that the pile of dirt caused the horse to stop without fault upon his part, but it was purely a matter for the jury, who might have found that it was the viciousness of the horse, and not the pile of dirt, which caused the injury; and if, upon a view of all the evidence, they were satisfied that the horse stopped before he reached the pile of dirt, the very fact that the plaintiff attempted to mislead them by testifying that the horse actually ran into the pile of dirt would be a reason why the jury should more carefully scrutinize all the facts in reference to the character of the horse, in con nection with the attempt of the plaintiff to mislead them as to the exact locality and mode in which his injury was received.
It is contended, on the part of the plaintiff, that the verdict in this case should not be set aside, because the evidence rejected was immaterial, and because its admissibility was within the discretion of the presiding judge. As to the last point, we have already said that the evidence was not rejected as matter of discretion, but was ruled upon as matter of law, and it nowhere appears that the presiding judge would have rejected the evidence as matter of discretion, unless he had deemed it incompetent in law. Upon the other ground of immateriality, we understand the argument of the plaintiff’s counsel to be based solely upon the paragraph upon which we have commented, and which he contends is to be taken as literally true. Even if it could be so claimed, the rejected evidence is evidence which bears upon
There are cases in which the finding of a jury upon one question may render immaterial the reception or rejection! of evidence upon some other question in the case. The more common example of this is when competent evidence is rejected or incompetent evidence is received upon the subject of damages, and the jury find a general verdict for the defendant. In such cases the whole evidence upon the question of damages becomes immaterial. There are other cases of the same kind where the finding of the jury upon one question renders wholly immaterial all evidence in relation to other questions arising in the case. The court should be very slow to say that any evidence which is competent upon a question decided against a party is immaterial, and never unless the whole evidence is presented, and the question of its sufficiency distinctly raised. In this case we think the evidence rejected was clearly competent and material, and its sufficiency should have been left with the jmy.
Jf&ce.piio&t sustained.
