36 Cal. 578 | Cal. | 1869
The'Court below erred in receiving the testimony of Mr. and Mrs. Taylor in relation to the fall of the former in the passageway, some six weeks before the injury sustained by the plaintiff, Caroline Diaz Martinez. That was res inter alios acta—a collateral issue, which the defendants could not be required to try in this case. If it was competent for the plaintiffs to prove that other persons had met with like accidents at the same place, it would be competent for the defendants to rebut it, and there would be no end, or might be no end, to the issues to be tried. This rule is too well established to need more than a citation of authorities. (1 Greenlf. on Ev., Sec. 448; Collins v. Inhabitants of Dorchester, 6 Cush. 396; Aldrich v. Inhabitants of Pelham, 1 Gray, 510; Kidder v. Inhabitants of Dunstable, 11 Gray, 342; C. P. R. R. of C. v. Pearson, 35 Cal. 247; Clark v. Willet, 35 Cal. 534; People v. Taylor, ante 36.)
The order of the Court below denying the-defendants’ motion for a new trial is reversed, and a new trial granted, and remittitur directed to issue forthwith.