33 N.J.L. 260 | N.J. | 1869
The opinion of the court was delivered by
The plaintiff having proved the situation of the premises, and the location of the area with reference to the sidewalk, and the circumstances under which she received the injury, rested her case. No motion was made for a non-suit. The defendants, as part of their case, proposed to prove (1) that over ten thousand persons had passed and repassed the area, every year since the hall was built, without accident; and (2) that such areas are common in the city of Trenton, and that it is the custom, in said city, to protect them as the area in question is protected, and that the hall and area were built according to the usual custom. The court excluded all evidence touching the matters embraced in these propositions; and this ruling constitutes the exceptions relied on for a reversal. The position of the plaintiffs in error is, that tins evidence was competent, either as bearing upon the question whether the area, as constructed, was a public nuisance, or as tending to show want of ordinary care in the plaintiff.
As no length of time will legalize a public nuisance, so the
The residue of the evidence excluded is objectionable for irrelevancy. It is insisted that it should have been received and allowed to go to the jury, on the question whether the plaintiff was exercising ordinary care when the accident happened. The evidence is, that the night was dark, so dark that the plaintiff was unable to see where she was going; that she became separated from her escort, and was endeavoring to make her way through the unusual crowd of persons who were leaving the hall that evening, when she fell into the area. The negligence of the defendants, from
It was also argued that the evidence was competent, as tending to show that the area was not so dangerous that it might not be avoided by the exercise of ordinary care, and, therefore, was not a public nuisance ; and that, as bearing on this question, the number of persons who passed the premises daily, since the area had been constructed, without accident, was a circumstance from which a presumption might be drawn which might properly have an effect on the minds of the jury.
It is not easy to draw the line, and define, with accuracy, where probability ceases and speculation begins. The rule is everywhere stated, in general terms, that the evidence must be confined to the issue. This rule excludes all evidence of collateral facts which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute. 1 Greenleaf’s Ev., § 52.
It is not practicable to lay down any principle by which a judge should be governed in determining whether any class of facts offered to be proved, comes short of the requisite of affording a reasonable presumption as to the matter in issue, but the inclination of the cases is to exclude all proof of facts which are res inter alios acta, unless their probative force, as presumptions, clearly appears, for the obvious reason that the other party cannot be prepared to meet such proof by counter proof, as to the truth of the facts offered. When such evidence is offered, everything depends on the nature
The evidence excluded furnishes a forcible illustration of the necessity of the rule, to the trial of causes before juries.
The plaintiffs in error, to maintain the competency of this evidence, rely, chiefly, upon two oases decided in the Supreme Conn of Connecticut, House v. Metcalf, 27 Conn. 631, and Calkins v. Hartford, 33 Conn. 57. The opinion of the same court, in the intermediate case of Bailey v. The Town of Trumbull, 31 Conn. 582, and the remarks of Dutton, J., in Calkins v. City of Hartford, show that neither of the cases cited was understood as sanctioning the loose doctrine contended for. The court, in the last case, specially restricts the evidence to eases where the obstacle was such that the attention of all who passed that way would necessarily have been drawn to it; and their experience of its effects in obstructing travel, was substantially the samé as the plaintiff's when the injury was received. In both cases, the object of the evidence was, to show that the very thing complained of, under the precise circumstances in which the injury sued for was received, was, or was not, dangerous in itself, and therefore a nuisance, or otherwise. If the offer
There is no error in the ruling of the court below, in excluding this evidence, and the judgment must be affirmed.
The Chief Justice, and Justices Bedle and Dalrimple, concurred.
Judgment affirmed.