The

negligent methods,” as the latter is admis- | more probably negligent and careless, because sible. It is also a different question than they had before frequently neglected the same proving that other similar accidents have duty with impunity, and had thus become arisen from the same or similar cause, and habitually negligent in that regard." such proof is generally rejected. Smart v. courts of New Hampshire have several times Kansas City, 91 Mo. App. 586; Goble v. Kan- followed this ruling. In Smith v. Railroad, sas City, 148 Mo. 470, 50 S. W. 84; Calcater- 70 N. H. 53, 82, 47 Atl. 290, 291 (85 Am. St. ra v. Iovaldi, 123 Mo. App. 347, 351, 100 S. Rep. 596) the court said: "Cate's uniform W. 675. habit of slackening the speed of his horse to a walk at the Waukewan crossing, and looking and listening for the approach of a train before attempting to pass the crossing, tended to show that he did so on his fatal trip. It was substantial evidence of the exercise of care on that occasion. Davis v. Railroad, 68 N. H. 247, 248, 44 Atl. 388, and authorities cited." See, also, Stone v. Railroad, 72 N. H. 206, 55 Atl. 359. The Supreme Court of California, in Craven v. Pacific R. Co., 72 Cal. 345, 13 Pac. 878, in speaking of evidence as to a person's habit in jumping off a moving train, said: "But when, in the absence of any question of evil intent, or of any intent at all, the point of fact to be determined is whether or not a person did a certain thing, or did it in a particular way, and the direct testimony as to the fact is conflicting, then evidence is admissible to show that he was in the habit of doing the thing in question, or accustomed to do it in a particular way. A sensible man called upon, out of court, to determine whether or not a certain person had, on a certain occasion, carelessly jumped off a moving train of cars, and finding the direct testimony as to the matter conflicting, would naturally and properly give some weight to the fact that the person was in the habit of alighting from cars in that manner; and the consideration of such a fact in cases resembling the one at bar has frequently been sanctioned in court. The evidence, at least, had some legal tendency to show that plaintiff's conduct at the time of the injury was such as defendant ascribed to her." In Louisville & N. R. Co. v. McClish, 115 Fed. 268, 53 C. C. A. 60, the Circuit Court of Appeals ruled just to the contrary. In Shaber v. Railway Co., 28 Minn. 103, 9 N. W. 575, the court said: "Where the evidence is conflicting as to the speed in a particular instance, proof of the customary or habitual speed at which the engines of defendant ran under like circumstances may be given, to show that the evidence for plaintiff or for defendant is the more probable." The Appellate Court of Indiana, in Pittsburgh, C., C. & St. L. Ry. Co. v. McNeil, 66 N. E. 777, 779, said: "As we have said, the theory of appellant's defense was that appellee was injured by reason of his own negligence in jumping on its train while it was moving. This rejected evidence was competent to go to the jury upon the theory that, as the appellee had been in the habit of jumping on moving trains at that particular place, the jury were entitled to consider that fact, as tending to corroborate the evidence of the witness who testified that he saw him,

[3] Many authorities will be found upholding the admissibility of evidence of the particular kind now under discussion. In 1 Wigmore on Evidence, § 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 & Collateral Evidence, § 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 injury at a crossing in which the speed of the train became material. The court admitted proof of the usual rate of speed of that train, run by the same engineer, at the same crossing. This was held proper, and the court said: "It would seem to be axiomatic that a man is likely to do or not to do a thing, or to do it or not to do it in a particular way, as he is in the habit of doing or not doing it. But this must be understood of acts which are done, or omitted to be done, without any particular intent or purpose to injure any one. It cannot apply to acts that are done intentionally, willfully, or maliciously, because such acts are done with a specific object in view, and they are performed, not by force of habit, but with a definite purpose. But when the question is, did these servants of the road, without any intention whatever, and through mere negligence or carelessness, omit to give these signals on that occasion, we think the inquiry was properly made as to what they had done before in that regard, and whether they had or had not grown habitually negligent of the requirements of the road in that particular. In this view of the case, we think the evidence was admissible, not as evidence of character, not as evidence of fitness or unfitness, but simply as having some tendency to show that on this particular occasion these agents were

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 Savan

at the time he was injured, Jumping on the train. The jurors, being sensible men, of fair reason and discernment, were called upon to determine the pivotal question in the case-as to the manner in which appellee was injured. As to this question there was direct conflicting evidence. The manner of the in-nah R. Co. v. Flannagan, 82 Ga. 579, 588, 9 S. jury being in conflict, a sensible and reason- E. 471, 472 (14 Am. St. Rep. 183), ruled thus: able man would naturally and properly give The habitual high speed of this same engine, some weight to the fact that the injured par- when run previously by the same engineer, ty was in the habit of jumping on and off of moving trains in the manner indicated by on the same street, was of doubtful admissibility. The authorities upon the question one witness, on the reasonable and well-supconflict. For the affirmative might be cited ported theory that a person is more likely to State v. Railroad Co., 58 N. H. 410; State v. do or not to do a thing, or to do a thing or not to do it in a particular way, as he is in Railroad Co., 52 N. H. 528; Shaber v. Railthe habit of doing or not doing it. The reroad Co., 28 Minn. 103, 9 N. W. 575; Randall jected evidence had a legal tendency to show v. Telegraph Co., 54 Wis. 140, 11 N. W. 419 that appellee's conduct at the time he was in- [41 Am. Rep. 17]; Craven v. Railroad Co., 72 jured was such as appellant ascribed to Cal. 345, 13 Pac. 878; Henry v. Railroad Co., him." See, also, Chicago, St. L. & P. R. Co. 50 Cal. 176; Sheldon v. Railroad Co., 14 N. Y. v. Spilker, 134 Ind. 380, 33 N. E. 280, 34 N. 218 [67 Am. Dec. 155]. For the negative, E. 218. The Supreme Court of Colorado, in see Gahagan v. Railroad Co., 1 Allen [Mass.] Denver Tramway Co. v. Owens, 20 Colo. 107, 187 [79 Am. Dec. 724]; Railroad Co. v. Lee, 124, 36 Pac. 848, 854, said: "If it had been 60 Ill. 501; Railroad Co. v. Woodruff, 4 Md. proposed to show that the gripman had been 242 [59 Am. Dec. 72 ]; Parker v. Publishing in the service of the company for consider- Co., 69 Me. 173 [31 Am. Rep. 262]. Patt. able time, and that it had been his particu-Ry. Accident Law, 421, throws the weight of lar habit or custom not to stop in the middle of the block, this would have lent corroboration to his testimony that he did not so stop; for, in case of doubt as to what a person has done, it may be considered more probable that he has done what he has been in the habit of doing than that he has acted otherwise. Lawson, Usages & Cust. § 46; State v. Manchester & L. R. Co., 52 N. H. 529."

his opinion on this side. Upon so doubtful a question we think the court did not err in admitting the evidence. There are several cases in our reports holding that doubtful evidence is to be admitted, rather than excluded. What has been said upon this point applies equally to evidence touching habitual failure to ring the bell."

There is no doubt that the admissibility of this character of evidence should be re

[4] Several of the cases cited by appellant as supporting the proposition that this char-stricted and kept within narrow limits. The acter of evidence is not admissible are cases not strictly in point, as they relate to the proof of specific acts of carelessness or to the general reputation of a party as to being negligent, or as to traits of negligence generally without reference to the particular act

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 in issue. Boick v. Bissell, 80 Mich. 260, 45 time in question, and that it raises issues N. W. 55; Wooster v. Broadway R. Co., 72 which the opposite party will not be preHun, 197, 25 N. Y. Supp. 378; Glass v. Rail-pared to meet. This objection is largely road, 94 Ala. 581, 10 South. 215; Aiken v. avoided when the evidence is confined to Railroad, 184 Mass. 269, 68 N. E. 238. The the general habit of the party with reference trend of these decisions, however, is against to the particular act in issue. The jury the admissibility of such evidence, and other should in such case be made to understand cases will be found to the same effect and the purpose and scope of the eyidence. We more nearly in point. Eppendorf v. Railroad, think this was done in this case. The learn69 N. Y. 195, 25 Am. Rep. 171; Guggenheim ed trial judge, when ruling on this quesv. Railroad, 66 Mich. 150, 33 N. W. 161; tion, said: "Gentlemen, in the evidence, as Southern Kansas R. Co. v. Robbins, 43 Kan. I understand it, it seems there is a sharp 145, 23 Pac. 113; Maguire v. Railroad, 115 contest over the cause of this collision. ConMass. 239. tributory 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

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

sense the agent of his father in riding this horse. He must be treated as one of the actors and the fact that he was riding his father's horse instead of his own has little to do with the case. Then, there were other witnesses who saw him riding at a fast gait at various points on the road between town and the place of the accident. One witness, his grandfather, who lived about a quarter of a mile from the starting place, said that he wanted to speak to the boy and heard him coming; but before he could get to the door he was gone. Another witness saw him pass about one mile from town and only a short distance from the place of the accident and stated that he was then going a mile in three minutes. Another witness, still closer-250 yards-to the accident, stated that he was

for what it is worth. Under the law and the circumstances, they will have to determine the truthfulness of these two men, as to which one is telling the truth about the collision. Any circumstance which shows the habits of the two men might throw some light on it. He may tell what the habits of the boy was as to his own riding." While this was not an instruction to the jury, it had much the same effect and advised the jury at the time as to the only purpose for which the evidence was admitted. While the court refused an instruction altogether eliminating this evidence from the consideration of the jury, the court gave this instruction: "You are futher instructed that in determining the issue of whether or not plaintiff's son, George, was guilty of negligence at the time and place of the accident, causing or contrib-going like a "bat of lightning," and his eviuting to cause the injury, it is not material that plaintiff's said son at other or different times or occasions may have ridden on the highway at a rapid or fast rate of speed." We will therefore rule, though with some doubt as to its correctness, that the court did not commit reversible error in admitting this evidence.

[5] 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 futher evidence was offered as to these incidents, we will not hold same reversible error.

|

dence is sought to be discredited because
the darkness of the night prevented his rec-
ognizing very clearly the fast flying phan-
tom. This however, was for the jury. The
descriptions given by the witnesses of this
boy's ride on this dark night as he ap-
proached the culvert in question on his flying
steed remind one of the description of the
ride of Tam o'Shanter as he seeks to cross
the bridge on his good nag, Meg, with the
witches fast following:

"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 flent 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 20 to 30 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 20 to 30 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, the recoil could have driven the horse and buggy backward some 30 to 40 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.

[6, 7] 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 asked 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 account of having some work to do that night, and that he had a horse which could, and that he would, make the distance of 21⁄2 miles in six to eight minutes. It is shown that he then started at a fast gait, and he admits that he traveled fast for the first quarter of a mile and until he left the outskirts of the town. The defendant was then allowed to contradict and impeach this witness by proving by other witnesses who heard the same that he did make these statements. Besides this, these statements of the son are so intimately connected with his riding home as to be a part of the res gestæ and were properly admitted. the judgment should be and is affirmed. This is not a question of the statement of an agent being or not being binding on the

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

ROBERTSON, P. J., and FARRINGTON

principal, as the son was not in any proper | J., concur.

car but found that the door was locked, and the conductor merely looked around and went on without opening it. Plaintiff, however, said nothing to the conductor, and there is no pretense that he knew of plaintiff's objection to riding in the smoker or his susceptibility to sickness from such cause. Plaintiff then remained in the smoker without further protest to any one and says that he became sick about a half hour after the train pulled out. It is therefore evident that no one in charge of the train, except the

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1370, 1372, 1373; Dec. Dig. colored porter, knew at any time anything of 330.*]

2. TRIAL (§ 141*)-QUESTIONS OF LAW FACT.

OR

No court should leave it to the jury to find a specific verdict when the facts which the jury are to find as compelling such verdict are uncontradicted, but the court should declare the legal effect of such facts.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 336; Dec. § 141.*]

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by W. M. Russell against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

plaintiff's objection to riding in the smoker or of the possible effects of tobacco smoke on him. It is further shown that only a few passengers were in this smoking car on that trip.

Defendant proved, without contradiction, that this was one of its fast and best trains out of St. Louis, that it carried none but first-class passengers, and all the cars were designed and suitable for that class; that, in receiving passengers at St. Louis, the rule was that the brakeman stays at the rear end of the chair car and when men, not accompanied by women or children, came along that he frequently directed them forward to the smoker so as to save the chair car for women and children, but that no one who ob

W. F. Evans, of St. Louis, and Mann, Todd & Mann, of Springfield, for appellant. Hamlin & Seawell, of Springfield, for respondent.jected was ever coerced into going to the

smoker or staying there; that the door of the chair car next to the smoker was kept locked so that if any intoxicated person should happen to get on the smoker he would not pass back to the chair car unnoticed. These were certainly reasonable regulations and well calculated to benefit the traveling public. It was also shown that this was a vestibule train; that the car doors were all unlocked immediately after the train started; and that passengers were free to go from one car to another at will throughout the day's journey. It took about eight hours to run from St. Louis to Springfield, during which time plaintiff says he remained in the

STURGIS, J. Plaintiff sued the defendant because of being compelled to ride in a smoking car on one of its trains from St. Louis to Springfield, Mo., the effect of which was to make him sick from the tobacco smoke. He also complains that this car was dirty, but there was little proof of this, and that charge was not submitted to the jury. He was 52 years old and was traveling from Knoxville, Tenn., to Springfield, Mo., on a first-class ticket. Plaintiff's evidence is that when he got to St. Louis he passed through the gate at Union Station and to defendant's train, which left there about 9 o'clock in the morning arriving at Springfield in the after-smoker and was sick and unable to eat in noon; that, when he came to the rear end of the chair car, the brakeman and porter directed him to go on to the next car. There was no pretense, however, that the brakeman knew that plaintiff objected to going to the smoking car or that he was susceptible to sickness from any such cause. On plaintiff's going to and discovering that the next car was the smoking car, he states that he went out on the platform and informed the porter, who had evidently followed him there, that tobacco smoke would make him sick and objected to riding in such car, but that the porter told him that it would not bother him and insisted and ordered him to go back in the smoker. He also says that the conductor soon came along there and went up the steps, opened the door to the chair car next to the smoker, and went in, shutting the door; that plaintiff tried to follow him into the chair

consequence thereof. He frankly admits however, that after the train started he made no complaint to any one, not even the porter, and made no effort or request to go to another car; he made no mention of his sickness or discomfort from riding in the smoker to the conductor, collector, or brakeman, and none to the porter after the train started or he became sick. Nor is it claimed that his sickness was such as to appraise any one, trainmen or fellow passengers, of his being so.

The following questions and answers are taken from plaintiff's evidence: "Q. So you never said anything to anybody except the porter? A. I made my complaint before I got on the train. Q. And never made any complaint after the train started? A. No, sir. Q. It was all before the train started? A. Yes sir. * Q. The thing that affected you was the tobacco smoke? A. Yes,

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

sir. Q. Don't you know as soon as that train | comforts. He had reached the age of disleft St. Louis, as soon as it pulled out of the cretion and cannot be allowed to claim damshed, the door into this car back of you, the ages on account of a situation caused by a chair car, was open? A. No, sir; I didn't mistake of the porter which he accepted and know it. There wasn't much crowd in there gave the railroad company, through its propbefore the train started. Q. After that train er officers in charge of the train, no opportustarted did you go to the door? A. No, sir; nity to correct." See Hemmingway v. RailI thought they had given me to understand I road, 72 Wis. 42, 37 N. W. 804, 7 Am. St. Rep. had to ride there. Q. Who had given you to 823, and note thereto. understand that? A. The colored man. Q. You just rested right there? A. I took it for granted there was where they were going to make me ride. Q. You never attempted to get out of that smoking car from that time on? A. I didn't try to get off the train, but I came out on the platform at Newberg, where they changed engines. Q. Did you attempt to go back in the other car then? A. No, sir."