Branch v. Libby

• Decision Date: 22 June 1886
• Parties: BRANCH v. LIBBY.
• Court: Maine Supreme Court

5 A. 71

78 Me. 321

BRANCH

v. LIBBY.¹

Supreme Judicial Court of Maine.

June 22, 1886.

On exceptions by plaintiff from superior court, Kennebec county.

This was an action on the case to recover damages for injuries alleged to have been sustained through defendant's negligence in placing certain improper obstructions in a highway. The verdict was for the defendant, and the plaintiff alleged exceptions.

Brown & Carver, for plaintiff.

G. T. Stevens, for defendant.

FOSTER, J. The only question presented by this bill of exceptions is upon the admissibility of evidence, against the plaintiff's objection, by which the defendant was allowed to prove that just before and just after the accident to the plaintiff other persons drove over the street-crossing without injury. Without discussing or even expressing any opinion in relation to the merits of the plaintiff's claim which he sets up against this defendant, we think the evidence was improperly admitted. It has been repeatedly held, in actions against towns for injuries sustained on account of alleged defects in highways therein, that evidence is not admissible to prove that a person other than a party to the action has either passed safely over the alleged defect, or has received an injury at that place. Such evidence is not competent either for the purpose of proving that the way was defective, or in suitable condition, at the time and place of the alleged injury, or as a test of the degree of care exercised by the plaintiff. In support of these principles only a few of the numerous cases need be cited, among which are the following: Aldrich v. Pelham, 1 Gray, 510; Collins v. Dorchester, 6 Cush. 396; Kidder v. Dunstable, 11 Gray, 342; Schoonmaker v. Wilbraham, 110 Mass. 134; Hubbard v. And. & Ken. R. Co., 39 Me. 506; Hubbard v. Concord, 35 N. H. 52. The reason assigned for rejecting such evidence is that it is not pertinent to the issue, but is evidence concerning collateral facts tending "to draw away the minds of the jury from the point in issue, and to excite prejudice and mislead them; and, moreover, the adverse party, having no notice of such a course of evidence, is not prepared to rebut it." 1 Greenl. Ev. § 52. As was said by this court in Parker v. Portland Publishing Co., 69 Me. 175, the entire weight of judicial authority is against the reception of such evidence. And in Moulton v. Scruton, 39 Me. 288, it was held that such evidence was inadmissible upon cross-examination. If admitted, each...