Broderick v. Higginson
| Decision Date | 23 November 1897 |
| Citation | 169 Mass. 482,48 N.E. 269 |
| Parties | BRODERICK v. HIGGINSON (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Burton W. Potter, for plaintiffs.
W.S.B Hopkins and Frank B. Smith, for defendant.
A question common to both of these cases is whether it is competent to prove that a dog has a habit of attacking passing teams, in support of a disputed allegation that he attacked a passing team on a particular occasion. It is a familiar fact that animals are more likely to act in a certain way at a particular time if the action is in accordance with their established habit or usual conduct than if it is not. There is a probability that an animal will act as he is accustomed to act under like circumstances. For this reason, when disputes have arisen in regard to the conduct of an animal, evidence of his habits in that particular has often been received. Todd v. Rowley, 8 Allen. 57; Maggi v. Cutts, 123 Mass. 537; Lynch v Moore, 154 Mass. 335, 28 N.E. 277. These cases fully cover the question now presented. They are authorities, not only to the proposition that evidence of habit may be received in such cases, but that habits may be proved by evidence of the frequent observation of particular instances. Of similar import, although somewhat different in the application of the principle, are the later cases of Bemis v. Temple, 162 Mass. 342, 38 N.E. 970, and Shea v. Fabrics Co., 162 Mass. 463, 38 N.E. 1123. We are of opinion that the evidence should have been admitted.
The other question arises only in the case of the female plaintiff. The liability of the defendant in the two cases depends upon the same facts, and it would seem anomalous that a verdict should be rendered in his favor in one case and against him in the other. But, to prove facts relied on by him, the admission of the husband was competent in the husband's case, and not in the wife's. If her case was being tried alone, it is clear that her husband's admissions would not be competent. They were not made competent against her by the fact that for convenience his case was being tried at the same time with hers. It was the duty of the presiding judge to instruct the jury that these admissions might be considered in his case, but not in hers. Sometimes the risk that a party who has made no admissions may be prejudiced by the admissions of another party whose rights or liabilities depend on the...
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Lloyd v. Alton Railroad Co.
...of habits of dogs. Wigmore on Evidence (3rd Ed.), sec. 2569; 1 Wigmore on Evidence, sec. 68A, p. 490, sec. 201, p. 688; Broderick v. Higginson, 48 N.E. 269; Mitchell v. Central of Vt., 158 N.E. 336; Goldin v. Rd. Co., 84 Mo. App. 59; Forsythe v. Kluckhohn, 142 N.W. 225. (8) Actionable negli......
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Lloyd v. Alton R. Co.
...of lumber. It was held that evidence that horses, other than those involved, got frightened at the lumber pile was competent. The Broderick case, supra, was recover for personal injuries caused by the defendant's dog attacking a team driven by the plaintiff. In that case it was said that "t......
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Guidara & Terenzio, Inc. v. R. Guastavino Co.
...animals under conditions apparently similar. Bemis v. Temple, 162 Mass. 342, 38 N. E. 970,26 L. R. A. 254;Broderick v. Higginson, 169 Mass. 482, 48 N. E. 269,61 Am. St. Rep. 296;Johnstone v. Tuttle, 196 Mass. 112, 81 N. E. 886. In Commonwealth v. Leach, 156 Mass. 99, 30 N. E. 163, evidence ......
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Perkins v. Oxford Paper Co.
...v. Boston & Albany Railroad, 156 Mass. 86, 30 N. E. 224; Green v. Smith, 169 Mass. 485, 48 N. E. 621; Broderick v. Higginson, 169 Mass. 482, 48 N. E. 269, 61 Am. St Rep. 296; Willey v. Boston Electric Light Co., 168 Mass. 40, 46 N. E. 395, 37 L. R. A. 723. Whether, in the case at bar, it mi......