Cook v. New Durham

• Decision Date: 16 March 1888
• Citation: 13 A. 650,64 N.H. 419
• Parties: COOK v. NEW DURHAM.
• Court: New Hampshire Supreme Court

13 A. 650

64 N.H. 419

COOK

v. NEW DURHAM.¹

Supreme Court of New Hampshire. Strafford.

March 16, 1888.

Case for injury on highway. Verdict for the defendant. The jury had a view. The plaintiff claims that she was injured in the night-time of September 27, 1885, by being precipitated with her horse and carriage over a bank which was not, but ought to have been, protected by a railing. She offered to show by one witness that he drove over the same bank, in the night, four or five years before, and injured his wagon; and by another, that he drove off the bank, in the night, at the same place, in November, 1885. There was no dispute in respect to the condition of the highway at the time of the plaintiff's accident. The plaintiff conceded that at the time of her accident, and at the time of each accident which she offered to prove, it was in the same condition as when the jury took a view. The court excluded the evidence, and the plaintiff excepted.

E. F. Cloutman and Worcester & Gafney, for plaintiff. G. E. Cochrane and J. Kivel, for defendant.

BLODGETT, J. Upon that branch of the case to which the excluded evidence more directly related, the question of fact was whether the highway ought to have been protected by a railing. Holding the affirmative of this question, it was both the right and the duty of the plaintiff to establish it by proofs which either immediately or mediately might tend to satisfy the jury of its truth; and as truths differ, the proofs adapted to them differ also. From the nature of the case itself one of the plaintiff's proofs necessarily was that the want of a railing rendered the highway unsuitable for the travel thereon, and another, that it was the proximate cause of the injury complained of; and, as serving to convince the jury of the truth of these propositions, it is not to be doubted that she might show by her own testimony the absence of a railing, as well as the character of her team, and the manner of its management, at the time of its precipitation down the embankment. These matters would manifestly be evidentiary facts, bearing upon the principal fact, namely, the

That evidence of former accidents is admissible for the purpose of showing notice, see District of Columbia v. Arms, 2 Sup. Ct. Rep. 840; Railroad Co. v. Wright, (Ind.) 16 N. E. Rep. 145 condition of the highway; and the only question of law, then, is whether, having presumably so testified, the plaintiff could go further and show by the testimony of others that they had been precipitated over the same embankment, at other times, and under like conditions. We think she could. Evidence is any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion affirmative or disaffirmative of the existence of some other matter of fact. 1 Benth. Jud. Ev. 17. Such was obviously the tendency of the facts which were excluded, and besides, the general admissibility of such testimony is so conclusively established in Darling v. Westmoreland, 52 N. H. 401, 403-406, that further discussion is unnecessary. It is suggested, however, that the ground of exclusion in the present case was, the highway being undisputed, and having been made...