Hodges v. Hill

• Citation: 161 S.W. 633,175 Mo.App. 441
• Parties: T. R. HODGES, Appellant, v. E. C. HILL, Respondent
• Decision Date: 11 December 1913
• Court: Court of Appeal of Missouri (US)

161 S.W. 633

175 Mo.App. 441

T. R. HODGES, Appellant, v. E. C. HILL, Respondent

Court of Appeals of Missouri, Springfield

December 11, 1913

Appeal from Lawrence Circuit Court.--Hon. Carr McNatt, Judge.

AFFIRMED.

Judgment affirmed.

J. L Maynard and I. V. McPherson for appellant.

(1) Evidence of other accidents or injuries, from the same or similar cause or of other similar acts of negligence on the part of defendant is not admissible to show negligence in a particular case. Goble v. Kansas City, 148 Mo. 475; 29 Cyc. 611; Railroad v. Borders, 61 Ill.App. 55; Railroad v. Hodge, 55 Ill.App. 166; Calcaterra v. Iovaldi, 123 Mo.App. 350; Coale v. Railroad, 60 Mo. 232; Connor v. Railroad, 181 Mo. 418; Perry v. Fort, 17 Mo.App. 218; Edwards v. Barber Asphalt Paving Co., 92 Mo.App. 91, 92; Smart v Kansas City, 91 Mo.App. 594. (2) By the weight of authority evidence of plaintiff's habits and usual conduct as to a particular act or of his character for prudence or recklessness is not admissible on the question of contributory negligence. 29 Cyc. 619; Glass v Railroad, 94 Ala. 581, 10 So. 215; Aiken v. Railroad, 184 Mass. 269; Guggenheim v. Railroad, 66 Mich. 150, 33 N.W. 161; Eppendorf v. Railroad, 69 N.Y. 195; Railroad v. McClish, 115 F. 268. (3) Declarations of an agent to bind a principal must be made at the very time he is doing an act he is authorized to do, and must be concerning the act he is then doing. Rogers v. McCune, 19 Mo. 557; Golson v. Ebert, 52 Mo. 270; Chillicothe ex rel. v. Raynard, 80 Mo. 189; Adams v. Railroad, 74 Mo. 556, 557, 558, 559; Carson v. Stockyards Co., 167 Mo.App. 444; Redman v. Railroad, 185 Mo. 11; Frye v. Railroad, 200 Mo. 377. (4) The defense of contributory negligence is an affirmative defense; the burden is upon the defendant to both plead and prove it. In the case at bar the defendant did plead the contributory negligence of the plaintiff's son. There was, however, no evidence introduced to warrant the court in submitting this defense to the jury. For this reason the giving of each of defendant's instructions B and C was error. Eckhard v. Transit Co., 190 Mo. 613, 614; Busching v. Gas Light Co., 73 Mo. 229; Eddington v. Railroad, 204 Mo. 67.

William B. Skinner for respondent.

(1) 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. Gillett's Indirect and Collateral Evidence, par. 68; Tramway Co. v. Owens, 36 P. 848; Sheldon v. Railroad, 67 Am. Dec. (N. Y.) 155; Railroad v. Spilker, 33 N.E. 280, 34 N.E. 218; Shaber v. Railroad, 9 N.W. (Minn.) 575; Presby v. Railroad, A. (N. H.) 554; Henry v. Railroad, 50 Cal. 176. (2) Of the probative force of a person's habit or custom, as showing the doing, on a specified occasion of the act which is the subject of the habit or custom, there can be no doubt. 1 Wigmore on Evidence, par. 92-98. (3) In general when a habit of conduct is to be evidenced by specific instances there is no reason why they should not be resorted to for that purpose. 1 Wigmore on Evidence, par. 375-376; Commonwealth v. Ryan, 134 Mass. 223; State v. Railroad, 52 N.H. 528; State v. Railroad, 58 N.H. 410. (4) Likely, proof of a negligent custom is admissible as tending to show negligence in an alleged instance of the custom. Calcaterra v. Iovaldi, 123 Mo.App. 352.

STURGIS, J. Robertson, P. J., concurs. Farrington, J., concurs.

OPINION

STURGIS, J.

This lawsuit grows out of the fact that plaintiff lost a valuable mare by reason of a collision between such animal while being ridden by his son and a one-horse buggy being driven by defendant on the public road leading north from Stotts City, in Lawrence county, Missouri. This road is one of the "special roads" of the county, being sixty feet wide, in splendid condition and much used and traveled by the public. It was on this highway that plaintiff's mare was injured on the night of March 4, 1913. The night was a very dark one and the defendant, who had been out on his farm, was returning home, traveling south on this road. He was driving a small, gray pony, of uncertain age, hitched to a rather dilapidated buggy, without a top, and using ropes for lines. George Hodges, the son of plaintiff, about twenty years of age, who had been to Stotts City, was riding the mare in question, a large, fast pacing animal, and was returning to his father's home and traveling north on this same road. These two individuals, thus traveling, collided with each other at or near a culvert in the road some distance north of the town of Stotts City. The result was that by force of the impact one of the shafts of defendant's buggy penetrated the breast of plaintiff's mare some six to nine inches, from the effects of which she died two weeks later. The defendant suffered no injury further than being thrown from his buggy into a ditch and having the shaft of his buggy splintered and the horse's harness somewhat broken. The boy also says that he was thrown from his horse into the ditch and received a bruised leg. Each party admits that it was so dark that he did not see the other until almost the time and place of the collision. Each claims that he heard the other coming down the road just before the collision and each claims that he turned somewhat to the right, slowed up to a practical stop and tried to let the other pass; each claims that he was, at and before the collision, traveling at a very moderate speed.

The plaintiff's petition charged that while his son was riding along the road in a careful manner, the defendant caused this injury to his mare by negligently driving his buggy and horse at a high rate of speed, thereby violently striking and running against his mare. The defendant by his answer charged that while he was with due care driving his horse and buggy along this road, the plaintiff's son caused the injury by riding the mare at a rapid rate of speed on this highway and violently running her upon and against his horse and buggy. The answer is treated as containing a plea of contributory negligence but that is hardly correct. Each party charged the other with the same negligence and each charged that the negligence of the other was the sole cause of the injury. Neither party, either in his pleadings or evidence, admits or even intimates that there was any concurrence of negligence but each maintains and the evidence of each shows that the other was alone negligent. No one witnessed the collision except the parties themselves and the other evidence is largely circumstantial. The jury found for the defendant.

The main point relied on for reversal, and which is not without much difficulty, arises on the action of the trial court in permitting the defendant to prove, first by cross-examination of plaintiff's son, who rode the mare at the time of the accident, and afterward by independent witnesses, that the said son was accustomed to and had the habit of riding this mare along this road between his home and town at a rapid rate of speed. In this connection it was also shown, without objection, that the animal was a fast pacer of racing stock and had been in training on a race track on plaintiff's farm. Stated in a more general way, the question presented is whether, in order to prove that a person did a particular act amounting to negligence only and which is without moral turpitude or evil intent, it is competent to prove that such person had a habit or custom of doing such particular act.

While many kindred propositions have been before the courts of this State, learned counsel have not cited nor have we found a case in this State involving this precise question. The case nearest in point is that of Calcaterra v. Iovaldi, 123 Mo.App. 347, 100 S.W. 675, where Judge GOODE stated that the question was one of great difficulty, and, placing doubt on the correctness of the ruling, held that where a child was hurt by a barrel falling from defendant's second story window to the sidewalk, it was not competent to show negligence of defendant by proving that on other occasions barrels had fallen from the same window. The reasons assigned for rejecting the evidence are that it was not shown whether defendant was in any way connected with such act and that it would "raise collateral issues as to whether the incidents related actually occurred or not, and, if so, under what circumstances, and to spring a surprise on appellants." It will be seen that the question there raised is quite different than the one here and some of the reasons for rejecting the evidence in that case do not apply here. Judge GOODE, as if to distinguish that case from one like this, said: "In certain classes of negligence cases, evidence of other negligent acts besides the one charged has been received, as tending to prove negligence in the act charged. It is said the collateral act may be proved if the inference may be drawn from it that the act charged was or was not negligent; but a study of the cases reveals, we think, that the admissibility of proof of the collateral act depends finally on the cogency of the proof it affords regarding the main issue--on whether it is so closely related to the main issue that its value as evidence is high enough to justify disregarding the objections to the reception of proof of collateral acts." And again: "The competency of a collateral fact in a given case turns, as we have said, on whether or not the court deems its bearing on the main issue to be so intimate and valuable as proof of the main fact that the objections to collateral evidence may be disregarded. Obviously there will often be a diversity of views on such a matter; hence the conflict in the opinions dealing with the subject. Likely ...