Moffitt v. Conn. Co.

• Decision Date: 11 March 1913
• Citation: 86 Conn. 527,86 A. 16
• Court: Connecticut Supreme Court
• Parties: MOFFITT v. CONNECTICUT CO.

86 A. 16

86 Conn. 527

MOFFITT

v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

March 11, 1913.

Appeal from Superior Court, Hartford County; William H. Williams, Judge.

Action by William J. Moffitt against the Connecticut Company. Judgment for defendant, and plaintiff appeals. Affirmed.

P. F. McDonough, of New Britain, for appellant.

J. F. Berry, of New Haven, for appellee.

WHEELER, J. The plaintiff claimed he signaled the motorman of defendant's northbound trolley car to stop the car; that the motorman was then looking in his direction, and thereupon the car stopped about opposite the north corner of Main and East Main streets in New Britain; and, as he was attempting to board the car, it was started suddenly without giving him a reasonable opportunity to board it, causing him to be thrown upon the rear platform and to be injured. The defendant claimed the plaintiff never signaled said car; that it never stopped at the north corner; and that the accident never happened.

Upon cross-examination of plaintiff's witnesses, the defendant attempted to show that the point where the plaintiff's witnesses testified the car stopped, viz., on said north corner, was not the regular stopping place for cars, but that the regular stopping place was on the south corner of said streets, at which point there were two white poles indicating the stopping point. The plaintiff objected to this evidence and assigns its admission as a principal ground of error.

As here pressed, the objection is that proof of the place of stopping at other times is not admissible as tending to disprove the plaintiff's witnesses that the car did in fact stop at the north corner at the time in question; that negligence of a motorman existing at one time cannot be disproved by proof of careful conduct at other times.

It is true that one's negligence on a particular occasion cannot be proved by showing his negligence on other occasions; nor can his freedom from negligence on one occasion be shown by proof of his due care on other occasions. Our reports furnish numerous illustrations of the application of this principle. Morris, Adm'r, v. East Haven, 41 Conn. 252, 254; State v. Goetz, 83 Conn. 437, 440, 76 Atl. 1000, 30 L. R. A. (N. S.) 458; Budd, Adm'r v. Meriden El. R. Co., 69 Conn. 272, 286, 37 Atl. 683; Tiesler v. Norwich, 73 Conn. 199, 201, 47 Atl. 161; Gilmore v. Am. T. & S. Co., 79 Conn. 499, 504, 66 Atl. 4. These are instances where an act of negligence or the reverse was sought to be inferred from other acts of negligence or nonnegligence. The case at bar differs from these cases, and does not fall within the principle invoked.

This is an attempt to corroborate the testimony of the operators of the car that it did not stop at the time and place the plaintiff claimed it did by showing that this place, under the rules of the defendant, was not its regular stopping place, but that that was on the opposite side of the street. The specific question is whether the rules of the defendant railway as to where its cars must stop are admissible in support of the testimony of the operators of the car that the car did not stop at the point claimed, but at the point named by the rules.

In the ordinary affairs of life in a conflict over a matter of fact between two persons, men would regard the fact that one of the persons was in duty bound to act under a certain rule which was equally obligatory upon a number of men and important in the prosecution of a quasi public business, as some evidence in support of his contention that he in fact acted under the rule. It would be thought to make more probable his claim. An evidential fact which men generally would act upon in the affairs of their life will logically aid in determining a legal issue, and ought to be held legally relevant and of probative value. And this is the test of legal admissibility. Locke v. Kraut, 85 Conn. 489, 83 Atl. 626.

If this offer be held in reality to be an attempt to prove the practice of the defendant in stopping its cars in accordance with its rule, it would still be admissible. We should then have a systematic and invariable regularity of conduct upon the part of a large body of operatives; and such a course of conduct would tend to prove the custom of the defendant to stop its cars at the particular point designated by the rules. A systematic course of conduct on the part of a body of men operating a railway, acting for a common purpose resulting in a custom in not stopping at a given point, may likewise be shown, since a negative custom may be equally effective in supporting a fact as an affirmative one. Wigmore on Ev. §§ 92, 376, 379. This principle applies to acts negligently done or omitted, not to those willfully done. State v. Railroad, 52 N. H. 549.

The authorities are not uniform; but we think the strong tendency is toward the conclusion we have reached, admitting evidence of a like character, tending to establish a systematic course of conduct ripening into a fixed habit or a definite custom.

The liberalization of courts in more recent times in the application of the rules of evidence has been due in no small measure to the more uniform enforcement of that first of all rules of evidence that "any fact may be proved which logically tends to aid the trier in the determination of the issue," find to the better appreciation of the practical justice of making the logical proof of the courtroom conform to the logical proof of the everyday world. A reference to a few of the more modern cases will indicate the tendency.

In Maisels v. Dry Dock Ry. Co., 16 App. Div. 391, 393, 45 N. Y. Supp. 4, 5, the defendant's theory was that the car stopped at the easterly corner, and the court held that evidence that cars always stopped at this corner was admissible. "The regular practice and custom, which the evidence in question tended to establish, to stop at the easterly corner was entirely competent to show the greater probability of the defendant's theory and the testimony in support of it."

In A. & P. R. Co. v. Herndon, 87 Va. 193, 12 S. E. 289, the plaintiff's theory was that she got off the train at a regular stopping place, while the defendant's theory was that she attempted to get off before reaching this point. The court say: "It is therefore clear that the testimony to the effect that the...