Appeal from Trial Term, Brown County.
Action by Horace J. Parsons, as administrator of the estate of Samuel S. Parsons, deceased, against the Syracuse, Binghamton & New York Railroad Company. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Reversed, and new trial granted.
[117 N.Y.S. 1059] The plaintiff's intestate was killed by being struck by an engine running without a train on the evening of October 10, 1906, while driving a single horse and carriage over a highway crossing the defendant's railroad. The deceased's wife, who was riding with him, was killed at the same time, so that there is no eyewitness of the accident except the defendant's engineer, who did not see the deceased or the horse and carriage until he was upon them; the horse having crossed the entire track and escaped without injury before the impact between the engine and the carriage. The claim of the plaintiff is that the headlight was not lighted, that the bell was not rung, nor the whistle blown, and that the engine was proceeding at the rate of about a mile a minute, although the evidence on all these points was conflicting. It was a dark, misty, and rainy night. The plaintiff had a verdict, and the defendant appeals.
Reynolds, Stanchfield & Collin (Halsey Sayles, of counsel), for appellant.
R. E. Courtney and Robert S. Parsons, for respondent.
Argued before SMITH, P. J., and CHESTER, KELLOGG, SEWELL, and COCHRANE, JJ.
In order to maintain his case, the plaintiff was permitted to prove, under the objection and exception of the defendant, that on 10 or 11 previous occasions the plaintiff's intestate, when driving over this same crossing, had stopped and looked up and down the track, or had used other precautions to guard against approaching trains. One witness was permitted to testify, under like objection and exception, that he had seen the deceased, on approaching this crossing on previous occasions stop and look up and down; that he did not see him very often, but occasionally, perhaps twice a week for about a year. This evidence all related to specific instances prior to the time of the accident, and had no relation whatever to the degree of care exercised at the time of the accident. The purpose of the evidence in relation to these specific instances undoubtedly was to show a habit of carefulness on the part of the deceased, as tending to show that he was prudent and careful upon the occasion when he was killed.
The only question presented for determination on this branch of the case is whether evidence of specific instances of care prior to the accident was competent on the question of care at the time of the accident. A man who is careful on one occasion may be careless on another. The circumstances at one time may be such as to induce prudence while they might not at another time. But the worst feature of this class of evidence is that it presents issues for trial not tendered by the pleadings, and which the opposing party is not prepared to meet. If this evidence was competent for the plaintiff, it would be just as competent for the defendant to prove that on prior occasions the plaintiff's intestate had been careless; that also on other nights, when this engineer ran his engine over this crossing, he had run it slowly; that he had his headlight burning; that he rang his bell, and blew his whistle; and that he had been seen many times on prior occasions to observe all these precautions. It would also be competent for the plaintiff to dispute such testimony, and to show that on prior occasions he had been careless. Thus the issues would be largely multiplied, [117 N.Y.S. 1060] and no party going to trial would know in advance what he would have to meet.
The pressure upon our courts is so great, arising very largely from the multiplication of actions for negligence, that a reasonably prompt dispatch of business could not be had if they were required to determine issues of this character not presented by the pleadings. It would seem, therefore, that good reasons exist for not supporting the admissibility of such evidence. So far as I can learn, the question has never been determined by any of the courts of this state. The fact that it has not been, in the light of the vast number of decisions in our Reports and the extended experience of our courts in dealing with negligence actions, is some indication that the profession and the courts generally have regarded evidence of that character as incompetent and immaterial. Yet it appears that in two states, at least, New Hampshire and Kansas, such evidence has been sanctioned. Davis v. Railroad C., 68 N.H. 247, 44 A. 388; Missouri Pac. Ry. Co. v. Moffatt, 60 Kan. 113, 55 P. 837, 72 Am.St.Rep. 343.
The case of Pruey v. N.Y. Central & H. R. R. Co., 41 A.D. 158, 58 N.Y.Supp. 797, affirmed 166 N.Y. 616, 59 N.E. 1129, cited by the respondent does not aid his contention. The most that can be said of that case, so far as it has a bearing on the admissibility of evidence, is that the court there received proof that the deceased was familiar with the surroundings at the crossing, and that the absence of contributory negligence may be established by proof of facts and circumstances from which it may be inferred that the deceased was not at fault.
Many cases are cited in the briefs of counsel where courts have received evidence of the general character and habits of the deceased for carefulness, and many others where they have refused to receive such evidence. These need not be referred to, as the question we have to determine is not as to the competency of proof of the habits of the deceased for carefulness, but as to the competency of evidence of his care or caution on prior specific occasions. While the doctrine contended for by the plaintiff has been maintained in some jurisdictions, as above indicated, it has very generally been repudiated.
In Baker v. Irish, 172 Pa. 528, 33 A. 558, which was an action to recover damages for personal injuries, where the defense of contributory negligence was relied on, it was held that evidence that on previous occasions the plaintiff was guilty of an act similar to the alleged act of contributory negligence was inadmissible.
In Robinson v. F. & W. R. R. Co., 7 Gray (Mass.) 92, it was held that evidence of specific acts of negligence and carelessness on the part of the engineer in running his train on other occasions than the one in question was incompetent, as it would only lead to collateral inquiries, and so distract and mislead the jury from the true issue before them, and it was there said:
" Because a man was careless or negligent of his duty in one or two specific instances, it does not follow that he was so at another time ...