XII. Relevancy and materiality. c. Custom, habit, or course of business. R. Co. L.R.A.1916B, 824, 269 Ill. 386, 109 | h. Upon the question of the negligence N. E. 984. (Annotated) and contributory negligence of hunters one of whom shot the other under the mistaken - custom of class to which injured person belongs. § 1145. See also post, § 1287 d. a. Evidence of a known usage or custom of passengers to pass from one car to another of a moving train is admissible in an action to recover for injury to one thrown from a platform while attempting to do so, as bearing upon the question of his negligence. Auld v. Southern R. Co. 37 L.R.A. (N.S.) 518, 136 Ga. 266, 71 S. E. 426. b. The custom of people to crawl under cars blockading the street cannot be proved on the question of negligence in thus passing under them. Rumpel v. Oregon Short Line & U. N. R. Co. 22 L.R.A. 725, 4 Idaho, 13, 35 Pac. 700. c. Evidence is not admissible in an action to hold the owner of building liable for injury to a painter by the fall of a scaffold, that it was the custom of painters to construct their own scaffolds, if they did not do so in the particular case involved. Penv. Inland Empire Paper Co. L.R.A. 1915F, 15, 73 Wash. 338, 132 Pac. 39. son d. Evidence that it is customary for brakeman on a railroad, and especially in the yard where the accident occurred, to get on coal cars over the side, is admissible to show that a brakeman injured in an attempt to do so was not chargeable with negli gence. Coates v. Boston & M. R. Co. 10 L.R.A. 769, 153 Mass. 297, 26 N. E. 864. e. In an action for the death of a brake man due to the giving way of a crosspiece nailed across a loaded lumber car, evidence is admissible of a custom on the part of railroad men to use such crosspieces to assist them in climbing about the car in the performance of their work, for the purpose of showing that such pieces were put by the employees to a secondary use, for which they were not intended, under circumstances charging the company with notice, and thereby placing upon it a responsibility for their safety. Wallace v. Seaboard Air Line R. Co. 13 L.R.A. (N.S.) 384, 141 N. C. 646, 54 S. E. 399. f. Evidence of the usual and customary way of mounting flat cars in front of a road engine when used in switching, offered to disprove contributory negligence, is not inadmissible on the ground that it is an attempt to excuse negligence by usage or custom, where it does not appear that the act in question was positively negligent. Prosser v. Montana C. R. Co. 30 L.R.A. 814, 17 Mont. 372, 43 Pac. 81. g. Exclusion, in an action for death of a freight conductor by being run over by train while walking along a track to check his train, of evidence that his act was according to custom in railroad yards generally, is not error where he was negligent in becoming so absorbed in his duties as to fail to observe his surroundings. Neary v. Northern P. R. Co. 19 L.R.A. (N.S.) 446, 37 Mont. 461, 97 Pac. 944. belief that he was an animal, while he was moving through bushes in violation of an understanding as to where each should station himself, evidence is not admissible of the custom of hunters under such circumstances,-at least where the custom is not shown to have been known to the parties. Rudd v. Byrnes, 26 L.R.A. (N.S.) 134, 156 Cal. 636, 105 Pac. 957. i. In an action for injuries to a tenant's employee by the fall of a freight elevator, evidence is admissible of a custom of employees to accompany freight being elevated or lowered on the elevator while the elevator is in charge of the owner's agent, as tending to show that the employee was rightfully upon the elevator. Springer v. Ford, 52 L.R.A. 930, 189 Ill. 430, 59 N. E. 953. accus j. Evidence that travelers were tomed to warn each other to avoid meeting others at a spot in a highway where an accident occurred is not admissible in an action against the town to recover for inju Colburn v. ries caused by the accident. Groton, 22 L.R.A. 763, 66 N. H. 151, 29 Atl. 95. k. On the question of wantonness in leaving a bomb in a public alley evidence is admissible that children were in the habit of playing there. Wells v. Gallagher, 3 L.R.A. (N.S.) 759, 144 Ala. 363, 39 So. 747. 1. In an action to hold a railroad com pany liable for injury caused by running a train past a station platform, without light or warning, after dark, evidence is inadmissible of a custom of pedestrians to use a path across the property, if, because of the presence of another train across the path, it could not have been in use at the time of the injury. Neice v. Chicago & A. R. Co. 41 L.R.A.(N.S.) 162, 254 Ill. 595, 98 N. E. 989. § 1146. custom of class to which negligent person belongs. See also ante, § 1145 h. a. The standard of care required of persons under given circumstances is not to be established by proof that others have been in the habit of acting in a certain man ner. Rudd v. Byrnes, 26 L.R.A. (N.S.) 134, 156 Cal. 636, 105 Pac. 957. b. The custom and usage of other wellregulated businesses of the like kind as to the use of certain machinery and mechanical appliances may always be adduced in evidence as tending to negative the charge of negligence when that charge is based upon the use of such machinery or appliances Holland v. Tennessee by the defendant. Coal, I. & R. Co. 12 L.R.A. 232, 91 Ala. 444, 8 So. 524. c. While it is not always true that what everybody does, anybody may do without the imputation of negligence, still it is competent to show the general habit of man AII. Relevancy and materiality. c. Custom, habit, or course of business. kind in the same kind of business as tend- | d. Where the act resulting in injury is not negligent per se it is competent to show that other persons experienced in the same business under similar circumstances pursued the same course but such evidence cannot avail where the injury has no connection with the course of action adopted. Neary v. Northern P. R. Co. 19 L.R.A. (N.S.) 446, 37 Mont. 461, 97 Pac. 944. 1. On the question of negligence of a street railway company in depending upon linemen to inspect the poles upon which they were required to work, evidence is admissible that such is the universal custom of such companies. Lynch v. Saginaw Valley Traction Co. 21 L.R.A. (N.S.) 774, 153 Mich. 174, 116 N. W. 983. m. Evidence of the common experience of railroads in getting back switch keys from e. To justify a consideration of the man- employees is inadmissible on the question ner in which a particular class of work of negligence of a railroad company in is usually performed by other employers, failing to recover such key from a disin determining whether a particular employ-charged employee. East Tennessee, V. & G. er was negligent in its performance, so as to be liable for injuries to a servant, it must be shown that the conditions under which the work is performed by the respective employers are similar. Johnson v. Union P. Coal Co. 67 L.R.A. 506, 28 Utah, 46, 76 Pac. 1089. f. In an action to hold a master liable for injury to an employee on a tugboat, who was caught by a set screw on the shaft, evidence is admissible that by general usage set screws on the shafts of such boats are not guarded, subject to a caution that it is not conclusive that defendant used due care under the circumstances. Shannahan v. Empire Engineering Corp. 44 L.R.A. (N.S.) 1185, 204 N. Y. 543, 98 N. E. 9. g. The practice of others engaged in the same business is evidence upon the question of negligence is not maintaining an elevation of a warehouse above the possible reach of tides, so as to render the owner liable for injury by tides to property stored therein. Hecht v. Boston Wharf Co. L.R.A. 1915D, 725, 220 Mass. 397, 107 N. E. 990. h. Evidence that many well-regulated furnaces habitually employ inexperienced men for a particular service is admissible on the question of negligence in employing such men for that kind of work in a furnace. Holland v. Tennessee Coal, I. & R. Co. 12 L.R.A. 232, 91 Ala. 444, 8 So. 524. i. Evidence that it is not customary in factories to have collars with projecting set screws placed on revolving shafts near pulleys, where it is necessary for employees to go frequently, is not admissible to show the duty of a particular employer towards his employees. Ford v. Mt. Tom Sulphite Pulp Co. 48 L.R.A. 96, 172 Mass. 544, 52 N. E. 1065. j. Upon the question of negligence in leaving hot lime in a mortar box uncovered and unprotected, some distance from the street, evidence of a custom among masons in the locality to do so is admissible. Zartner v. George, 52 L.R.A. (N.S.) 129, 156 Wis. 131, 145 N. W. 971. k. Upon the question of the liability of an automobile manufacturer for injury to a purchaser through collapse of a wheel, evidence is admissible as to the practice of manufacturers of such vehicles, and of the R. Co. v. Kane, 22 L.R.A. 315, 92 Ga. 187, 18 S. E. 18. n. What was usually and habitually done in the running of trains may be proved to rebut a claim that an employee was negligent in running a train in violation of rules. Hunn v. Michigan C. R. Co. 7 L.R.A. 500, 78 Mich. 513, 44 N. W. 502. o. In an action against a street car company for an injury to a passenger by falling over a hand bag placed in the aisle, evidence is admissible that it is not customary to provide racks for baggage in such cars, but that passengers are allowed to place their baggage upon the floor, or vice versa. Pitcher v. Old Colony Street R. Co. 13 L.R.A. (N.S.) 481, 196 Mass. 69, 81 N. E. 876. p. Evidence of the custom in the hospital where an operation is performed, or in the city where the hospital is located, is not admissible upon the question of the duty of a surgeon undertaking to perform an operation upon a stranger not shown to have had notice of the custom, if the custom is not shown to be general. Harris v. Fall, 27 L.R.A. (N.S.) 1174, 177 Fed. 79, 100 C. C. A. 497. q. Evidence that the identical raised certificates of stock have been used as collateral for years, and accepted by skilful bankers and brokers without suspicion, is admissible on the question of negligence in loaning a customer's money upon such certificate. Isham v. Post, 23 L.R.A. 90, 141 N. Y. 100, 35 N. E. 1084. § 1147. As to sobriety or drunken 1160 b. Evidence as to, generally, see post, § 1188. a. In an action for the death of a person, under the civil damage law, proof of his habits as a drinking man is competent on the question of damages. Brockway v. Patterson, 1 L.R.A. 708, 72 Mich. 122, 40 N. W. 192. b. Evidence of the habits or condition of defendant subsequent to the commencement of the action is admissible for the defense in an action for divorce on the ground of habitual intemperance, since a XII. Relevancy and materiality. c. Custom, habit, or course of business. divorce concerns the state as well as the parties, and the condition justifying it must be found to exist at the very time when the divorce is granted. Allen v. Allen, 49 L.R.A. 142, 73 Conn. 54, 46 Atl. 242. c. In an action to hold an employer liable for assault in removing a servant from his premises after termination of the relation, evidence is not admissible that the servant was steady and did not drink, where no attempt had been made to impeach his credibility of a witness. Noonan v. Luther, 41 L.R.A. (N.S.) 761, 206 N. Y. 105, 99 N. E. 178. d. Evidence of a plea of guilty, by an applicant for insurance, to a charge of drunkenness, is admissible in an action by an assignee of the beneficiary upon the policy in support of a defense of misrepresentation by the applicant as to his habits in that regard, where the plea was not so remote from the time of the application as to have no evidentiary value. Langdeau v. John Hancock Mut. L. Ins. Co. 18 L.R.A. (N.S.) 1190, 194 Mass. 56, 80 N. E. 452. § 1148. Of animals. a. Evidence of the habits at other times and on other occasions of a horse involved in a collision with a street car is not admissible if there is no evidence of his fright or other peculiarlity of conduct at the time of the collision. Johnston v. Bay State Street R. Co. L.R.A.1918A, 650, 222 Mass. 583, 111 N. E. 391. b. Evidence as to the habits of a team both before and after an accident is admissible in an action for injury by the accident, when the character or disposition of the team is in issue. Walrod v. Webster County, 47 L.R.A. 480, 110 Iowa, 349, 81 N. W. 598. d. Character; reputation; age. § 1149. Generally. Opinion evidence as to, see ante, §§ 885888. General reputation or notoriety, see ante, §§ 991-995. Proof of, by negative evidence, see post, § 1360 a. a. Whenever character is in issue evidence of reputation is competent. McIntire v. Levering, 2 L.R.A. 517, 148 Mass. 546, 20 N. E. 191. b. Where good or bad repute is the issue and this issue is incapable of being solved either way by evidence of conduct or particular acts, such evidence is wholly beyond the inquiry and irrelevant. Moulton v. State, 6 L.R.A. 301, 88 Ala. 116, 6 So. 758. c. In civil cases each transaction must be ascertained by its own circumstances and not by the character of the parties. Great Western L. Ins. Co. v. Sparks, 49 L.R.A. (N.S.) 724, 38 Okla. 395, 132 Pac. 1092; Wilson Lumber & M. Co. v. Atkinson, 49 L.R.A. (N.S.) 733, 162 N. C. 298, 78 S. E. 212. d. In civil actions, where the character of the plaintiff is assailed by the defense interposed, evidence of his good character is admissible. Rasmusson v. North Coast F. Ins. Co. L.R.A.1915C, 1179, 83 Wash. 569, 145 Pac. 610. e. Evidence of a party's character is not admissible in civil actions for damages unless his character is directly in issue. Davenport v. Silvey, L.R.A.1916A, 1240, 265 Mo. 543, 178 S. W. 168. f. In ordinary civil actions character evidence is incompetent and immaterial. De Weese v. People use of Boulder, L.R.A. 1916E, 326, 61 Colo. 140, 156 Pac. 594. g. It is a general rule that in civil cases neither of the parties can introduce evidence in support of his good character until his character has been attacked by his adversary. But when the nature of the litigation is such as to put directly in issue the character of one of the parties, the party whose character is thus put in issue by the nature of the action may introduce evidence in support of it, although his adversary has not sought to impeach it. Lenihan v. Com. L.R.A.1917B, 1132, 165 Ky. 93, 176 S. W. 948. h. Evidence of good character is admissible in disbarment proceedings. Lenihan v. Com. L.R.A.1917B, 1132, 165 Ky. 93, 176 S. W. 948. i. The character of a party in a civil cause cannot be looked to as evidence that he did or did not do an act charged. Noonan v. Luther, 41 L.R.A. (N.S.) 761, 206 N. 105, 99 N. E. 178. Evidence of character in mitigation of dam-Y. Prejudicial error as to, see APPEAL AND Of plaintiff in action for false imprisonment, For purpose of impeaching witness, see WIT- To corroborate witness, see WITNESSES, S ceived to contradict an imputation of disj. Evidence of character cannot be rehonesty or fraud. Quinalty v. Temple, 27 L.R.A. (N.S.) 1114, 176 Fed. 67, 99 C. C. A. 375. k. What a witness has heard as to the character of a person cannot be given in evidence on the part of the person for whom he has testified that he knows the character under inquiry, although such matters may be brought out on cross-examination. Montgomery v. Crosthwait, 12 L.R.A. 140, 90 Ala. 553, 8 So. 498. 1. Evidence that one suing a hotelkeeper for injury to his feelings and reputation XII. Relevancy and materiality. by refusal to serve him was a chronic faultfinder and that his reputation as a guest was bad is not admissible. Morningstar v. Layafette Hotel Co. 52 L.R.A.(N.S.) 740, 211 N. Y. 465, 105 N. E. 656. m. Evidence of the character of a grantor is not admissible in support of a recital in his deed that he had received a convey ance from the original patentee of the land, where no other evidence of such conveyance is produced. Quinalty v. Temple, 27 L.R.A. (N.S.) 1114, 176 Fed. 67, 99 C. C. A. 375. n. In a contest between parents over the possession of a child of the marriage, evidence touching the character, conduct, and reputation of either of the parties, or any other evidence tending to throw light on their fitness to be custodian of the child, is admissible; but conclusions deducible from this testimony are not the subject-matter of opinion by the witnesses. Milner v. Gatlin, L.R.A.1916B, 977, 143 Ga. 816, 85 S. E. 1045. o. Evidence of the immoral character of the mother is immaterial in an action by her for the abduction of her child. Magnuson v. O'Dea, 48 L.R.A. (N.S.) 327, 75 Wash. 574, 135 Pac. 640. S. E. 212. p. In an action to set aside a compromise for fraud, proof of the good character of the one accused of fraud cannot be considered as substantive evidence against its exist ence. Wilson Lumber & Mill Co. v. Atkinson, 49 L.R.A. (N.S.) 733, 162 N. C. 298, 78 (Annotated) q. Defendant, who has pleaded self-defense in an action for assault and battery, upon which issue is taken, may show the turbulent character of plaintiff, although no evidence of his good character has been produced. Davenport v. Silvey, L.R.A. 1916A, 1240, 265 Mo. 543, 178 S. W. 168. (Annotated) r. Evidence of the previous good reputation of an attorney, for honesty, probity, and good moral character is admissible in evidence in a proceeding to disbar him for an alleged attempt to secure business by getting possession of an injured infant through false representations, and having a guardian appointed for him without the parents' knowledge or consent. Lenihan v. Com. L.R.A.1917B, 1132, 165 Ky. 93, 176 S. W. 948. s. A plaintiff in a suit for malicious prosecution upon a criminal charge may show his general good reputation, known to the defendant when the prosecution was commenced, as tending to show that the prosecution was without probable cause. McIntire v. Levering, 2 L.R.A. 517, 148 Mass. 546, 20 N. E. 191. t. A newspaper editorial reflecting upon the personal reputation of plaintiff is not admissible in an action to recover damages for slander, for the purpose of mitigating damages by showing bad general reputation of plaintiff. Pattangall v. Mooers, L.R.A. 1918E, 14, 113 Me. 412, 94 Atl. 561. d. Character; reputation; age. § 1150. How proved generally. Competency of witness as to, see WITNESSES, § 5. a. Specific acts of misconduct committed by a party to a suit may be shown in that class of cases where the act has some relation to, or some bearing upon, the issue involved in the case, and the general reputation of the party as to the particular trait of character involved may also be shown. Kolb v. Union R. Co. 54 L.R.A. 646, 23 R. I. 72, 49 Atl. 392. b. Specific acts bearing upon plaintiff's character cannot be shown to justify or mitigate a libel or slander, but only his general character or reputation can be shown. Muetze v. Tuteur, 9 L.R.A. 86, 77 Wis. 236, 46 N. W. 123. c. The general reputation of a person is to be proved by the oaths of witnesses who know what that general reputation is, and not by evidence of specific accusations of misconduct against the person, or of general rumors of ill repute concerning him. Pattangall v. Mooers, L.R.A.1918E, 14, 113 Me. 412, 94 Atl. 561. d. The reputation of the plaintiff in an action for libel may be put in evidence for the purpose of mitigating the damages, but this reputation must be established by the testimony of those who are familiar with and know the people among whom he associates, and not by singling out particular acts or facts. Register Newspaper Co. v. Stone, 11 L.R.A. (N.S.) 240, 31 Ky. L. Rep. 458, 102 S. W. 800. e. Evidence as to the character of the dog is not relevant in an action to recover damages under a statutory provision making the owner liable for injury inflicted by him out of the owner's inclosure. Whittet v. Bertsch, L.R.A.1916E, 710, 39 R. I. 31, 97 Atl. 18. § 1151. Of accused. To impeach accused as witness, see WIT NESSES, § 92 h. a. The character of one charged with a criminal offense cannot be assailed by the state until he has offered proof as to his character. State v. Beckner, 3 L.R.A. (N.S.) 535, 194 Mo. 281, 91 S. W. 892; People v. Lingley, 46 L.R.A. (N.S.) 342, 207 N. Y. 396, 101 N. E. 170. b. The character of the defendant in a criminal prosecution cannot be impeached or attacked by the state unless he puts his character in issue, either by becoming a witness in his own behalf, or by offering evidence in support of his character. State v. Hull, 20 L.R.A. 609, 18 R. I. 207, 26 Atl. 191. c. The proof of character offered as a defense to a charge of crime and evidence XII. Relevancy and materiality. rebutting such character must be such as bears analogy and reference to the nature of the charge on which the defendant is being tried. State v. Beckner, 3 L.R.A. (N.S.) 535, 194 Mo. 281, 91 S. W. 892. d. Evidence of the general reputation of one accused of crime as to the particular traits involved in the issue is admissible in his favor. People v. Van Gaasbeck, 22 L.R.A. (N.S.) 650, 189 N. Y. 408, 82 N. E. 718. e. That a witness has never heard the matter discussed does not prevent his testifying to the general reputation of an accused person for peace or violence in the community. Sinclair v. State, 2 L.R.A. (N.S.) 553, 87 Miss. 330, 39 So. 522. (Annotated) f. Evidence of character for honesty and fair dealings is admissible in a prosecution under an ordinance for fraudulent selling spoiled, diseased, or unwholesome provisions, where the evidence of defendant's knowledge of the condition is circumstantial and conflicting. De Weese v. People use of Boulder, L.R.A.1916E, 326, 61 Colo. 140, 156 Pac. 594. g. One accused of crime cannot testify in defense that he has never before been accused of, or arrested for, crime. State v. Marfaudille, 14 L.R.A. (N.S.) 346, 48 Wash. 117, 92 Pac. 939. h. The right to prove the good character of an accused is properly confined to a few years previous to the crime, without allowing proof of his reputation long before, in boyhood days. State v. Barr, 29 L.R.A. 154, 11 Wash. 481, 39 Pac. 1080. i. While character evidence is not a defense, it is a circumstance in the antece dent conduct and habits of the accused, its purpose being to strengthen the legal presumption of innocence, and is to be weighed and estimated by the jury according to the weight of the testimony by which it is supported, in connection with that to which it is opposed. Daniels v. State, 54 L.R.A. 286, 2 Penn. (Del.) 586, 48 Atl. 196. j. Evidence of the general reputation of the accused for peace and quietude is permissible in a prosecution for murder, though the murder may have been committed by poisoning. Carr v. State, 20 L.R.A. 863, 135 Ind. 1, 34 N. E. 533. d. Character; reputation; age. on a city street, and striking and killing a pedestrian, evidence is not admissible as to the reputation of accused as a skilful chauffeur and careful driver. State v. Goetz, 30 L.R.A. (N.S.) 458, 83 Conn. 437, 76 Atl. 1000. § 1152. Of deceased person. Evidence of custom or habit as to drunkenness, see ante, § 1147 a. a. Proof that a person was peaceable and quiet when sober, but noisy and quarrelsome when drunk, is competent, in an action under the civil damage law, for causing his death by intoxication, as bearing toxicated on the night in question, and whether such intoxication contributed to his injury and death, when it is proved that his death was caused by injuries received in a quarrel. Brockway v. Patterson, 1 L.R.A. 708, 72 Mich. 122, 40 N. W. 192. to truth and veracity is admissible, where payment of a life policy is denied because of his alleged fraud in making false representations as to his health. Åskey v. New York L. Ins. Co. L.R.A.1918F, 267, 102 Wash. 27, 172 Pac. 887. b. Evidence of the character of insured as c. The applicant's reputation "for being an intemperate user of alcoholic beverages" in his application for life insurance that, while he used intoxicating liquors, he did fect credibility, but in deural of a fact, perso temperately; for it is not offered to aftinent to the issue raised, and not difficult to prove, if true, by the acts of the inL.R.A. (N.S.) 431, 83 N. J. L. 719, 85 Atl. sured. Smith v. Prudential Ins. Co. 43 is not admissible to contradict a statement 190. |