Wooster v. Broadway & Seventh Avenue Railroad

FOLLÉTT, J.

On the trial the plaintiff was asked:

“Question. The coachman who was driving at the time, how long had he •been in your employment? Answer. Oh, he had been with me for five years *379 then. He is with us stül. Q. Do you find him careful or careless? (Objected to by the defendant as immaterial, incompetent, and irrelevant. Objection overruled. Defendant excepted.) A. Oh, very careful; a very careful driver, indeed. It was a gentle horse.”

Like evidence was given by the plaintiff’s husband, over the defendant’s objection and exception. This evidence was undoubtedly supposed to bear on the issue of contributory negligence of the plaintiff’s driver. It certainly had no relation to any other issue. The issue was not whether the plaintiff had negligently employed or continued in her service a careless or unskillful driver, nor whether he had been careful or negligent on previous occasions, but it was, “Did his negligence contribute to this accident?” This ■evidence was not relevant to this or to any issue in the case, and was incompetent. Jacobs v. Duke, 1 E. D. Smith, 271; Warner v. Railroad Co., 44 N. Y. 465, 472 ; Maguire v. Railroad Co., 115 Mass. 239 ; Whitney v. Gross, 140 Mass. 232 , 5 N. E. Rep. 619; Hays v. Millar, 77 Pa. St. 238; Whart. Neg. § 169; Whart. Ev. § 40; Abb. Tr. Ev. 584. It has been many times held that it is not competent for a plaintiff to give evidence that the person by whom the alleged negligent act was committed had previously committed similar acts, or that he was generally negligent or unskillful. The same rule is applicable to a plaintiff seeking to show that the acts of her servant did not contribute to the accident.

The plaintiff was permitted to show on the trial, over defendant’s objection, that it was “incompetent, irrelevant, and immaterial,” the expenses of her cure and of repairing the coupe. It appears that she is a married woman living with her husband, and the presumption is that he is liable for and discharges the ordinary expenses of the household and of the care of his wife and family. Before the plaintiff could be entitled to recover for those items, it was necessary for her to show that the expenses were paid out of her own estate. This was not done. But the objection raised to this evidence was not as specific as it should have been. The objection did not call specifically to the mind of the court and of the plaintiff’s counsel that the evidence was objected to on the ground that the plaintiff was not, but that her husband was, entitled to recover for these items, without showing that she had personally paid the charges or had become liable to pay them. Had this objection been made, it might have been obviated on the trial by showing that the plaintiff had a personal estate and had paid the charges out of it, or that she has become liable to pay them. Thomp. Trials, § 693 et seq. But we think, for the first error discussed, that a new trial should be had. The question of negligence and of contributory negligence is a close one, and we cannot say that the erroneous evidence did not influence the jury. The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.