
    Turnpike Company v. Hearn.
    (Nashville.
    February 3, 1889.)
    1. Evidence. Of habit of ajiimal.
    
    Habit of animal is a continuous fact to be shown by proof of successive acts of similar character.
    2. Same. Same. Subsequent, acts.
    
    Subsequent acts of similar character are competent to prove fixed habit of animal at a previous date — there being also evidence of conduct of animal at and prior to that date.
    Case cited and approved: 8 Allen, 51.
    PROM WILSON.
    Appeal in error from Circuit Court of Wilson County. RobeRt Cantrell, J.
    R. E. Thompson, E. E. Bearb, R. P. McClain, and Jorban Stokes for Turnpike Company.
    LillaRB Thompson, G-ribble & McMillan, and D. 0. Williams for Hearn.
   Snobgrass, J.

Hearn sued the plaintiff in error for damages .for an injury sustained by him in consequence of being thrown from a buggy while attempting to drive across a small bridge on the Lebanon and Sparta Turnpike. The accident was occasioned by the balking of the horse which he was driving. Hearn averred that the conduct of the . horse was attributable to a defect in the bridge.

Among other defenses the company insisted that the accident resulted from the negligence of Hearn in driving improperly an unmanageable horse, or one difficult of control. It offered evidence tending to show that the horse was of such disposition before and after the accident.

The evidence as to the conduct and character of the horse before the accident was admitted, and rejected as to that after the accident; and of this error is assigned.’

We are of opinion that the evidence rejected was admissible. The objection that, being afterward, the vicious or unmanageable or timid conduct of the horse may have been occasioned by this fright, and that therefore the evidence must be rejected is not sound. It assumes that the fright was the necessary, provoking cause, which it may or may not have been. This affects the weight, not the admissibility, of the evidence.

It should have been admitted and considered for what it was worth. In a well considered case, decided by the Supreme Judicial Court of Massachusetts, it was held that evidence relating to the habits of a horse subsequent to the accident (where the question involved was the same as here) was admissible, and objection to it went to its weight rather than to its competency.

That the habit of an animal is in its nature' a continuous fact to be shown by proof of successive acts of a similar kind, and evidence having been first offered to show that the horse had been restive and unmanageable previous to the occasion in question, testimony that he subsequently manifested a similar disposition was competent to prove that his previous conduct was not accidental or unusual, but frequent, and the result of a fixed habit at the time of the accident. Todd v. Inhabitants of Rowley, 8 Allen, 51.

Let the judgment be reversed, and the ease remanded for a new trial.  