
    (75 South. 883)
    MONTGOMERY LIGHT & TRACTION CO. v. DEVINNEY.
    (3 Div. 286.)
    (Supreme Court of Alabama.
    May 31, 1917.)
    Carriers <&wkey;317(10) — Carriage oe Passengers — Injury—Negligence—Evidence.
    In an action for injuries in attempting to leave a street car when the handhold broke and precipitated plaintiff to the ground, evidence that plaintiff had on previous occasions jumped off the car at the particular point and was accustomed to jumping off, as tending to show the intention of plaintiff when he rose from his seat and went to the running board of the car, was properly rejected; there having been eyewitnesses to the accident.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1303, 1304.]
    ©ssFor other oases see same topic and KE Y-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from City Court of Montgomery; Gaston Gunter, Judge.
    Action by Morgan Devinney against the Montgomery Light & Traction Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6.
    Affirmed.
    Rushton, Williams & Crenshaw, of Montgomery, for appellant.
    L. A. Sanderson, of Montgomery, for appellee.
   GARDNER, J.

Plaintiff (appellee in the court below) was a passenger on one of the street cars of the appellant in the city of Montgomery, and received injuries from a fall from the running board of the car, for which he recovered damages, and hence this appeal.

The car was what is known as a summer car, the seats running all the way across the same, with the running board on the side, on which passengers stepped in going upon the car and in alighting therefrom. Plaintiff insists that his destination was Whitman street, which was about 90 feet below where he fell, and that he requested the conductor to let him off at that corner, and the conductor had rung the bell, and the car was slowing down, that he stepped to the running board to be ready to get off when the car reached the comer, and that as he put his weight on the handle hold to step to the running board the handle hold broke and threw him to the curb. The handle hold is probably three feet and a half long, and he states that it broke completely off, and that he knew nothing about the defective condition of such handle hold at the time. The plaintiff was on his way home when the accident occurred. There were eyewitnesses to the accident corroborative of the theory of the plaintiff.

Defendant insisted, and offered some evidence in support thereof, that the plaintiff walked to the running board of the car for the purpose of jumping off the car before it had stopped, and in doing so threw too much weight against the handle hold, causing it to break. The defendant then offered to show that plaintiff had on previous occasions jumped off the car at that point, and in fact was accustomed to jumping off there, offering such testimony upon the theory that it would tend to show the intention of the plaintiff at the time he arose from his seat and went to the running board of the car.. Objection to this testimony was sustained, and defendant duly excepted.

This presents the question of prime importance on this appeal. The trial court submitted the question of contributory negligence on the part of plaintiff to the jury for determination, and it is not insisted that under the circumstances of this case the question of contributory negligence was not one for the jury. Watkins v. Elec. Co., 120 Ala. 147, 24 South. 392, 43 L. R. A. 297; Armstrong v. Montgomery St. Ry., 123 Ala. 233, 26 South. 349.

The question of admissibility of the testimony as to the habits or previous custom of a person injured in a suit of this character where negligence is sought to be established has given rise to much discussion as well as contrariety of opinion. While the question seems never to have been directly determined by this court, yet we are of the opinion that the following authorities from this state indicate a leaning against the admissibility of such testimony in cases of this character: Warden v. L. & N. R. R. Co., 94 Ala. 277, 10 South. 276, 14 L. R. A. 552; Glass v. Memphis, etc., R. R. Co., 94 Ala. 581, 10 South. 215; B. R. L. & P. Co. v. Selhorst, 165 Ala. 475, 51 South. 568; M. & C. R. R. Co. v. Graham, 94 Ala. 545, 10 South. 283. See, also, in this connection, Blackwell v. Hamilton, 47 Ala. 470.

■Some of the authorities holding the evidence admissible confine the conclusion to those eases where there were no eyewitnesses to the accident, while others make no mention of this distinction, holding the,evidence generally admissible, and still others holding the evidence inadmissible without making mention as to whether or not there were eyewitnesses. Among the latter class may be cited the cases of Peoria & Pekin Union Ry. Co. v. Clayberg, 107 Ill. 644; L. & N. R. R. Co. v. McClish, 115 Fed. 268, 53 C. C. A. 60.

The following cases represent the view that the-evidence is admissible, ana make no distinction as to whether or not there were eyewitnesses to the accident: Pittsburgh, etc., Co. v. McNeil (Ind. App.) 66 N. E. 777; Preston v. Hannibal & St. J. R. Co., 132 Mo. 111, 33 W. 783.

The authorities having bearing upon this question may be found in the note to the case of Zucker, Adm’r, v. Whitridge, Receiver, 41 L. R. A. (N. S.) 683. The Zucker Case is from the Court of Appeals of New York, and a question of very similar character to that here involved was there treated in a very carefully prepared opinion. The language therein found so nearly accords with the conclusion we have here reached that we take therefrom the following quotation, approving the same as applicable to the case here under review:

“The weight of authority seems to be against admitting evidence of general conduct under proven circumstances to show conduct of the same kind under similar circumstances on a particular occasion, when there were eyewitnesses of the occurrence, including the person injured, if he survived the accident. We are not now called upon to decide whether evidence of the habits of a decedent in crossing railroads is competent when there is no eyewitness of the event. In this case there were four witnesses who saw what happened, and described the conduct of the deceased as he walked to his death. A question of evidence, to some extent, is a question of sound policy in the administration of the law. Sometimes it is necessary to weigh the probative force of evidence offered, compare it with the practical inconvenience of enforcing a rule to admit it, and decide whether, as matter of good policy, it should be admitted. Uniform conduct under the same circumstances on many prior occasions may be relevant as tending somewhat to show like conduct under like circumstances on the occasion in question. All relevant evidence, however, is not competent. Hearsay, although relevant, is held incompetent from public policy, because • there is safer and better evidence to establish the fact. Parol evidence to vary a written agreement is relevant, but incompetent, because sound policy requires that the writing should be presumed to express the final agreement of the parties. So, assuming the evidence in question to bo relevant, I think it should be held incompetent under the circumstances, because its probative force does not outweigh the inconvenience of a multitude of collateral issues, not suggested by the pleadings, the trial of which would take much time, tend to create confusion, and do little good. As was said by Chief Justice Peters, in Chase v. Maine C. R. Co. [77 Me. 62, 52 Am. Rep. 744] supra: ‘In many litigations, under such a test, there would arise a wager of character which would as unfairly settle the dispute as did formerly the wager of battle.’ The rule of the average life is care, or else it would not long continue; yet the average man is conscious that he is not always careful; and hence habit on general occasions is uncertain evidence of care on a particular occasion. It is not enough of itself to establish the fact sought to be proved, and, at the most, simply bears upon the probability. Habit is an inference from many acts, each of which presents an issue to be tried, and necessarily involves, direct, and naturally invites cross, examination. The circumstances surrounding each act present another issue, and thus many collateral issues would be involved which would not only consume much time, but would tend to distract the jury and load them away from the main issue to be decided. From the want of previous notice, the other party "would not be prepared to meet such evidence; and after all the testimony of this character was in, the fact would remain that, as no one is always careful, the subject of inquiry, although careful on many occasions, might have been careless on the occasion in question.”

We likewise confine our conclusion to the particular case here presented, where there were eyewitnesses to the accident. We therefore conclude there was no error in sustaining the objection to this testimony.

We have examined the cases in this State relied upon by appellant (McDonald v. Montgomery St. Ry. Co., 110 Ala. 161, 20 South. 317; Birmingham Trust, etc., Co. v. Curry, 175 Ala. 373, 57 South. 962, Ann. Cas. 1914D, 81; Home Ins. Co. v. Adler, 71 Ala. 516; Maxwell v. Brown Shoe Co., 114 Ala. 304, 21 South. 1009; Ryall v. Marx, 50 Ala. 31; Loeb v. Flash, 65 Ala. 526), but wé are of the opinion that these authorities do not at all militate against the conclusion we have here reached. The McDonald Case, supra, ip strongly relied upon by counsel for appellant, but we think the facts of that case readily distinguish the same from the case here under review.

There are but two other questions in the case, which we do not consider need discussion. Suffice it to say they have been carefully considered in the consultation, and we find in them nothing calling for a reversal of the case.

The judgment of the court below will be accordingly affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.  