Towle v. Pacific Improvement Co.

Belciier, C. The plaintiff brought this action to recover damages for the death of his wife, alleged to have been caused by the defendant’s servant, by negligently causing or permitting a team of horses to run over her.

The defendant had judgment and the plaintiff appeals.

At the trial the defendant was allowed, over plaintiff’s objection and exception, to introduce evidence that the defendant’s driver, who was in charge of the team, was a good, first-class driver, careful in handling horses, and that during the four years he had been in the employ of defendant, he had never been guilty of any mismanagement or carelessness in the conduct or care of the team.

Whether or not this evidence was admissible is the only question presented for decision.

The law as to the admissibility of such evidence in cases of similar character is thus stated in Deering on Negligence, section 407: “ Whether the act or omission of the defendant is actionable negligence is to be determined by the character of the act, or omission, and not by the defendant’s character for care and caution. Evidence that the defendant is a careful, prudent, and cautious man, is inadmissible to negative his want of ordinary care. Upon the question of the negligence of the engineer at the time of the collision of two trains, evidence of the general incapacity of the engineer, or of his being subject to fits, is immaterial. The reputation of the driver of a horse and carriage is inadmissible in an action by the owner of another horse killed by a collision therewith.” And in 2 Thompson on Negligence, page 804, it is said: “Evidence that the plaintiff was commonly a careful and skillful driver, is not admissible to show that when the accident occurred he was in the exercise of due care. The principle is that the question whether a person was at a given time in the exercise of due care is to be [344]■ resolved upon evidence of what took place at the time, and not upon evidence of the general character he may sustain.”

The rule as above declared is supported by numerous decisions in other states, and we think it should be followed iu this state. (See Tenney v. Tuttle, 1 Allen, 185; McDonald v. Savoy, 110 Mass. 49; McCarty v. Leary, 118 Mass. 509; Jacobs v. Duke, 1 Smith, E. D. 271; Hays v. Millar, 77 Pa. St. 238; Dunham v. Rackliffe, 71 Me. 345; Chase v. Railroad Co., 77 Me. 62; 52 Am. Pep. 744; Morris v. Town of East Haven, 41 Conn. 252;