Birmingham Ry. L. &. P. Co. v. Hass

SOMERVILLE, J.— (1) It is a matter of common knowledge that passengers on streets cars do not take passage for any designated place, and that upon the payment of the customary fare they are entitled to ride to any point between termini of the route traveled by the particular car. In other words, their destination is any stopping place at which they decide to leave the car. It was therefore immaterial whether the plaintiff originally intended to leave the car at Park avenue or at Seventh avenue. If they were regular stopping places, or if the cars customarily stopped there on signals from passengers, the plaintiff was entitled to change her mind and alight at either place; and the defendant’s negligent failure to allow her the opportunity to alight at either place, upon seasonable notice from her, was equally a violation of its duty. This being so, charges 1, 2, and 6 Avere properly refused to the defendant. (2) Refused charges 3, 9, and 10 are objectionable in that they single out parts of the evidence. (3, 4) Refused charge 4 is argumentative, and, moreover, was fully covered by given charge 7.' Refused charge 5, even if not misleading, Avas also fully covered by given charges 4 and 7. There Avas no error in the refusal of these charges. (5) We think, however, that the trial court erred in refusing to exclude the statement of the plaintiff that she signaled Park avenue first “because they have been in the habit of carrying me by there several times.” This clearly means no more than that on a few previous occasions (which are wholly undefined as to time and circumstances) some of the defendant’s servants (not necessarily the ones on this car on this occasion) carried her by Park avenue. Such previous breaches [278] of duty, in no way related, to the instant breach, are not admissible to show the probability of the instant breach, as charged by the plaintiff. — Baulec v. N. Y. Ry. Co., 59 N. Y. 356, 17 Am. Rep. 325; Warner v. N. Y. Ry. Co., 44 N. Y. 465; Mich. Cent. Ry. Co. v. Gilbert, 46 Mich. 176, 9 N. W. 243; Maguire v. Middlesex Ry. Co., 115 Mass. 239; Jones on Evidence, § 165; 29 Cyc. 610. See, also, in illustration of the principle, C. of G. Ry. Co. v. Brokerage Co., 122 Ga. 646, 50 S. E. 473, 69 L. R. A. 119; McGuire v. Kenefick, 111 Iowa, 147, 82 N. W. 485. We do not mean now to hold that a uniform course of conduct by any person, amounting to a settled habit, is never relevant to show what such person probably did on a particular occasion. See 1 Wigmore on Evidence, §§ 92, 96, 97; 29 Cyc. 610. Such evidence is often admitted, though sometimes rejected — dependent, of course, upon the circumstances of the case, the party offering it, and the ultimate fact to be shown thereby. See 1 May. Dig. 490, § 1081 et seq. As pointed out, we have not here a cas» of habit, and the error was doubtless prejudicial to tne defendant in the estimation of the jury. For the error noted, the judgment will be reversed, and the cause remanded. Reversed and remanded. Anderson, C. J., and M; Cleu ax and Mayfield, .JJ., concur.