Broderick v. Higginson , 1897 Mass. LEXIS 99 ( 1897 )

Knowlton, J.

A question common to both of these cases is, whether it is competent to prove that a dog has a habit of attacking passing teams, in support of a disputed allegation that he attacked a passing team on a particular occasion.

It is a familiar fact that animals are more likely to act in a certain way at a particular time, if the action is in accordance with their established habit or usual conduct, than if it is not. There is a probability that an animal wiU act as he is accustomed to act under like circumstances. For this reason, when disputes have arisen' in regard to the conduct of an animal, evidence of his habits in that particular has often been received. Todd v. Rowley, 8 Allen, 51, 58. Maggi v. Cutts, 123 Mass. 535, 537. Lynch v. Moore, 154 Mass. 335. These cases fully cover the question now presented. They are authorities not only to the proposition that evidence of habit may be received in such cases, but that habits may be proved by evidence of the frequent observation of particular instances. Of similar import, although somewhat different in the application of the principle, are the later cases of Bemis v. Temple, 162 Mass. 342, and Shea v. Glendale Elastic Fabrics Co. 162 Mass. 463. We are of opinion that the evidence should have been admitted.

The other question arises only in the case of the female plaintiff. The liability of the defendant in the two cases depends upon the same facts, and it would seem anomalous that a verdict should be rendered in his favor in one case and against him in the other. But to prove facts relied on by him the admission of the husband was competent in the husband’s case, and not in the wife’s. If her case was being tried alone, it is clear that her husband’s admissions would not be competent. They were not made competent against her by the fact that for convenience his case was being.tried at the same time with hers. It was the duty of the presiding judge to instruct the jury that these admissions might be considered in his case, but not in hers. Sometimes the risk that a party who has made no admissions may be prejudiced by the admissions of another party whose rights or liabilities depend on the same facts, is so great that a court will order separate trials, when otherwise their cases would be tried together. When cases of this kind are tried together the jury should be properly instructed, so that the rules of evidence may be applied for and against each party as if but one case was on trial. The instructions requested upon this part of the case were correct, and the instructions given were erroneous.

Exceptions sustained.