Hall v. Brown

This is not a proceeding to recover a penalty for an obstruction of the highway, under the provisions of Gen. St., c. 148, s. 7. The plaintiff, therefore, can maintain his cause only by showing actual fault or negligence of the defendants, such as would be sufficient to maintain the action at common law. Hall v. Brown, 54 N.H. 495. It makes no difference whether the defendants' cars were standing upon a legally constituted railroad track, or Upon the ground; nor, indeed, whether the obstruction was a train of cars, or an ox team, or a pile of lumber, or any other thing unlawfully and negligently placed there. But it is objected, that the instructions to the jury import an erroneous assumption by the court, and warranted the jury in finding, without proof of the fact, that the defendants had the right to be upon the track; whereas, it is contended, in the absence of proof of a chartered right, that the White Mountains Railroad could not lawfully give the defendants permission to run cars upon the track, and so, presumably, their presence at the crossing was a nuisance.

Highways may be used for many purposes other than public travel thereon, provided such use is not inconsistent with the reasonably free passage of the public; and the defendants' use and occupation of the highway by the location of an iron track across it, and the passage of cars thereon, would not, in and of itself, as matter of law, constitute a nuisance. The extent and character of the alleged obstruction was a question of fact, and we find no error in the instructions upon this. point. Graves v. Shattuck,35 N.H. 257; Chamberlain v. Enfield, 43 N.H. 356; Darling v. Westmoreland,52 N.H. 401.

No evidence of any fact of which the court take judicial notice, need be given to the jury by the party alleging its existence; but the judge, upon being called upon to take notice thereof, may, if he be unacquainted with such fact, refer to a printed statute, Historical work, or other proper source of information, or may refuse to take judicial notice thereof, unless and until the party calling upon him to take such notice produces satisfactory proof. Step. Dig. of Evid. (May's Am. ed.), art. 59, and note 1.

"Courts," says Prof. Greenleaf, "will generally take notice of whatever ought to be generally known within their jurisdiction." Greenl. Ev., ss. 4-6. A distinction, formerly prevailing in England, between public and private acts in this respect' no longer exists. Step. Dig. of Evid. 58. If a railroad charter in this state (all railroad corporations being declared public — Gen. St., c. 146, s. 1) can properly be denominated a private act, the annual distribution required by law (Gen. St., c. 4, s. 7), to each of the judges and to each clerk of the supreme court, "for the use of the court," of all laws, private as well as public, with equal evidence of authenticity and authority, seems to signify the legislative intention that the courts may take equal notice of both. Moreover, the charter, whether it be a public or a private act, is law; and proof of the law is for the court, and not for the jury, and may be received after verdict, without disturbing the verdict. Whittier v. Varney,10 N.H. 291, 304.

The testimony concerning the manner in which the defendants' cars were usually operated at the crossing was properly admitted. There being evidence that the train, at the time in question, was unloaded, the jury might find it was unloaded; and if they so found, the custom of compacting and shortening unloaded trains, so that they did not extend across the highway, tends to show that the unloaded train complained of was compacted and shortened so that it did not extend across the highway.

The question concerning the alleged obstruction was directly in issue. Evidence of the existence or non-existence of any fact relevant to a fact in issue may properly be received — step. Dig. of Evid. (ed. of 1877) art. 2; and ordinarily, and unless the case falls within some recognized class of exceptions, a fact, whether in issue or not, is relevant to another fact, when the one fact shows that the other must or cannot have occurred, or probably did not or could not have occurred. Step. Dig. (ed. of 1876), art. 9. Any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact, is relevant as an "evidentiary fact" tending to establish the "principal fact." Best on the Principles of Evidence 10, 25, 400. Such evidence may be rejected in the exercise of judicial discretion, as being too remote or too conjectural (Darling v. Westmoreland, 52 N.H. 408; Bundy v. Hyde, 50 N.H. 116, 120), but that circumstance does not affect the application of the rule.

When there is a question whether a particular act was done, the existence of any course of office or business, according to which it naturally would have been done, is a relevant fact. Step. Dig. (ed. of 1877), art. 13.

The recognition and application of these principles are not modern innovations. In 1754, it was judicially declared that the post-mark, properly proved, upon a letter, is evidence on the question whether the letter was sent on a certain day. A post-office clerk testified that the post-mark was a mark of the general post-office in London. Nobody testified from memory the time when the mark was made upon the letter, and the mark was imperfect. It was probably Jan. or May 19 or 29. No one doubted that the date of the mark made in the usual course of the post-office business was evidence upon the question when the letter passed through the post-office. There was nothing but usage to show that the letter was stamped in the post-office, or to show that it was in the post-office on the day of the date of the stamp. King v. Canning 19 St. Tr. 283, 370, 643. This was one hundred and twenty-two years ago. But in modern time (1845) the same doctrine was recognized in Skilbeck v. Garbett, 7 Ad. E. (N.S.) 846, where, to prove the sending of a letter by mail from the plaintiffs (who were attorneys) to the defendant (one of their Clients), a clerk of the plaintiffs testified that in the general course of business at the plaintiffs' office, letters to such clients as the defendant were made up by the witness; that the public postman invariably called every day for all letters, which were placed in a box for him in the room where the witness sat, and were taken from that box by the postman; and that the letter in question was made up in the usual course. And this was held competent evidence of sending the letter to the defendant. There was no other evidence that the letter was sent to the defendant by mail. There was nothing but usage to show that the letter ever left the plaintiffs' office, or that it ever reached the post-office; but the Queen's Bench held that usage was enough.

So, also, in Warren v. Warren, 1 C. M. R. 250, it is held, — "If a letter is sent by the post, it is prima facie proof, until the contrary be proved, that the party to whom it is addressed received it in due course."

So, in this country, the fact that a letter was put into the post-office raises a natural presumption, founded in common experience, that it reached its destination by the regular operations of the mail — Callan v. Gaylord, 3 Watts 321; and in Dana v. Kemble, 19 Pick. 114, it was held, that the usage at a hotel to deposit letters, directed to its guests, in an urn kept for that purpose, and from which they were regularly carried to the guests' rooms, was evidence that a guest had received a letter addressed to him, and left at the bar of the hotel. See Allen v. Blunt, 2 Woodb. M. 121.

The principle of the rule is founded upon the presumption (of law or fact) of the continuance of a state of things once shown to exist, — for example, a condition of mental sanity, by some courts regarded as a presumption of law, and even changing the burden of proof. The continuance of a usage, custom, or habit is analogous to the common law rule of evidence concerning the presumption of the continuance of a condition or state of things; and the question, how far the existence or non-existence of a particular fact is made to depend upon what is usual or habitual in similar conditions, is a question of the weight rather than the relevancy of evidence.

In state v. The M. L. Railroad, 52 N.H. 528, 549, it was held competent to show that the engineer and fireman of a train of cars, by which an accident at a highway crossing occurred, had sometimes passed the same crossing the preceding year without sounding the whistle or ringing the bell, as tending to show that the same men would be more likely to have neglected the performance of their duties upon the particular occasion in questions. The discussion was not maintained upon the ground of any peculiar circumstances of the case, but upon the broad principle, that" where a person is charged with negligently doing or omitting an act, and the evidence is conflicting, it may be competent to show that he had performed or omitted the same act in the same way before, as tending to show that he did or omitted the act at the time in question;" and it is said by the court (SARGENT, C. J.) — "It would seem to be axiomatic, that a man is more likely to do or not to do a thing, or to do it or not to do it in a particular way, as he is in the habit of doing or not doing it." And see Ashe v. Derosset, 8 Jones (N.C.) 240; Fuller v. Naugatuck R. R. Co., 21 Conn. 557; Hine v. Pomeroy, 39 Vt. 211; Kinne v. Ford, 52 Barb. 194; Robinson v. Fitchburg Railroad, 7 Gray 95, State v. Knapp, 45 N.H. 148, 156; State v. LaPage, 57 N.H. 245, 295; Lothrop v. Green, field Ins. Co., 2 Allen 82; Grand Trunk Railway v. Richardson,91 U.S. 454, 470.

It was competent to submit to the jury the question, whether the letter written by the defendants' clerk to the plaintiff's counsel was an offer of compromise, or all admission of a material fact — Bartlett v. Hoyt,33 N.H. 165, Field v. Tenney, 47 N.H. 513, 521, 522; and we can see no error in the instructions upon this point. The evidence concerning the instructions given the writer of the letter by the defendants was admissible, as tending to show the intention which governed their action in writing the letter, and whether it was intended as an admission, or as an offer to compromise. Graves v. Graves, 45 N.H. 323; Hale v. Taylor,45 N.H. 405; 1 Greenl. Ev., s. 277. A principal is not found by the unauthorized admissions of his agent, is others have not been misled thereby.

Judgment on the verdict.

STANLEY and BINGHAM, JJ., did not sit.