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customary for manufacturing corporations to carry such insurance, covering even the negligence of themselves and their employees. They do it simply as a matter of business policy, and the fact has little or no tendency to prove negligence in a particular instance.
§ 19. Prejudicial evidence. It is a natural inclination of lawyers, especially in jury cases, to introduce matters which, whether or not they relate closely to the issues, may influence the jury in favor of their client. In the arguments of counsel, which are given a rather wide latitude, this tendency is especially manifest. The ends of justice are, however, usually subserved, if prejudicial matter is kept out of the evidence, because the jury are instructed that argument is not evidence and should be disregarded, except in so far as it is based upon the evidence, and they usually grasp this idea. Just because of this fact, it is of the highest importance that the evidence be kept fair and that the requirement of a close relation between the evidence and the issues be enforced. The task is by no means easy. The lawyer, prosecuting a personal injury suit against a corporation, will attempt by every means in his power to inject evidence of the plaintiff's poverty and the defendant's wealth, hoping that the jury, out of compassion, will award his client something in the verdict without much regard to his deserts. Yet all such considerations should be and usually are sternly excluded from the evidence. It is the jury's duty, in personal injury cases, not to give away other people's money to the unfortunate, but to decide when money is due for the redress of wrongs. The decision obviously will be correct, only when it is based on
the facts of the alleged injury, and not on collateral fects disturbing to the judgment.
§ 20. Same: Illustrations. Thus, in an action for injuries to a pedestrian from a street-car, testimony was given that it was a good thing that the motorman did not get out of the car after it stopped, as otherwise he would have been mobbed. But on appeal the decision was reversed, because the admission of this evidence was improper (5). The animosity of bystanders toward the motorman had, of course, a slight tendency to show that he was in the wrong, but very slight, because probably few or none of them had actually observed the circumstances of the accident; and, such is the mob spirit, that rumor or the denunciation of a single man might account for the hostility of the whole excited crowd. Without showing, therefore, whether the injury was really the fault of the motorman, for which the company would be liable, such testimony would give the jury the impression that the motorman was guilty, and therefore would be highly prejudicial to the company.
In another case a man was on trial for murder. killing was admitted and there was no evidence of selfdefense, but the defendant's counsel attempted to show that the deceased was a man of violent and dangerous character and had threatened the defendant. The evidence was excluded (6) because threats, even when made by a dangerous man, do not justify another in killing him. One may kill in self-defense, only when in imminent peril
(5) Waddell v. Metropolitan St. Ry. Co., 113 Mo. App. 680. (6) State v. Byrd, 121 N. C. 684.
of life or limb and, when no actual attack is shown or no immediate danger of attack, no evidence of hot temper or general threats by the victim is sufficient. Therefore, while such testimony would have only a slight logical bearing on the case, if any, it might result in the unmerited acquittal of the defendant by giving the impression that he had rid the world of a bad man.
§ 21. Evidence of similar facts. We have thus seen that evidence to be admissible should bear in a fairly direct way upon the issues, and that it is to be scrutinized with special care where it is likely to excite the emotions or prejudices. Questions very often arise as to the admissibility of matters similar to the matter in issue and yet distinct from it. X is charged with speeding his automobile on A street, near B street; testimony is offered that on the same day he was exceeding the speed limit on H street, two miles away. Is it admissible? In general it may be said that evidence of similar acts or circumstances is not admissible, because, although there is a general similarity, there are too many differences to insure that what holds true in one case will apply in the other. Where, however, the analogy is so close that differences are practically eliminated, the evidence may be allowed. It certainly could not be shown, in the case put of the trial of X for speeding his automobile on A street, that he was speeding it two miles away, because everybody knows that the speed of automobiles is varied frequently, and the chance is practically just as great that X slowed down his machine in the two miles, as that he maintained the excessive speed. On the other hand, evidence that he was speeding the automobile
at another point in the same block might be admissible, provided there was no obstruction or change in the character of the street between the two points. There is at least a reasonable probability that, under such conditions, the driver would maintain the same speed throughout the block.
§ 22. Same: Illustrations. A similar distinction is illustrated by two actual cases of intoxication. In a suit for damages sustained by a collision with a street-car, evidence that the plaintiff was intoxicated on previous occasions was refused (7). Intoxication is not a constant condition, even with habitual drinkers. Such men vary between intoxication and sobriety, and evidence that the plaintiff was drunk at another time had only a slight tendency to sustain the defense that he was drunk, and so not in the exercise of due care, at the time of the accident. On the other hand, in a suit on a contract, testimony that, just previous to the time of executing it, the defendant had been drinking excessively, was held admissible (8) on the issue, whether he was drunk and irrational at the time of the signature. Everybody knows that the effect of excessive drinking does not pass off for some time, so that the testimony had a strong tendency to prove the defense for which it was offered.
There are countless other illustrations of the rule that the similarity must be close to permit evidence of similar facts. In condemnation cases, where the issue is the value of a particular piece of land, evidence of the value of land
(7) Shelby v. Brunswick Traction Co., 65 N. J. L. 639. (8) Rogers v. Warren, 75 Mo. App. 271.
of the same general character in the same vicinity is admissible, whereas the value of altogether different land is not. Thus, on the question of the value of land used for residence purposes, the value of land available for manufacturing is not proper, because values in the two cases are fixed by very different considerations. On the whole, the courts are rather liberal in admitting evidence of similar facts where land values are in issue, because, although there are always individual differences between different lots, evidence of the value of lots similar in a general way is usually the most certain evidence available, and the best that can be done is to take it, allowing approximately for the differences. This is true, however, only of unimproved land. When land is built upon, it cannot be taken as any criterion of the value of other land even adjoining, because, to determine how much of the value is in the land and how much in the improvements, would call for investigation in itself and thus complicate the issues. If the land is sold, apart from the buildings, the sale may be admissible; but otherwise, in fixing the value of a given piece of land by sales of similar land, the courts are limited to land which is unimproved.
§ 23. Evidence of similar facts in criminal cases. In criminal cases, where it is well known that it is the policy of our law to give ample protection to the rights of the accused person, evidence that the prisoner has committed one crime is inadmissible to show that he has committed another even of the same kind. In a New York case, one Sharp was charged with offering a bribe of $20,000 to a member of the city council, to induce him to vote for a