Where it appears that warnings which railroad employees failed to give after discovering a traveler in a position of danger might have enabled him to escape injury at a grade crossing, the question whether he was negligent in driving upon the track is immaterial. Evidence that a traveler injured at a grade crossing habitually listened for trains at that point is admissible to prove his care on the occasion in question, if his conduct as he approached the crossing is not fully disclosed.
PEASLEE, J.
The defence relied upon is that there was no evidence of care on the part of Mrs. Tyrrell; but it appears in evidence that even after she got in a dangerous situation the defendant's servants could have given warnings which they failed to, and that if these warnings had been given she might have escaped in safety. If the jury took this view of the facts, there would be no occasion to consider whether she was negligent in driving upon the track when and as she did.
Evidence of her habit of care is objected to upon the ground that her conduct is fully disclosed and therefore the evidence is inadmissible. The evidence of what she did or did not do as she approached the crossing does not cover all the time. The only eye-witness to the accident who was near her was occupied in closing a gate during the latter part of her approach to the crossing. He was then back to her, and, as he himself testified, she might have listened during this time. No other objection to the admission of the evidence was made; and as the record shows that this one is not supported by the testimony in the case, the exception must be overruled. It is therefore unnecessary to consider the argument advanced by the plaintiff to the effect that the admissibility of evidence of habit to prove action upon a particular occasion is not limited to cases where there is not direct proof of what was done.
Exceptions overruled.
YOUNG, J., did not sit: PLUMMER, J., was absent: the others concurred.