In an action for negligence, it is competent to show that the party charged therewith 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 is question.
A verdict will not be set aside on account of an error in the rulings or charge of the court at the trial term, if the result could not have been affected thereby.
BLODGETT, J.
Although it is quite generally held elsewhere in actions for negligence, that evidence of other specific instances of negligence on the part of either party is not competent, because raising a collateral issue, yet in this state a different rule prevails, and has become established in cases where the evidence is conflicting; and it is here held to be competent to show that the party charged with negligence 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, on the ground that a person is more likely to do a thing in a particular way, as he is in the habit of doing or not doing it. State v. M. L. R. R., 52 N.H. 528, 549, 550; Hall v. Brown, 58 N.H. 93, 96, 98; State v. Boston Maine R. R., 58 N.H. 410, 412; Nutter v. Boston Maine R. R., 60 N.H. 483. Hence there was no error in the admission of the evidence excepted to, but if the contrary were true, no cause is furnished for setting aside the verdict, for, notwithstanding its admission, the plaintiff prevailed. The verdict in his favor was necessarily a finding by the jury that the deceased was in the exercise of proper care at the time of the accident, or, at least, that his conduct was not the proximate cause of it, and therefore the plaintiff could not have been prejudiced by the testimony in question. When this is so, a verdict will not be disturbed on account of any error in the rulings or charge of the court below (Bassett v. Salisbury Mfg. Co., 28 N.H. 438, 457, and cases cited), and not ordinarily on account of even an erroneous ruling against the prevailing party. See Kingsley v. Holbrook, 45 N.H. 313, 323, and Graves v. Graves, 45 N.H. 324, per Sargent, J.
Judgment on the verdict.
CLARK, J., did not sit: the others concurred.