Dallas Railway & Terminal Co. v. Farnsworth
148 Tex. 584, 227 S.W.2d 1017 (1950)

Action for damages on account of injuries suffered by respondent, Mrs. Letta M. Farnsworth, when struck by petitioner's streetcar immediately after she had alighted from it.

Respondent, a widow, fifty-two years of age, became a passenger, together with her thirty year old daughter and three year old grandson, on petitioner's streetcar to travel from South Lamar Street to the corner of Elm and St. Paul Streets, a distance estimated by the operator of the streetcar to be approximately one mile and by respondent approximately three or four miles. Traveling east on Elm Street, the car stopped when it arrived at St. Paul Street. At that place the car tracks do not extend farther on Elm Street, but turn to the left and north on St. Paul Street. Although respondent had been a passenger on streetcars in Dallas and in other places oftentimes over many years, she had never been on a streetcar on Elm Street and did not know that the car turned to the left at St. Paul Street, and did not look at the tracks ahead of the car, and she had never observed that the rear end of a streetcar would swing out as the car went around a curve and did not know that it would.

Eight or ten passengers alighted from the streetcar at its front door. According to respondent's testimony all of the others were ahead of respondent, her daughter and grandchild, respondent being the last passenger to alight. She testified that just as she stepped off the streetcar step within the safety zone the traffic light which she was facing and in the direction that she intended to go, that is, to the south, changed to red, and that before she had time to take a step, almost instantaneously, she was struck and knocked down by the streetcar.

The operator of the streetcar testified that as he closed the door of the car immediately before starting he looked to his right, saw that the door was clear, and saw no one within reach of the door or within reach of the overhang of the streetcar, and that there was no one "at the point of my front door within the overswing zone''; and that after he closed the door and started the streetcar he never looked back to his right or to the back of the streetcar, his attention being given to watching the traffic traveling west on Elm Street and the pedestrians who were crossing St. Paul Street. His testimony shows that he knew nothing about the accident until he had traveled to the end of the line and returned to Elm and Ervay Streets, where he was told of it by the company's supervisor.

Respondent was permitted to testify, over objections, that when she entered the streetcar on Lamar Street the operator started the car before she could get to a seat and was in a great hurry, that he stopped at Lamar and Young Streets and passengers "scarcely got off before he started,'' and that the same was true at Lamar and Main Streets. This testimony when first considered may appear to be forbidden by the general rule that "when the question is whether or not a person has been negligent in doing or in failing to do a particular act, evidence is not admissible to show that he has been guilty of a similar act of negligence or even habitually negligent upon a similar occasion.'' The reason for the rule is the fundamental principle that evidence must be relevant to the facts in issue in the case on trial and tend to prove or disprove those facts, evidence as to collateral facts not being admissible. There are some modifications of the general rule as applied to particular cases. It has been said that evidence of similar transactions or conduct on other occasions is not competent to prove the commission of a particular act charged "unless the acts are connected in some special way, indicating a relevancy beyond mere similarity in certain particulars.''

Should the evidence of the operator's prior conduct be admitted? Can this case be reconciled with Phinney? What does the court have in mind by "unless the acts are connected in some special way, indicating a relevancy beyond mere similarity in certain particulars''? Does the admissibility of evidence of similar occurrences in civil cases depend on the way counsel packages it?


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