The injury of which the plaintiff complains was received by him on the 3d of July, 1871. He was at that time driving in his carriage in the city of Bridgeport, and in crossing the track of the defendants’ railroad, his carriage was broken, and he was thrown out, falling violently upon the sidewalk. The injury is alleged to have been owing to the negligence of the defendants in not keeping their road-bed and track in proper condition and repair.
The plaintiff offered evidence to prove that a great number of accidents, similar in character to the one complained of, commencing three years before, and terminating one year after that event, had happened, at or near the same place on the defendants’ road, without showing that such accidents came to the knowledge of the defendants’ company, and without showing the cause or manner of the accidents. The defendants objected to the admission of this testimony, but the court admitted it, subject to future consideration. In rendering final judgment in the case, the' court ruled out and rejected this testimony.
That this testimony was objectionable, as tending to raise collateral issues, and on various other grounds, need not perhaps now be discussed, as it was finally ruled out of the case. The defendants however insist that injustice has been done them by admitting this testimony, and allowing it to remain as evidence during the whole of a protracted trial, up to the moment of the final decision.
Courts must be allowed a discretion in the matter of admitting testimony, so far as the order of it is concerned. The safer rule generally is, to admit no testimony till the proper foundation for its admission has been laid. This rule however is by no means inexorable ; it must depend on. the exigencies of each particular case.
There is nothing apparent on this record going to show - that the plaintiff proposed to offer any testimony to make • *66this evidence admissible, or that he did offer, or that he attempted to offer, any such testimony. The time within which the accidents, as to which proof was offered, occurred, embraced a period of four years. As soon, at least, as the plaintiff had closed his testimony, and when, if ever, it was apparent that this testimony as to these accidents was inadmissible, we think it should have been ruled out. The defendants would not then have felt called upon to answer it, as by allowing it to remain in evidence they must have supposed it necessary to do. Thus a multitude of collateral questions were presented, distracting the minds of the court and counsel, and withdrawing their attention from the main issue. We cannot but regard this as very objectionable.
Nor is the effect of this testimony upon the mind of the judge, in reaching the decision pronounced on the merits, to be entirely disregarded. We cannot accede to the claim of the plaintiff, that the defendants could not have been injured by this testimony because it was ultimately rejected and ruled out. The operations of our minds are mysterious even to ourselves. We cannot always appreciate the influences which lead us to a result. No doubt the judge who tried the cause intended to disabuse his mind of any influence from this testimony. No doubt he was unconscious of being affected by it. Possibly he was not; still we do not deem it improbable that he was, especially when we look at the amount of damages assessed in the case, which seem to us unwarrantably large in view of the legitimate evidence.
The plaintiff claimed to recover damages not only for bodily injuries, and injuries affecting his health, but also for losses sustained in his profession, which was that of a physician and surgeon, by being thrown out of practice.
The defendants claimed that the professional practice of the plaintiff was illegitimate and unlawful, and, for the purpose of proving that claim, proposed certain questions to the plaintiff, which were objected to and excluded by the court. The defendants also introduced a witness of whom they asked, what was the reputation of Dr. Jacques as a physician in 1871, and thereafter, up to the time when he stopped busi*67ness, as to the lawfulness or unlawfulness of his practice. To this question the plaintiff objected, and the court excluded it.
As the plaintiff sought to recover damages on account of being disabled from practicing his profession, his reputation, as to the lawfulness or unláwfulncss of his practice, became a proper subject of inquiry. The value of that practice must have depended very largely upon that reputation. If his practice was unlawful, no matter how lucrative it might have been, the loss of it would lay no foundation for the recovery of damages. The questions put to the plaintiff, and also to the other witness, may not have been the best mode which could have been adopted for reaching the truth ; still we think the questions should not have been excluded. The plaintiff’s claim, in effect, put his professional reputation in issue and made these questions proper. The answers to them would tendeo throw light upon the subject which the defendants had a right, under the circumstances, to investigate.
To rebut evidence offered by the defendants, that no repairs had been made on their railroad track, at the place of the accident, from the time it happened, up to the time of trial, the plaintiff offered a witness, whom he asked to state if he knew what the condition of the turn-out was in June, 1871. This question, and the answer given to it, were objected to by the defendant, but admitted by the court. By way of rebuttal, and in that way only it seems to have been offered, this testimony was clearly inadmissible. Where a party has casually omitted to offer evidence in chief upon any point in his case, the court will doubtless allow him to supply the omission if justice demands it, or would seem to be promoted by it, even after the defendant had gone through with his case. The discretion of a court, when exercised on such questions, is not, ordinarily, a subject of revision. No great importance can, as we think, be attached to the testimony thus objected to, but in the particular form in which the question is presented on the record, it seems to us inadmissible.
We deem it unnecessary to discuss any other points which *68may have been alluded to in the course of the trial. Believing that the court erred in the several rulings and decisions which we have specified, and being clearly of opinion that injustice has been done in the amount of damages assessed, the motion for a new trial is granted.
In this opinion the other judges concurred.