The opinion
HINCKS, Circuit Judge
(concurring). Over objection evidence was received that on one occasion “within a period of several months before April 11,1949” the defendant shifted 75 maintenance workers, on whom it relied for clean-up as well as maintenance work, from the Oak Point Yard to Van Ness, leaving 4 or 5 at Oak Point. Neither then nor thereafter was evidence offered that the number left at Oak Point was at any time inadequate for clean-up as well as maintenance tasks. This evidence, standing by itself, I think inadequate to prove the “habit” or “custom” of the defendant. As Wigmore noted, § 376, even in jurisdictions which admit evidence of habit, prior instances to have probative effect, must be shown not only to be numerous enough to furnish ground for inference but also “to have occurred under substantially similar circumstances so as to be naturally accountable for by a system only, and not as casual recurrences.”
Moreover, in my opinion, this evidence had no probative force whatever in support of the appellant’s contention that the defendant was negligent in the discharge of its duty to keep the yard reasonably safe for its workers. However, the evidence was admitted subject to connection. That ruling, I think, was not erroneous: for aught that then appeared, *56 the evidence might later have been supplemented by evidence of further similar instances and, more important, by evidence that a working force of only 4 or 5 employees was inadequate to keep the Oak Point yard reasonably free from dangerous litter. At the time the evidence was received, appellant’s counsel sought no promise by opposing counsel that it would subsequently be connected, nor at the close of the evidence, when it was apparent that no connecting evidence had been offered, did he move to strike. These factors considered, I think that the appellant is not entitled to complain of any prejudice resulting from the admission of this evidence.
As to all other claims of error I have no disagreement with my brothers.