Commentaries on the Law of Negligence in All Relations

reasons supporting the principle are thus stated: "We think, however, that such evidence does not tend to prove that the party sued knew, or was bound to know, that the machine or structure was imperfect, unsafe or out of repair. After an accident has happened it is ordinarily easy to see how it could have been avoided; and then for the first time it frequently happens that the owner receives his first intimation of the defective or dangerous condition of the machine or structure which caused or led to the accident. Such evidence has no tendency whatever, we think, to show that the machine or structure was not previously in a reasonably safe and perfect condition or that the defendant ought, in the exercise of reasonable care and diligence, to have made it more perfect, safe and secure. While such evidence has no legitimate bearing upon the defendant's negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence

Rep. 895; Dillon v. Raleigh, 124 N. C. 184; s. c. 32 S. E. Rep. 548; Lowe v. Elliott, 109 N. C. 581; s. c. 14 S. E. Rep. 51; Baird v. Daly, 68 N. Y. 547; Clapper v. Waterford, 131 N. Y. 382; s. c. 43 N. Y. St. Rep. 316; 30 N. E. Rep. 240; rev'g s. c. 62 Hun (N. Y.) 170; 41 N. Y. St. Rep. 804; 16 N. Y. Supp. 640; Corcoran v. Peekskill, 108 N. Y. 151; s. c. 15 N. E. Rep. 309; Getty v. Hamlin, 127 N. Y. 636; s. c. 37 N. Y. St. Rep. 141; 27 N. E. Rep. 399; Morrell v. Peck, 24 Hun (N. Y.) 37; Aldrich v. Concord &c. R. Co., 67 N. H. 250; s. c. 8 Nat. Corp. Rep. 418; 29 Atl. Rep. 408; 58 Am. & Eng. R. Cas. 611; Cleveland Provision Co. v. Limmermaier, 8 Ohio C. C. 701; s. c. 1 Ohio Dec. 145; Root v. Monroeville, 16 Ohio C. C. 457; Baron v. Reading Iron Co., 202 Pa. St. 274; s. c. 51 Atl. Rep. 979; Derk v. Northern &c. R. Co., 164 Pa. St. 243; s. c. 30 Atl. Rep. 231; Elias v. Lancaster, 203 Pa. St. 638; s. c. 53 Atl. Rep. 507; McGarr v. National &c. Worsted Mills, 24 R. I. 447; s. c. 53 Atl. Rep. 320; 60 L. R. A. 122; Morancy v. Hennessey, 24 R. I. 205; s. c. 52 Atl. Rep. 1021; Fordyce v. Chancy, 2 Tex. Civ. App. 24; s. c. 21 S. W. Rep. 181; Fordyce v. Withers, 1 Tex. Civ. App. 540; s. c. 20 S. W. Rep. 766; Galveston &c. R. Co. v. Briggs, 4 Tex. Civ. App. 515; s. c. 23 S. W. Rep. 503; Gulf &c. R. Co. v. Darby. 28 Tex. Civ. App. 413; s. c. 67 S. W. Rep. 446; Gulf &c. R. Co. v. Haskell, 4 Tex. Civ. App. 550; s. c. 23 S. W. Rep. 546; St. Louis &c. R.

Co. v. Jones (Tex.), 14 S. W. Rep. 309; Texas Trunk R. Co. v. Ayres, 83 Tex. 268; s. c. 18 S. W. Rep. 684; Columbia &c. R. Co. v. Hawthorne, 144 U. S. 202; s. c. 36 L. ed. 405; 20 Wash. L. Rep. 252; 12 Sup. Ct. Rep. 591; Bell v. Washington CedarShingle Co., 8 Wash. 27; s. c. 35 Pac. Rep. 405; Anderson v. Chicago &c. R. Co., 87 Wis. 195; s. c. 58 N. W. Rep. 79; 23 L. R. A. 203; Castello v. Landwehr, 28 Wis. 522; Green v. Ashland Water Co., 101 Wis. 258; s. c. 77 N. W. Rep. 722; 43 L. R. A. 117; 5 Am. Neg. Rep. 265; Krieder v. Wisconsin River Paper &c. Co., 110 Wis. 645; s. c. 86 N. W. Rep. 662; Greenville Oil &c. R. Co. v. Davenport (Tex. Civ. App.), 37 S. W. Rep. 624 (no off. rep.); Missouri &c. R. Co. v. Wylie (Tex. Civ. App.), 26 S. W. Rep. 85 (no off. rep.); Gulf &c. R. Co. v. Dunlap (Tex. Civ. App.), 26 S. W. Rep. 655 (no off. rep.); Cole v. Canadian &c. R. Co., 20 Occ. N. 103; s. c. 19 Ont. Prac. Rep. 104. But see St. Louis &c. R. Co. v. Weaver, 35 Kan. 412; Atchison &c. R. Co. v. McKee, 37 Kan. 592; s. c. 15 Pac. Rep. 484; Lederman v. Pennsylvania R. Co., 165 Pa. St. 118; s. c. 35 W. N. C. (Pa.) 502; 12 Lanc. L. Rev. 65; 30 Atl. Rep. 725; Link v. Philadelphia &c. R. Co., 165 Pa. St. 75; s. c. 36 W. N. C. (Pa.) 21, 24; 30 Atl. Rep. 820, 822; Austin &c. R. Co. v. Flanagan (Tex. Civ. App.), 40 S. W. Rep. 1043 (no off. rep.); Jenkins v. Hooper Irrigation Co., 13 Utah 100; s. c. 4 Am. & Eng. Corp. Cas. (N. S.) 25; 44 Pac. Rep. 829.

the minds of the jury." Like reasons would prevent the introduction of evidence of the discharge of an employé who participated in the alleged negligent act.42 Evidence of this character is admissible, however, for other purposes,-as, for example, to rebut evidence that conditions had not changed since the happening of the accident;43 or, in the case of sidewalk injuries, to rebut evidence of the defendant that the sidewalk was in good repair before, at and after the accident.** So, evidence that the use of signal flags by a railroad company was commenced after the accident in question occurred, is admissible in rebuttal of testimony that flags were kept for use by employés before and after the accident. So, where a railroad employé was injured by the roof of a projecting building, and the company introduced evidence to show that such projection of the roof was necessary in the construction of the building, it was held proper on cross-examination to ask whether a change was made in the roof after the accident.46 So, where a section of the pavement containing the hole causing the injury was introduced, evidence that the hole had been partly filled with gravel after the injury was admitted to show that the pavement was not in the same condition as when the accident occurred. So, proof that new blocking was placed in a railroad frog immediately after an accident to an employé, was held admissible upon the question whether any blocking was there at the time of the accident as required by the statute, although not admissible to show that any blocking which was there was defective.48 So, in an action against a railroad company for injuries to an employé, because of ice floated upon its track at a place alleged to have been of an improperly low grade, evidence that the grade was raised a foot after the accident was held admissible to show the height of the grade at the time of the accident. In like manner, evidence that a bridge was repaired by the county after an accident is admissible to show that the county had accepted and adopted it as a part of the highway, where that is a controverted question in the case.50 So, in an action to recover for injuries by fire, evi

41 Earl, J., in Corcoran v. Peekskill, 108 N. Y. 151; s. c. 15 N. E. Rep. 309.

42 Christensen

V. Union Trunk Line, 6 Wash. 75; s. c. 32 Pac. Rep. 1018.

43 Chicago &c. R. Co. v. Barnes, 10 Ind. App. 460; s. c. 38 N. E. Rep. 428; Fordyce v. Moore (Tex. Civ. App.), 22 S. W. Rep. 235 (no off. rep.); Virginia &c. Wheel Co. v. Chalkley, 98 Va. 62; s. c. 34 S. E. Rep. 976.

"Parker v. Ottumwa, 113 Iowa 649; s. c. 85 N. W. Rep. 805; Bond

Hill v. Atkinson, 16 Ohio C. C. 470; s. c. 9 Ohio C. D. 185.

45 International &c. R. Co. v. Hall, 1 Tex. Civ. App. 221; s. c. 21 S. W. Rep. 1024.

40 Gulf &c. R. Co. v. Darby, 28 Tex. Civ. App. 413; s. c. 67 S. W. Rep. 446.

47 Christian V. Minneapolis, 69 Minn. 530; s. c. 72 N. W. Rep. 815. 48 Craig v. Lake Erie &c. R. Co. (U. S.), 35 Ohio L. B. 15.

dence that, after the fire, the defendant caused fire breaks to be constructed on both sides of its track, as the statute requires they shall be constructed along the line of the right of way, has been held admissible to show what right of way had been in use by the defendant.51 So, in an action to recover for injuries caused by an obstruction in a city street, evidence that such obstruction has been removed since the accident, was admitted to show that the obstruction was unnecessary.52 But in all these cases the evidence is admitted solely for the purpose indicated and not to show previous negligence.53

§ 7872. Evidence of Similar Accidents or Long Use Without Accident. The decisions on the question of the admissibility of evidence of former accidents at the same place are not harmonious. The better rule regards such evidence as not admissible to prove negligence at the time in question, though allowing such evidence on the question of notice. The objection to this character of evidence is that it raises distinct and collateral issues and is of little, if any, probative value without a knowledge of all the facts and conditions at such other times, and is generally unnecessary because the facts in regard to the conditions and circumstances at the time in question are usually susceptible of direct proof.55 Evidence of this character is very properly admitted

App. 574; s. c. 36 N. E. Rep. 216; Skottowe v. Oregon &c. R. Co., 22 Or. 430; s. c. 16 L. R. A. 593; 30 Pac. Rep. 222; 12 Rail. & Corp. L. J. 112 (admissible to show ownership or control over place of injury).

51 Young v. Great Northern R. Co., 8 N. D. 345; s. c. 79 N. W. Rep. 448. 62 Dillon v. Raleigh, 124 N. C. 184; s. c. 32 S. E. Rep. 548.

63 Langworthy v. Green Twp., 88 Mich. 207; s. c. 50 N. W. Rep. 130; International &c. R. Co. v. Hall, 1 Tex. Civ. App. 221; s. c. 21 S. W. Rep. 1024; Virginia &c. Wheel Co. v. Chalkley, 98 Va. 62; s. c. 34 S. E. Rep. 976.

54 Woelfel Leather Co. v. Thomas, 68 Ill. App. 394; Langhammer v. Manchester, 99 Iowa 295; s. c. 68 N. W. Rep. 688; Dean v. Murphy, 169 Mass. 413; s. c. 48 N. E. Rep. 283; Hatt v. Nay, 144 Mass. 186; s. c. 4 N. Eng. Rep. 173; 10 N. E. Rep. 807; Baltimore Elevator Co. v. Neal, 65 Md. 438; McNally v. Colwell, 91 Mich. 577; s. c. 52 N. W. Rep. 70; Cowley v. Colwell, 91 Mich. 537; s. c. 52 N. W. Rep. 73; Cohn v. New York &c. R. Co., 6 App. Div. (N. Y.) 196; s. c. 39 N. Y. Supp.

986; Brady v. Manhattan R. Co., 127 N. Y. 46; s. c. 37 N. Y. St. Rep. 340; 27 N. E. Rep. 368; Gillrie v. Lockport, 122 N. Y. 403; s. c. 33 N. Y. St. Rep. 636; 25 N. E. Rep. 357; Morrow V. Westches

ter Elec. R. Co., 172 N. Y. 638; S. c. 65 N. E. Rep. 1119; Lake Shore &c. R. Co. v. Gaffney, 9 Ohio C. C. 32; s. c. 2 Ohio Dec. 212; Davis v. Oregon &c. R. Co., 8 Or. 172; St. Louis &c. R. Co. v. Craigo, 10 Tex. Civ. App. 238; s. c. 31 S. W. Rep. 207. Evidence in an action against an elevator proprietor by one who was injured by the sudden closing of the door while endeavoring to enter the car, that prior to the accident the superintendent of the building had complained to the proprietor's president, and that at least one other person had been previously caught by the door in substantially the same way, is admissible to show that the proprietor had been warned of the dangerous character of the elevator: Auld v. Manhattan Life Ins. Co., 34 App. Div. (N. Y.) 491; s. c. 54 N. Y. Supp. 222.

55 Blair v. Pelham, 118 Mass. 420; Marvin v. New Bedford, 158 Mass.

the minds of the jury."41 Like reasons would prevent the introduction of evidence of the discharge of an employé who participated in the alleged negligent act.12 Evidence of this character is admissible, however, for other purposes,-as, for example, to rebut evidence that conditions had not changed since the happening of the accident; or, in the case of sidewalk injuries, to rebut evidence of the defendant that the sidewalk was in good repair before, at and after the accident.“ So, evidence that the use of signal flags by a railroad company was commenced after the accident in question occurred, is admissible in rebuttal of testimony that flags were kept for use by employés before and after the accident. So, where a railroad employé was injured by the roof of a projecting building, and the company introduced evidence to show that such projection of the roof was necessary in the construction of the building, it was held proper on cross-examination to ask whether a change was made in the roof after the accident." So, where a section of the pavement containing the hole causing the injury was introduced, evidence that the hole had been partly filled with gravel after the injury was admitted to show that the pavement was not in the same condition as when the accident occurred. So, proof that new blocking was placed in a railroad frog immediately after an accident to an employé, was held admissible upon the question whether any blocking was there at the time of the accident as required by the statute, although not admissible to show that any blocking which was there was defective. So, in an action against a railroad company for injuries to an employé, because of ice floated upon its track at a place alleged to have been of an improperly low grade, evidence that the grade was raised a foot after the accident was held admissible to show the height of the grade at the time of the accident. In like manner, evidence that a bridge was repaired by the county after an accident is admissible to show that the county had accepted and adopted it as a part of the highway, where that is a controverted question in the case." 50 So, in an action to recover for injuries by fire, evi

Earl, J., in Corcoran v. Peekskill, 108 N. Y. 151; s. c. 15 N. E. Rep. 309.

42 Christensen V. Union Trunk Line, 6 Wash. 75; s. c. 32 Pac. Rep. 1018.

"Parker v. Ottumwa, 113 Iowa 649; s. c. 85 N. W. Rep. 805; Bond

Hill v. Atkinson, 16 Ohio C. C. 470; s. c. 9 Ohio C. D. 185.

45 International &c. R. Co. v. Hall, 1 Tex. Civ. App. 221; s. c. 21 S. W. Rep. 1024.

46 Gulf &c. R. Co. v. Darby, 28 Tex. Civ. App. 413; s. c. 67 S. W. Rep. 446.

47 Christian V. Minneapolis, 69 Minn. 530; s. c. 72 N. W. Rep. 815. 48 Craig v. Lake Erie &c. R. Co. (U. S.), 35 Ohio L. B. 15.

49 Scagel v. Chicago &c. R. Co., 83 Iowa 380; s. c. 49 N. W. Rep. 990. 50 Shelby County v. Blair, 8 Ind.

dence that, after the fire, the defendant caused fire breaks to be constructed on both sides of its track, as the statute requires they shall be constructed along the line of the right of way, has been held admissible to show what right of way had been in use by the defendant.5: So, in an action to recover for injuries caused by an obstruction in a city street, evidence that such obstruction has been removed since the accident, was admitted to show that the obstruction was unnecessary.52 But in all these cases the evidence is admitted solely for the purpose indicated and not to show previous negligence.53

51 Young v. Great Northern R. Co., 8 N. D. 345; s. c. 79 N. W. Rep. 448. 52 Dillon v. Raleigh, 124 N. C. 184; s. c. 32 S. E. Rep. 548.

53 Langworthy v. Green Twp., 88 Mich. 207; s. c. 50 N. W. Rep. 130; International &c. R. Co. v. Hall, 1 Tex. Civ. App. 221; s. c. 21 S. W. Rep. 1024; Virginia &c. Wheel Co. v. Chalkley, 98 Va. 62; s. c. 34 S. E. Rep. 976.

986; Brady v. Manhattan R. Co., 127 N. Y. 46; s. c. 37 N. Y. St. Rep. 340; 27 N. E. Rep. 368; Gillrie v. Lockport, 122 N. Y. 403; s. c. 33 N. Y. St. Rep. 636; 25 N. E. Rep. 357; Morrow V. Westchester Elec. R. Co., 172 N. Y. 638; S. C. 65 N. E. Rep. 1119; Lake Shore &c. R. Co. v. Gaffney, 9 Ohio C. C. 32; s. c. 2 Ohio Dec. 212; Davis v. Oregon &c. R. Co., 8 Or. 172; St. Louis &c. R. Co. v. Craigo, 10 Tex. Civ. App. 238; s. c. 31 S. W. Rep. 207. Evidence in an action against an elevator proprietor by one who was injured by the sudden closing of the door while endeavoring to enter the car, that prior to the accident the superintendent of the building had complained to the proprietor's president, and that at least one other person had been previously caught by the door in substantially the same way, is admissible to show that the proprietor had been warned of the dangerous character of the elevator: Auld v. Manhattan Life Ins. Co., 34 App. Div. (N. Y.) 491; s. c. 54 N. Y. Supp. 222.

55 Blair v. Pelham, 118 Mass. 420; Marvin v. New Bedford, 158 Mass.

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Commentaries on the Law of Negligence in All Relations: (including a ...