JBA.ACS 'V. SOUTHERN PAO.OQ.
797
ISAACS 'V. SOUTHERN PAC.
Co. ·
(Cfrcuit OOUrt, D. Orf!{1on. March 14, 1899.) . INJ1l'BT TO EMPLOYE-EvIDENOE.
In the trial at an action tor damages for personal injury occasioned by an accident to a bridge ona railway, it is error to admit evidence on the part of the plaintiJf going to show that in the reconstruction of the bridge longitudinal braces were used where none had been used before. . (Sytwb'U8 by the Oo'Urt.)
At Law. TUmanFord and Richard WiUiafll.8, for plaintiff. E. a. Bronaugh and W. D. Fenton, for defendant.
DEADY, District Judge. This action was brought by Grace G. Isaacs against the Southern Pacific Company to recover damages for personal injuries alleged to have been sustained in a railway accident, commonly known as the" Lake La Biche disaster." On the trial of the case the jury found a verdict for the plaintiff in the sum of $11,000. The d'efendant now moves to set aside the verdict, and for a new trial, because the court erred in admitting evidence on the part of the plaintiff as follows: It being shown and admitted that the bridge in question was originally constructed without braces, the plaintiff called Henry Rogers as a witness, and asked him if the defendant, in the teconstruction of the bridge, put in such braces; to which question the defendant objected, which objection was overruled by the court; and thereupon the defendant excepted, and the witness answered, "Yes." This ruling now appears, in the light of the authorities, to have been erroneous, and materially so. The effect of the evidence was to practically show an admission on the part of the defendant that the bridge was not properly or sufficiently constructed, without longitudinal braces, in the whereas, the use of them in the reconstruction might have been only out of abundance of caution in the light of the experience of the wreck. No authority has been shown in support of the ruling, and it is believed that none can be found, unless it be in the state of Pennsylva.nia. In the case of Nalley v. Carpet Co., 51 Conn. 524, the court said: "Tho fact that an accident has happened, and some person has been injured. immediately puts a party on a higher plane of diligence and duty, from which he acts with a view of preventing the possibility of a similar accident, which should operate to commend, rather than condemn, the person so act· ing. If the subsequent act is made to reflect back on the prior one, although it is done upon the theory that it is a mere admission. yet it Virtually intro.duces into the transaction a new element and test of negligence which has no business there, not being inexistence at the time. " In Morse v. Railroad Co., 30 Minn. 465,16 N. W. Rep. 358, the court overruled its former decisions on subject, and said:
in the Jangn'tge of the
"A person may have exercised all the care which the law required, and yet, In the light of hisnew experieuce,after an unexpected accident has occurred. and as a measure of extreme caution, he may adopt additional safeguards. The fegardhe has for the lives of others, the more likely he would 'be to do so, and it would seem unjust that he could not do so without being liable to have such actscoustrned ItS an prior nllgligenee; ,We thinksUl'h a rule puts a,n 'hn1'air inter"irtualJy ,holds out an itilfucement for continued negligence." In Railroad Co. v. Clem, (Ind. Sup.) 23 N. E. Rep. 965, it was held,
"In an action againstarailway,companyfor injury caused by alll'ged nl'gligence in tht! constructioll of its road, evidl'nce that after the accident the company changed and repaired its road is inadmissible to show neg!igence."
In Lang v. Sanger, (Wis.) 44 N. W. Rep. 1095, it was,beld that in RO;a<;tion fQr injuries alleged to have been received through the dangerous,cotiditiQn of a gl,lngway in the defEmdant'el saw-mill, evidence that after the 89cident defendant made repairs is inadmissible. The admission of the evidence over ,the objection of the defendant appears!to have been erroneous, both on principle and authority. The jury were led to believe by it that the bridgo ought to have been constructed with such braces originally. and that the omission to do so was negligence, which contributed to the result. The motion is allowed, and the verdict set aside. In the light of the former trial, this case ought to be settled by the parties, and doubtless will,and thereby save the expensJland labor, of a new .trial.
EDDY 6t
al.
tI. LAFAYETTE
et aI.
(OircuU Court of .Appeals. Eighth Circuit. February 15, 1899.) 1. 2. RULRO.lD COJIPANIES-KILLING STOCI-PRESUMl'TION OJ!' NEGLIGENCE.
In the absence of a statutory rule to that effect, the law. does not presume negll. gence from thefaot alone that stock was injured or killed by a railroad company. . '
SAME-LAWS IN INDIAN TERRITORY.
The statute of Arkansas, which changed the common-law rule by providing that the mere fact of injury or killing of stock by a railroad company shall ba prima jac#,e of negligenqe, was not put in force in the Indian Territory by Act Congo May 1800, S81, (26 St. p. 81.)
In Error to the United States Court in the Indian'l'erritory. Action by Ben F. Lafayette and Moses against George A. Eddy and· H. C. Cross, as receivers of the Missouri. Kansas & Texas Railway Company, to recover for stock killed on defendants' railroad. Verdict ana judgment for plaintiffs. Defendants 'brought this writ of error. Reversed. . ' Clifford L.JackBon, for plaintiffs in error. W. To Hutching8, for defendants in error.