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their judgment of what the party was bound to do, or was justified in doing, under all the circumstances of the case. What had been done by others previously, however uniform in mode it may be shown to have been, does not make a rule of conduct by which the jury are to be limited and governed. It is not to control the judgment of the jury, if they see that in the case under consideration it is not such conduct as a prudent man would adopt in his own affairs, or not such as a due regard to the obligations of those employed in the affairs of others would require them to adopt. It is evidence of what is proper and reasonable to be done, from which, together with all the other facts and circumstances of the case, the jury are to determine whether the conduct in question in the case before them was proper and justifiable. We think the instruction asked for, in this particular, was not such as should have been given.

The instruction asked for, to the effect that "the defendant was not obliged to make any outlay disproportionate to the compensation he received, to recover cattle that had strayed from the drove without his negligence," and therefore that the price he received was "to be taken into account" upon the question of due diligence, was inadmissible. The price is undoubtedly graduated by the well known risks of the business, and accepted in view of those risks. The obligation to seek the recovery of straying cattle does not rest upon the ground that that special service is paid for in the consideration of the original contract to which it is incident. It arises because it is incident to the principal contract, and, as such, is covered by its consideration. When an emergency occurs to bring that obligation into operation and make it onerous, he is not justified in any lack of faithful performance because in that particular event his compensation has proved inadequate to the burden.

The fifth instruction requested is correct, and unobjectionable, if taken to mean only that the jury must find both neglect and that the loss occurred by reason of such neglect. But that instruction was, in effect, given. To have given it in the form asked was unnecessary; and might mislead, by seeming to require the jury to determine, with too much precision, to which particular act or omission the loss should be attributed, when they might think there were several which co-operated to produce the result.

The instruction given as to examining all the defendant's conduct in relation to the cattle, "in order to ascertain whether at any point. of time to which their attention had been called he had been guilty of any negligence," could not have been understood to authorize the jury to render a verdict against the defendant on account of any such negligence, unless they also found that the loss was occasioned thereby, as he had already instructed them.

Upon the whole case the court are of opinion that there is no sufficient ground shown for setting aside the verdict.

Exceptions overruled.

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IV. Subsequent Acts of Precaution

COLUMBIA & P. S. R. CO. v. HAWTHORNE.

(Supreme Court of the United States, 1892. 144 U. S. 202, 12 Sup. Ct. 591, 36 L. Ed. 405.)

This was an action brought in a district court of the territory of Washington against a corporation owning a saw-mill, by a man employed in operating a machine therein, called a "trimmer," to recover damages for the defendant's negligence in providing an unsafe and defective machine, whereby one of the pulleys, over which ran the belt transmitting power to the saw, fell upon and injured the plaintiff. The defendant denied any negligence on its part, and averred negligence on the part of the plaintiff.

At the trial, the plaintiff introduced evidence tending to show that the pulley, weighing about 50 pounds, revolved around a stationary shaft made of gas-pipe, with nothing to hold the pulley on but a common cap or nut screwed on the end of the pipe, and its thread running in the same way as the pulley, and liable to be unscrewed by the working of the pulley; that the nut became unscrewed, and came off, so that the pulley fell upon and greatly injured the plaintiff; and that if the nut had been properly put on, with a bolt through the shaft, the accident could not have happened.

The plaintiff's counsel asked a witness whether there had been any change in the machinery since the accident. Thereupon the following colloquy took place:

Defendant's Counsel: "We object to that. The rule is well understood, and as your honor has already given it in other cases, that a person is not bound to furnish the best known machinery, but to fur-nish machinery reasonably safe. It is not a question as to what we have done with the machinery in the last few years or months since the accident occurred, but what was the condition then."

The Court: "The rule is quite well settled, I think, that where an accident occurs through defective machinery or defective fixtures or the machine itself, if that is shown to be true, then a change, repair, or substitution of something else for the defective machinery is admissible as showing or tending to show the fact. I think that is quite well settled."

Defendant's Counsel: "I thoroughly concur with the court as to the rule."

Plaintiff's Counsel: "We propose to show changes."

The Court: "I think it is admissible."

• For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 111.

Defendant's Counsel: "We will save an exception."

The Court: "Exception allowed."

The witness then answered that there had been changes since the accident, and that they consisted in putting a rod through the shaft, and gammon nuts on the end of the rod to keep the pulleys on, and in putting up some planks underneath the pulleys to keep them from falling down. To the admission of the evidence of each of these changes an exception was taken by the defendant and allowed by the judge.

At the close of all the evidence for the plaintiff (which it is unnecessary to state) the defendant moved "for a judgment of nonsuit, on the ground that the plaintiff had failed to prove a sufficient cause for the jury;" and an exception to the overruling of this motion was taken by the defendant and allowed by the court.

The defendant then introduced evidence, and the case was argued by counsel, and submitted by the court to the jury, who returned a verdict of $10,000 for the plaintiff, upon which judgment was rendered. The defendant appealed to the supreme court of the territory, which affirmed the judgment. 3 Wash. T. 353, 19 Pac. 25. The defendant sued out this writ of error.

Mr. Justice GRAY,' after stating the facts in the foregoing language, delivered the opinion of the court. * * *

This writ of error, therefore, directly presents for the decision of this court the question whether, in an action for injuries caused by a machine alleged to be negligently constructed, a subsequent alteration or repair of the machine by the defendant is competent evidence of negligence in its original construction.

Upon this question there has been some difference of opinion in the courts of the several states; but it is now settled, upon much consideration, by the decisions of the highest courts of most of the states in which the question has arisen, that the evidence is incompetent, because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant. Morse v. Railway Co., 30 Minn. 465, 16 N. W. 358; Corcoran v. Peekskill, 108 N. Y. 151, 15 N. E. 309; Nalley v. Carpet Co., 51, Conn. 524, 50 Am. Rep. 47; Ely v. Railway Co., 77 Mo. 34; Railway Co. v. Hennessey, 75 Tex. 155, 12 S. W. 608; Railroad Co. v. Clem, 123 Ind. 15, 23 N. E. 965, 7 L. R. A. 588, 18 Am. St. Rep. 303; Hodges v. Percival, 132 Ill. 53, 23 N. E. 423; Lombar v. Village of East Tawas, 86 Mich. 14, 48 N. W. 947; Shinners v. Proprietors, 154 Mass. 168, 28 N. E. 10, 12 L. R. A. 554, 26 Am. St. Rep. 226. As was pointed out by the court in the last case, the decision in

7 A portion of the opinion is omitted.

Readman v. Conway, 126 Mass. 374, 377, cited by this plaintiff, has no bearing upon this question, but simply held that in an action for injuries from a defect in a platform, brought against the owners of the land, who defended on the ground that the duty of keeping the platform in repair belonged to their tenants, and not to themselves, the defendants' acts in making general repairs of the platform after the accident "were in the nature of admissions that it was their duty to keep the platform in repair, and were therefore competent."

The only states, so far as we are informed, in which subsequent changes are held to be evidence of prior negligence, are Pennsylvania and Kansas, the decisions in which are supported by no satisfactory reasons. McKee v. Bidwell, 74 Pa. 218, 225, and cases cited; Railway Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176.

The true rule and the reasons for it were well expressed in Morse v. Railway Co., above cited, in which Mr. Justice Mitchell, delivering the unanimous opinion of the supreme court of Minnesota, after referring to earlier opinions of the same court the other way, said: "But, on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances, and that the rule heretofore adopted by this court is on principle wrong; not for the reason given by some courts, that the acts of the employés in making such repairs are not admissible against their principals, but upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he 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 acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence." 30 Minn. 465, 468, 16 N. W. 358, 359.

The same rule appears to be well settled in England. In a case in which it was affirmed by the court of exchequer, Baron Bramwell said: "People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before." Hart v. Railway, 21 Law T. (N. S.) 261, 263.

As the incompetent evidence admitted against the defendant's exception bore upon one of the principal issues on trial, and tended to prejudice the jury against the defendant, and it cannot be known how much the jury were influenced by it, its admission requires that the

judgment be reversed, and the case remanded to the supreme court. of the state of Washington, with directions to set aside the verdict. and to order a new trial.

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V. Other Acts of Defendant

8

VEIT v. CLASS & NACHOD BREWING CO.

co.

(Supreme Court of Pennsylvania, 1906. 216 Pa. 29, 64 Atl. 871,
116 Am. St. Rep. 757.)

Action by Katherine Veit against the Class & Nachod Brewing Company. Judgment for defendant, and plaintiff appeals.

At the trial Albert Schlayer, chief engineer of the defendant, testified that immediately after the explosion which killed the deceased, he found that the regulator on the steam pump had been plugged with a large nail, that the safety valve had been tied down with a rope, and that extra weight had been placed on the lever. He also testified that the deceased was head cellar man employed in pumping beer. Under objection and exception the witness was permitted to testify as follows: "Q. Had you ever given him any instructions as to the use of that pump in his branch of the business? A. I warned him what could happen to him if he did certain things. Q. Tell me what you said to him and what took place. A. I warned him that if he ever put that plug in it would kill somebody. (Objected to. Objection overruled.) Q. Go on. A. I answered it. I warned him, having caught him putting this plug in on previous times twice. Q. When was the last time? A. Some time previous to the accident. Q. A few days? A. No; longer than that. It must have been a month or two. Q. What did he say? A. Well, he said he was in a hurry. and wanted to get done. I told him that if it occurred a second time. I would have him discharged. Just then Mr. Class happened to come along and heard the conversation. I told it to him, and Mr. ClassQ. What Mr. Class? A. Mr. Julius Class, and he also told him if he did anything of that kind again he would discharge him. (Objected to. Objection overruled. Exception to plaintiff.) Q. On that occasion how did he manipulate the regulator? A. The same way as I found it the day of the accident; by inserting this plug and putting the regulator out of action. Q. Did you take it out or did he by your orders? A. I took it out. Q. Then you addressed this remonstrance to him? A. I did. This is the second time. Q. On the former occasion you also found he had plugged it? A. I did. I saw him do it; I saw him put it in. Q. And you had remonstrated with him at that.

8 For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 112.

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