time? A. I did certainly; very strongly, too. Q. The last time you said that if it happened again he would be discharged? A. I did.” Verdict and judgment for defendant. Plaintiff appealed. STEWART, J. The immediate cause of the explosion which resulted in the death of the plaintiff's husband is not obscure. The steam gauge, just before the explosion occurred, registered a pressure in excess of 25 pounds, whereas the maximum of safety was from 16 to 18 pounds. This could not have occurred had the governor and safety valve been in working order. An examination made within a few minutes after the explosion showed that the regulator on the steam pump had been plugged with a large wrought-iron nail, that extra weights had been placed on the lever, and that the safety valve on the tank in the cold storage room was tied down with a rope. That this was the work of a designing mind is beyond question. The evidence admits of conjecture, but nothing more as to the purpose back of it. While it does not necessarily result from the fact that the appliances to the steam machinery were found in this condition 15 or 20 minutes after the explosion, and after a number of persons had been admitted to the room, that they were in the same condition when the explosion occurred, yet the evidence on this point was strongly persuasive of the fact, and its admission was not open to objection. Assuming this to be the true explanation of the explosion, where did the responsibility rest? The contention on the part of the plaintiff was that, while it was chargeable in the first instance to the negligence of the defendant's night engineer, whose duty it was to observe the state of the gauge and keep the pressure within the limits of safety, the responsibility rests on the defendant because-and the evidence on this point was amply sufficient to establish a prima facie case-the night engineer in charge was a man given to habits of intoxication, a circumstance that was known or should have been known to the defendant, and that he was in point of fact under the influence of liquor during the night of the accident to an extent that made him incompetent for the work assigned him. The effort on the part of the defense was not only to meet and overcome the testimony of the plaintiff with respect to these matters, but to refer the interference with the appliances to the steam machinery, directly to the plaintiff's husband who was killed. It is in connection with the latter effort that we have this appeal. Of course, if it was plaintiff's husband who, on his own responsibility and for his own purposes, disarranged the machinery in a way that resulted in the explosion, no liability could attach to the defendant however much the incompetency or negligence of the night engineer may have contributed. As a distinct fact in the case, the jury were allowed to pass upon the question whether Veit did or did not tamper with the machinery in the way indicated. The finding was for the defendant generally, but inasmuch as several questions of fact were submitted, either one of which being found for the defendant would have determined the verdict as rendered, we cannot know what the jury's finding was with respect to this particular inquiry. It may have been for all we know, the determining one, and it therefore becomes important to inquire as to the basis for the submission. Veit was engaged in filling kegs with beer from the vats for the morning delivery. The time required for this work depended to some extent upon the air pressure in the vats; the greater the air pressure, the more rapidly could the kegs be filled. A witness for the defendant testified that Veit had been discovered on several occasions, the most recent being about a month before the accident, interfering with the safety valve on the air pump; and that he had given as his reason for so doing, that it enabled him to get through with his work and return to his home at an earlier hour than he otherwise could; that he had been threatened with discharge if he repeated the interference, and had been cautioned that such interference might result in loss of life. This evidence was admitted under objection, and its admission is assigned for error. Had there been any evidential fact connecting Veit with the explosion, this testimony would have been competent as showing the motive, as a supporting circumstance, but there was absolutely none. He was not shown to have said or done anything that connected him in any way with the condition of the machinery that occasioned the explosion, nor was there a single circumstance pointing in this direction. The jury were allowed to infer that his was the hand that plugged the governor and tied down the valve, solely because of his previous conduct as testified to. Clearly this evidence was insufficient to warrant an inference that the interference was Veit's, and, when offered as a distinct piece of evidence, unaccompanied by any offer to show any other implicating circumstance, it ought to have been rejected. It is an established rule, applicable alike to civil and criminal inquiries, that the commission of the act charged cannot be proved by showing a like act to have been committed by the same person. The rule is thus stated in Stephen's Digest of the Law of Evidence, art. 10: "The fact which rendered the existence or nonexistence of any fact in issue probable by reason of its general resemblance thereto, and not by reason of its being connected therewith, is deemed not to be relevant to such fact." A fuller statement of the rule is to be found in 1 Wigmore on Evidence, page 230: "Where the doing of the act is the proposition to be proved, there can never be a direct inference from an act or former conduct to the act charged; there must always be a double step or inference of some sort, a tertium quid. In other words, it cannot be argued 'Because A did an act X last year, therefore he probably did the act X as now charged. Humanity being infinitely varied there is no adequate probative connection between the two. A may do the act once but may never do it again; and not only he may not do it again, but it is in no degree probable that he will do it again. The conceivable contingencies that may intervene are too numerous.' In 17 Cyc. p. 279, the same rule is stated in different terms. "Among inferences which, except under certain conditions, the law will not permit to be drawn, is that the person has done a certain act because he has done a similar act at another time. And the rule has repeatedly been asserted by the courts, and has been applied equally to civil and criminal cases.' The application of this rule in our own cases has been frequent. It is necessary to refer to but a single one. In Baker v. Irish, 172 Pa. 528, 33 Atl. 558, the effort was to show that the plaintiff in the action, who had been injured in an elevator, and was suing for damages, had made a practice of jumping from the elevator while in motion. Rejection of the evidence was assigned for error. We quote from the opinion of Mr. Justice Dean: "There was no error in the ruling; what Baker had done before would warrant no inference, or one so remote, that he had done the same on the day of the accident, that the evidence was inadmissible. Says Wharton's Law of Evidence, § 40 and notes: 'Ordinarily, when a party is sued for damages, flowing from negligence imputed to him, it is irrelevant to prove against him other disconnected though similar negligent acts. * * * So, where the question in a suit against a railway company is whether a driver on a particular occasion was negligent, it is irrelevant to prove that he had been negligent on other occasions.' The same rule applies where the defense is that the injury was caused by plaintiff's own negligence. Men do not usually risk life and limb without motive, and the fact that a man has done so once or oftener, does not warrant the induction 'that he did so on the particular occasion in controversy."" It was error to admit the evidence. The second assignment of error is sustained, the judgment is reversed, and a venire facias de novo. awarded. VI. Proof as to Dangerous Character of Thing HEINMILLER v. WINSTON BROS. et al. 9 (Supreme Court of Iowa, 1906. 131 Iowa, 32, 107 N. W. 1102, 6 L. R. A. [N. S.] 150, 117 Am. St. Rep. 405.) Suit to recover damages for personal injuries. Trial by a jury, and verdict and judgment for the plaintiff. The defendants appeal. SHERWIN, J.10 In June, 1902, the defendants were engaged in deep 9 For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 114. 10 A portion of the opinion of Sherwin, J., and the brief dissenting opinion of Deemer, J., with whom Ladd, J., concurred, are omitted. ening a cut for the Chicago Great Western Railway Company on its line of railway which had been in use for many years. They used in said work a steam shovel described as being 55 feet long, 12 feet high, with a smokestack extending 6 feet above the car, and with a boom 24 or 25 feet high. This cut was spanned near its center by a public highway bridge, the floor of which was from 28 to 30 feet above the bottom of the cut. At the precise time that the plaintiff received the injury for which she seeks recovery, the shovel was not in operation; but it was steamed up and was standing on the track on the east side of the cut and north of the highway bridge. During this time the plaintiff approached the bridge from the east in a carriage drawn by a single horse. The horse became frightened before reaching the bridge and suddenly turned around throwing the plaintiff from the carriage and, as she claims, inflicting the injury complained of. The plaintiff averred negligence in having the steam shovel where it was, and negligence in not having some one stationed on the bridge or approach thereto to "warn travelers of the danger of frightening horses and to aid persons whose horses became frightened in passing over the highway and bridge." There is a conflict in the evidence as to the exact location of the shovel with reference to the north line of the highway, some of the testimony tending to show that it was partly in the highway and other witnesses testifying that it was wholly north thereof. Its exact location, however, is not material, as we shall later point out. The first question discussed by counsel relates to the admission of testimony showing that two other persons with horses had passed over the same bridge in the forenoon in question, and while the shovel was standing in about the same place that it was when the accident in question occurred, and that their horses were frightened by the shovel. The appellants urge that the evidence was incompetent because introducing a collateral issue that they were not prepared to meet. A determination of the question thus presented involves the consideration of the relative rights of the defendants in their work on the railway and those of the plaintiff in her use of the public highway. The plaintiff, in traveling along the highway, was exercising her lawful right and the defendants in deepening the railway cut were just as clearly within the rights conferred by law upon the railway company, and this is true whether they were operating the shovel or letting it stand idle within or without the limits of the highway. The rule that every person must so use and enjoy his own property as not to unreasonably injure another is applicable to this case, and in deepening the cut the defendants were bound to act reasonably and with due regard for the rights and safety of persons lawfully using the highway. In other words, they were bound to use reasonable care in making the improvement. Hart v. C., R. I. & P. R. Co., 56 Iowa, 166, 7 N. W. 9, 9 N. W. 116, 41 Am. Rep. 93; Ochiltree v. C. & N. W. Ry. Co., 93 Iowa, 628, 62 N. W. 7; Wolf v. Des Moines Elevator Co., 126 Iowa, 659, 98 N. W. 301, 102 N. W. 517. There can be no liability in this case unless the steam shovel itself, located as it was at the time of the accident, was reasonably calculated to frighten horses ordinarily safe and gentle for road purposes. Wolf v. Elevator Co., supra. The plaintiff was, therefore, bound to prove such fact, and we know of no better way of doing so than by testimony tending to show that other ordinarily gentle horses were in fact frightened by the shovel at about the same time and when it was in practically the same position. If such testimony cannot be received, the fact must be proven by the testimony of expert horsemen or the question must be left for the jury to determine from its own knowledge. Such testimony is held admissible in Bemis v. Temple, 162 Mass. 342, 38 N. E. 970, 26 L. R. A. 254, where it is said: "In the present case the only collateral inquiry which could arise is whether a horse called by a witness "an ordinarily safe and gentle horse" comes within that class. Such an inquiry is certainly simple. We think there would be no practical difficulty in receiving and weighing testimony in regard to the conduct of horses which seem to be like ordinary horses in common use. In House v. Metcalf, 27 Conn. 631, the same question arose and the court says the plaintiff "had a right, not only to show the facts regarding its size, form, location, exposure to view, and mode of operation from which the jury might infer what effects it would naturally, necessarily, or probably produce, but also to prove what effects it had produced in fact. * The inquiry in every such case is not whether the evidence offered is sufficient to prove the fact claimed but whether it tends to prove it." * * Such evidence has also been held admissible in the following cases: Brown v. Railway Co., 22 Q. B. Div. 391; Crocker v. McGregor, 76 Me. 282, 49 Am. Rep. 611; Darling v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55; Champlin v. Village of Penn Yan, 34 Hun (N. Y.) 33; Quinlan v. City of Utica, 11 Hun (N. Y.) 217; Id., 74 N. Y. 603; Wooley v. Railroad Co., 83 N. Y. 121. See, also, Hanson v. Chicago, St. P. & K. C. Ry. Co., 94 Iowa, 409, 62 N. W. 788, and see Wigmore on Evidence, § 461. The appellants rely on Hudson v. C. & N. W. Ry. Co., 59 Iowa, 581, 13 N. W. 735, 44 Am. Rep. 692, and other like cases against railway companies and cities, in which it is held that evidence of a prior accident at the same place is inadmissible for the purpose of proving that the way was defective. The decisions are all bottomed on the ground that such testimony concerns collateral facts which the defendants were not bound to meet. We think a distinction may be made between such cases and the instant one. In the former, the ultimate questions were whether defects existed. If they did, it was immaterial whether others had been injured thereby, while here it must be proven that the shovel was calculated to produce a certain effect on a certain class of animals. The testimony is not admissible for the purpose of proving that the plaintiff's horse was frightened by the |