The refusal to direct a verdict for the defendant at the close
of the plaintiffs evidence, and when the defendant has not rested
his case, cannot be assigned for error.
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 not competent evidence of negligence in
its original construction.
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 fifty pounds, revolved around a
stationary shaft made of gas pipe with nothing to
Page 144 U. S. 203
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 furnish 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."
"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
Page 144 U. S. 204
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.Terr. 353. The
defendant sued out this writ of error.
Page 144 U. S. 205
MR. JUSTICE GRAY, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Page 144 U. S. 206
The question of the sufficiency of the evidence for the
plaintiff to support his action cannot be considered by this Court.
It has repeatedly been decided that a request for a ruling that
upon the evidence introduced the plaintiff is not entitled to
recover cannot be made by the defendant as a matter of right unless
at the close of the whole evidence, and that, if the defendant at
the close of the plaintiff's evidence, and without resting his own
case, requests and is refused such a ruling, the refusal cannot be
assigned for error.
Grand Trunk Railway v. Cummings,
106 U. S. 700;
Accident Ins. Co. v. Crandal, 120 U.
S. 527;
Northern Pacific Railroad v. Mares,
123 U. S. 710;
Robertson v. Perkins, 129 U. S. 233.
The only other exception argued is to the admission of evidence
of changes in the machinery after the accident.
It was argued for the plaintiff that this exception was not open
to the defendant because it had been waived by his counsel saying,
after the first ruling of the court on the subject, "I thoroughly
concur with the court as to the rule." Assuming these words to be
accurately reported, it is not wholly clear whether they refer to
the rule as to evidence of subsequent changes or to the rule,
mentioned just before, as to the degree of care required of the
defendant. That they were not understood, either by the counsel or
by the court, as waiving the objection to evidence of subsequent
changes is shown by the plaintiff's counsel thereupon saying, "We
propose to show changes," and by the court's ruling them to be
admissible and allowing an exception to this ruling, and
immediately afterwards allowing two other exceptions to evidence on
the same subject. And the question of the admissibility of this
testimony was considered and decided by the supreme court of the
territory. 3 Wash.Terr. 353, 364.
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.
Page 144 U. S. 207
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. Minneapolis &
St. Louis Railway, 30 Minn. 465;
Corcoran v.
Peekskill, 108 N.Y. 151;
Nalley v. Hartford Carpet
Co., 51 Conn. 524;
Ely v. St. Louis &c. Railway,
77 Mo. 34;
Missouri Pacific Railway v. Hennessey, 75 Tex.
155;
Terre Haute & Indianapolis Railroad v. Clem, 123
Ind. 15;
Hodges v. Percival, 132 Ill. 53;
Lombar v.
East Tawas, 86 Mich. 14;
Shinners v. Proprietors of Locks
& Canals, 154 Mass. 168.
As was pointed out by the court in the last case, the decision
in
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 Penn.St. 218,
225, and cases cited;
St. Louis & San Francisco Railway v.
Weaver, 35 Kan. 412.
The true rule and the reasons for it were well expressed in
Morse v. Minneapolis & St. Louis Railway, above cited,
in which Mr. Justice Mitchell, delivering the unanimous opinion of
the Supreme Court of Minnesota, after referring to earlier
Page 144 U. S. 208
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 employees 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.
The same rule appears to be well settled in England. In a case
in which it was affirmed by the Court of Exchequer, Baron Bramwall
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. Lancashire & Yorkshire Railway, 21 Law
Times (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.
