Morrell v. Peck , 31 N.Y. Sup. Ct. 37 ( 1881 )

Boardman, J.:

This action was brought to recover damages for an injury done to plaintiff in falling from a bridge which was not guarded by a railing.

Within the case of Hart v. Hudson River Bridge Company, lately decided by the Court of Appeals, the question of defendant’s negligence and of plaintiffs contributory negligence were, under the evidence, questions of fact to be decided by the court upon the trial. The plaintiff was proved to have been upon the bridge, to have fallen therefrom, presumptively, from the lack of a railing, and to have been injured by such fall. His want of contributory negligence is asserted from the evidence of his blindness in one eye, and that he was unexpectedly met in the night-time on the bridge by a loaded team which he attempted to avoid and stepped off. It is a much stronger case than Hart’s where the court held the evidence should have been submitted to the jury.

But the plaintiff was allowed, under objection and exception, to prove that the defendants, in a day or two after the plaintiff’s injury, put up the railing on the side of this bridge where the accident occurred. Such evidence is in conflict with the decisions of the Court of Appeals and of this court following the same. Dougan v. Champlain Transportation Company (56 N. Y., 1) is almost identical with the case under consideration. Plaintiff’s intestate slipped under a gangway railing from a steamer into the lake and was drowned. Plaintiff was permitted to show that after the accident the defendant caused the open space to be boarded up. This was held to be immaterial and incompetent as evidence of negligence.

So in Baird v. Daly (68 N. Y., 547, 551) a recovery was had for partially swamping a scow, being towed by defendant’s tug at too great a rate of speed. In that connection it was proved by plaintiff that after the disaster the scow was towed at less speed. It was held to be improper, but the impropriety is attributed to the altered circumstances which sufficiently accounted for the slower speed. Again, the admission of evidence of a change in the character of a switch after an accident is error. (Salters v. D. and H. Canal Co., 3 Hun, 338, 341.) To the same effect is Payne v. Troy and Boston Railroad (9 Hun, 526).

The evidence objected to in this case was received “ and was considered upon the question, of defendant’s negligence.” It could only have been considered as an implied admission of the necessity of such a railing, and that defendants were negligent in not having erected it before. But the true rule requires evidence of negligence, based upon circumstances at or prior to the accident. It is an old and time saying that accidents always happen in a way that one did not expect.

It would be unfortunate if no provision could be made against a repetition of the disaster, because such act would be construed into an admission that it was negligence not to have it done before.

For the error in receiving the evidence the judgment must be reversed and a new trial granted, costs to abide the event.

Bockes, J., concurred.