Morse v. Minneapolis & St. L. Ry. Co.

• Decision Date: 14 June 1883
• Citation: 16 N.W. 358,30 Minn. 465
• Parties: MORSE, ADM'X, ETC., v MINNEAPOLIS & ST. L. RY. CO.
• Court: Minnesota Supreme Court

30 Minn. 465

16 N.W. 358

MORSE, ADM'X, ETC.,vMINNEAPOLIS & ST. L. RY. CO.

Supreme Court of Minnesota.

Filed June 14, 1883.

Appeal from an order of the district court, Freeborn county.

J. H. Parker and Gordon E. Cole, for respondent.

J. D. Springer and John Whytock, for appellant.

MITCHELL, J.

This was an action to recover damage for the alleged negligence of defendant, causing the death of plaintiff's intestate while employed as an engineer on its railroad. One of the acts of negligence alleged to have contributed to the injury was defendant's allowing its track to become and remain out of repair; the defects in that respect consisting of a broken rail and defective switch, which caused the engine upon which the deceased was to be thrown from the track and upset. The rail and switch referred to were situated at Albert Lea, and near the water-tank, at which point the accident occurred. The court, against defendant's objection and exception, allowed plaintiff to show defects generally in all the numerous tracks in defendant's yard, from the round-house, whence the engine started, to the “place where the first work was to be performed,” which we understand to mean the first snow-drift, situated a short distance ahead of the point where the accident occurred. The engine in question did not pass over any of these tracks except one, and there was nothing tending to show that any defects except those at or near the place of the accident in any way contributed to the injury complained of. We think the admission of this evidence was error. The evidence; under the circumstances, should have been limited to those defects which caused or reasonably might have conduced to produce the injury. The mere existence of other defects in other parts of the road is not evidence that a similar defect existed at the place of the casualty, and caused it. The only exceptions to this rule which now occur to us are where the other defects were shown to be the result of a cause presumptively operating at the place of the casualty, or where such other defects might have caused the defect which produced the injury. But there are no facts bringing this case within any such exceptions. Defects in other tracks in the yard at Albert Lea had no more to do with producing this accident than defects 100 miles distant. The fact that they were in the same vicinity does not alter the principle. If evidence of these was admissible, we see no reason why defects in any part of defendant's road might not have been shown. The effect of this evidence was to raise false issues. The defendant was not on trial for general negligence; nor was it liable to plaintiff for any acts of negligence except those which caused the injury complained of. L. & N. R. Co. v. Fox, 11 Bush, 495;Grand Rapids & Ind. R. Co. v. Huntley, 38 Mich. 537; Pierce, R. R. 293.

2. Plaintiff was also permitted to show that after the accident defendant repaired the switch alleged to have been defective. The court held, in O'Leary v. Mankato, 21 Minn. 65, that such evidence was under certain circumstances competent. This case was followed in Phelps v. Mankato, 23 Minn. 276, and Kelly v. Southern M. R. Co. 9 N. W. REP. 588, and this position is not without support in the decisions of other courts. But, if competent, such evidence is only so as an admission of the previous unsafe condition of the thing repaired or removed, and to render it admissible as such the act must have been done so soon after the accident and under such circumstances as to indicate that it was suggested by the accident, and was done to remedy the defect which caused it. All courts who admit the evidence at all so hold. In the present case the change in this switch was made over a year after the accident, and after it had been removed to another place. Under such circumstances the repairs were, presumably, merely an ordinary betterment. Under such a state of facts such evidence would not be admissible under any rule, and its admission was, therefore, error. 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 employes 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. Dougan v. Champlain Transp. Co. 56 N. Y. 1; Sewell v. City of Cohoes, 11 Hun, 626; Baird v. Daly, 68 N. Y. 547; Payne v. Troy & Boston R. Co. 9 Hun, 526; Salters v. D. & H. Canal Co. 3 Hun, 338; Dale v. Del., L. & W. R. Co. 73 N. Y. 468.

3. Another of the acts of negligence relied on as a ground of recovery in this action was the order of defendants to the deceased to couple two engines together, tender to tender, to be used in “bucking” snow, in which they had necessarily to be driven at a quite high rate of speed. This, it was claimed, was a very dangerous and hazardous practice, and therefore the order referred to was improper and negligent. Upon the trial the plaintiff expressly stated “that the defect in the engines was in their being coupled together back to back; that this was the only defect claimed,”-meaning, of course, defect in the engines. The court instructed the jury that “a prompt and faithful employe, suddenly called upon by a superior to do a particular act requiring immediate attention, is not conclusively presumed to remember at the moment the defect that would make his doing the act dangerous; and even should he remember, he may suppose, from the fact that he is ordered to do the particular act, that the defect which would have interfered with the execution of such an...