Bell v. Washington Cedar Shingle Co.

• Decision Date: 09 January 1894
• Citation: 8 Wash. 27,35 P. 405
• Court: Washington Supreme Court
• Parties: BELL v. WASHINGTON CEDAR-SHINGLE CO.

35 P. 405

8 Wash. 27

BELL v. WASHINGTON CEDAR-SHINGLE CO.

Supreme Court of Washington

January 9, 1894

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by William A. Bell against the Washington Cedar-Shingle Company. There was judgment for plaintiff, and defendant appeals. Reversed.

George Rice and G. V. Alexander, for appellant.

E. E Hardin and Bruce & Brown, for respondent.

HOYT J.

This action was brought to recover for personal injuries alleged to have been occasioned by the negligence of the defendant. The negligence charged was that the defendant had provided imperfect machinery and appliances, and had put plaintiff to work in connection therewith, without his being in any manner informed of the nature and use of the same. Plaintiff was allowed to show that, after the accident, changes had been made in such machinery and appliances. Proper exceptions were taken by the defendant to the introduction of such testimony and the ruling of the court thereon is properly presented here for our consideration. That it is not competent for the plaintiff, in actions of this kind, to show that such changes have been made, is well established by the authorities in this country. That such is the fact will sufficiently appear from a quotation from a single case. The supreme court of the United States, in the case of Railroad Co. v Hawthorne, 144 U.S. 202, 12 S.Ct. 591 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; 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; 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 of Locks & Canals, 154 Mass. 168, 28 N.E. 10. 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 of which are supported by no satisfactory reasons. McKee v. Bidwell, 74 Pa. St. 218, 225, and cases cited; Railway Co. v. Weaver, 35 Kan. 412, 11 P. 408."

That such is the rule established by the courts of most of the states, is well settled. Respondent makes little contention against such rule, but claims that it is not applicable to the facts of this case. The testimony to which exception was taken by the defendant was not introduced as a part of the plaintiff's case. It was brought out upon the cross-examination of defendant's witnesses. Such being the fact, he contends that it was competent, for the reason that it had a tendency to discredit their testimony in chief, in which they had testified that the machinery in use at the time the accident occurred was, in their opinion, properly constructed, and in good condition. In our opinion, such cross-examination should not have been allowed. If the fact that changes had been made cannot be introduced to show negligence on the part of the defendant, for the reason that it has no legal bearing upon the question, we are unable to see how such fact can in any manner affect the testimony of a witness who has testified as to the character of the machinery at the time of the accident. If the alterations had no tendency whatever to show that the machinery was unsafe, it is impossible to see how such fact could affect the testimony of a witness who has sworn to the condition of such machinery.

The respondent alleges another reason why such testimony was admissible, and that was that there had been, at the suggestion of the defendant, a view of the premises by the jury, on account of which he was entitled to show that the condition of the machinery at the time of the view was...