Diamond Rubber Co. v. Harryman

• Citation: 92 P. 922,41 Colo. 415
• Parties: DIAMOND RUBBER CO. et al. v. HARRYMAN.
• Decision Date: 02 December 1907
• Court: Supreme Court of Colorado

92 P. 922

41 Colo. 415

DIAMOND RUBBER CO. et al. v. HARRYMAN.

Supreme Court of Colorado

December 2, 1907

Appeal from District Court, City and County of Denver; Frank T Johnson, Judge.

Action for personal injuries by Charles B. Harryman against the Diamond Rubber Company and the city and county of Denver. From a judgment for plaintiff, defendants appeal. Reversed.

Wm. L. Dayton and Wilbur F. Denious, for appellant Diamond rubber co.

H. A. Lindsley, H. L. Ritter, and Wm. J. Miles for appellant city and county of Denver.

Fred W Parks and C.J. Blakeney, for appellee.

GABBERT J.

Appellee, as plaintiff, brought an action to recover damages for injuries sustained through the alleged negligence of appellants, as defendants. A trial of the issues joined resulted in a verdict and judgment for plaintiff, from which defendants appeal.

Plaintiff's right of action was based upon the claim that he was injured by tripping upon and falling over an obstruction placed in the sidewalk by the defendant company, in front of its place of business in the city of Denver, which obstruction consisted of an iron pipe in the flagging of the sidewalk about six inches from the curb. This pipe was about three inches high, with an arm three inches in length, making what is commonly known as a 'goose neck,' and was used to inflate bicycle and automobile tires.

The first error assigned is that the court erred in admitting evidence of the fact that soon after plaintiff's injury the defendant company removed this pipe or goose neck. It is settled in this jurisdiction that testimony that a defendant in an action for negligence took precautions, subsequent to an injury, to avoid future injury by removing, changing, or repairing the thing by means of which another was injured, is not admissible for the purpose of establishing negligence. Colo. Electric Co. v. Lubbers, 11 Colo. 505, 19 P. 479, 7 Am.St.Rep. 255; Anson v. Evans, 19 Colo. 274, 35 P. 47; Zimmerman v. Denver Tramway Co., 18 Colo.App. 480, 72 P. 607; D. & R. G. R. R. Co. v. Morton, 3 Colo.App. 155, 32 P. 345. Such acts afford no legitimate basis from which to infer that thereby a previous neglect of duty is admitted. A person may have exercised due care with respect to some appliance under his control, and yet, after an injury to another has occurred, and as a precaution to prevent future injuries, may adopt additional safeguards. If he were not permitted to do so without having such action construed as an admission that he had been previously negligent, the result would be after an injury to prevent precautions being taken to avoid injuries to others. Jones on Evidence, § 290. Negligence is determined from the facts as they were, and what was or should have been known at the time of an injury, and not by circumstances subsequent thereto.

One of the issues made by the pleadings was whether the defendant company had placed the obstruction in the sidewalk, and for this reason counsel for plaintiff contend that the evidence was admissible for the purpose of showing that this obstruction was under the control of the defendant company. In support of this contention they cite Readman v. Conway, 126 Mass. 374; Colo. Mortgage Co. v. Rees, 21 Colo. 435, 42 P. 42; Skottowe v. O. S. L. & Utah & N. R. Co., 22 Or. 430, 30 P. 222, 16 L.R.A. 593; Jones on Evidence, § 290. They also contend that the testimony was competent for the purpose of showing that the conditions where the injury to the plaintiff occurred had changed, and to prove that the goose neck had in fact existed. In support of this contention they cite Choctaw, O. & G. R. R. Co. v. McDade, 191 U.S. 64, 24 S.Ct. 24, 48 L.Ed. 96; Kuhns v. Wis., I. & N. Ry. Co., 76 Iowa 67, 40 N.W. 92.

Conceding, but not deciding, that the testimony in question was competent for the purposes claimed by counsel for plaintiff, that did not render it competent to establish negligence on the part of the defendants. By an instruction given, the question of whether or not the goose neck was dangerous to the safety of persons traveling along the sidewalk in the vicinity of where it was located was submitted to the jury. If this was a question which it was the province of the jury to determine (and no claim to the contrary is made), then it was prejudicial error to permit any evidence to go to the jury tending to prove negligence of the defendants which was not competent for that purpose. The defendants requested an instruction to the effect that, in determining whether or not the defendants were guilty of negligence, they must not consider the testimony that the goose neck was removed after plaintiff's injury. This should have been given, for the reason that, as stated, if it be conceded that the testimony which the defendants sought to have excluded from the jury in determining the question of negligence was competent, under the issues made by the pleadings, for the purposes claimed by counsel for plaintiff, it should have been so limited, or, at least, the jury should have been advised that it could not be considered in determining the question of the negligence of the defendants, when an instruction to that effect was requested.

Counsel for plaintiff say that the instruction requested was objectionable because its wording was such that the effect would have been to take away from the jury the question of whether or not there was a goose neck in the sidewalk on the day plaintiff was injured, and whether the defendant company had placed it there, and was responsible for its presence at the time of plaintiff's injury. Perhaps it is true that the instruction could have been more carefully worded, so as to have more definitely called the attention of the jury to the proposition that the removal of the goose neck subsequent to plaintiff's injury was not to be construed as an admission that it was dangerous to persons traveling along the sidewalk in its vicinity. If it was faulty in this respect, however, the plaintiff was not thereby prejudiced, but, on the contrary, it was detrimental to the defendants by not being sufficiently definite. By the answers filed, the placing of the goose neck in the sidewalk by the defendant company was denied; but at the time the evidence of its removal was introduced, it had been admitted by the agent of the defendant company that it had been placed there by his direction, so that at the time this testimony was introduced there was no issue, so far as the evidence was concerned, as to whether the defendant company had placed it in the sidewalk, but the important question was, whether it was so fraught with danger that placing and maintaining it there was negligence. Consequently, if the instruction was not as definite as it should have been, it would not have had the effect of withdrawing from the consideration of the jury the testimony bearing upon the question of the goose neck having been placed in the sidewalk by the defendant company, and that it was under its control on the day plaintiff was injured.

The next error complained of by counsel for defendant company is that testimony from other persons that they had tripped upon the goose neck was admitted. When this testimony was offered, one of counsel for plaintiff stated: 'We desire to show by this witness and others the fact that this man and others have stumbled over this very projection, and it is evidence of the fact of negligence on the part of the defendant company.' Testimony that other persons had tripped upon this goose neck was clearly not admissible for the purpose of establishing negligence of the defendants, of that the goose neck was dangerous. If the fact that others had tripped upon the obstruction could be shown for the purpose of establishing negligence, then there would necessarily be as many distinct issues injected into the case as there were persons called as witnesses who had passed over the sidewalk in the vicinity of the goose neck. The care they had exercised and the conditions under which they had tripped upon the obstruction would be a subject of inquiry. If such evidence was admissible, then it would be proper to show that persons had passed along the sidewalk and had not tripped upon the obstruction; and again, the care they had exercised and the conditions under which they had passed by the goose neck could be gone into, and thus the case would be confused by a great number of collateral issues, which would not aid in determining whether or not the obstruction was dangerous. Evidence of collateral facts which are incapable of aiding in the determination of the main fact in dispute should be excluded, because such evidence tends to draw the minds of the jurors from the main fact in issue, and to excite, prejudice, mislead, and confuse them. The character of the obstruction was susceptible of proof. Such proof was made and whether or not the goose neck was dangerous was to be determined by the jury from these facts, and not from whether others had passed along the sidewalk where it was located without being injured thereby, or had suffered an injury therefrom. That the testimony in question was not competent to prove negligence of the defendants is supported by many authorities, from which we cite. Hubbard v. And. & Ken. R. R. Co., 39 Me. 506; Collins v. Inhabitants of Dorchester, 6 Cush. (Mass.) 396; Hudson v. C. & N.W. R. R. Co., 59 Iowa 581, 13 N.W. 735, 44 Am.Rep. 692; Temperance Hall Ass'n v. Giles, 33 N. J. Law, 260; Kidder v. Inhabitants of Dunstable, 11 Gray (Mass.) 342; Phillips v. Town of Willow, 70 Wis. 6, 34 N.W. 731, 5 Am.St.Rep. 114; Branch v. Libbey, 78 Me. 321, 5 A. 71, 57 Am.Rep. 810; Ramsey v. Rushville & M. G. R. Co., 81 Ind. 394; Hodges v. Bearse, 129 Ill. 87, 21 N.E. 613.

But counsel for plaintiff say that the testimony under...