Hodges v. Percival

• Decision Date: 21 January 1890
• Citation: 132 Ill. 53,23 N.E. 423
• Parties: HODGES v. PERCIVAL.
• Court: Illinois Supreme Court

132 Ill. 53

23 N.E. 423

HODGES

v.PERCIVAL.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from appellate court, first district.

Action by Eldora Percival against Leonard Hodges. Defendant appeals.Stiles & Lewis

, for appellant.

Brandt & Hoffmann, (Joseph N. Barker, of counsel,) for appellee.

MAGRUDER, J.

This is an action of case, begun by the appellee on February 12, 1887, in the superior court of Cook county, against the appellant, to recover damages for injuries suffered through the falling of an elevator in a building owned by the appellant. The jury returned a verdict of $1,500 for the plaintiff below, and judgment was rendered upon the verdict. This judgment has been affirmed by the appellate court, and from the latter court the case is brought before us by appeal. The plaintiff rented of the defendant and occupied a suite of rooms in a five-story brick building owned by him, and located at the corner of Indiana avenue and Twenty-Second street, in Chicago. There were about 35 rooms on each floor, occupied mainly for residence purposes. The rooms of the plaintiff were on the fifth floor. The number of tenants was between 120 and 150. In the building was an elevator, for the accommodation of the tenants, running from the ground floor to and above the fifth floor, operated by water power, and having a cab that would hold seven or eight persons. Between 5 and 6 o'clock on the evening of December 17, 1886, the plaintiff and her sister, together with two other persons, besides the boy having charge of the elevator, were ascending in it to reach their rooms. On the way up the elevator became uncontrollable, and continued to ascend beyond the fifth floor until it came in contact with the cross-beam at the top, when the machinery gave way, and it dropped to the bottom, carrying with it all of its occupants, except the elevator boy who jumped out at the fifth floor. The damages claimed are for the injuries alleged to have been received in this fall. Plaintiff's sister was Elizabeth Bearse, and the accident here spoken of is the same accident described in Hodges v. Bearse, 21 N. E. Rep. 613. In the course of the trial below, the plaintiff introduced a witness by the name of Ellithorpe, who testified that he had been in the elevator business about 10 years; that what is known as the ‘air-cushion’ was in common use in December, 1886; that its object was to prevent injury from the fall of an elevator, by confining air at the bottom of the hatchway so as to resist the falling body; that it had been tested, and found effective for the prevention of injuries; that such an air-cushion was then (at the time when the witness was testifying) used in the defendant's building; that it was put in in the fall or winter of 1886, after the accident happened. Defendant objected to the statement that an air-cushion had been put in after the accident; the objection was overruled, and exception taken.

The admission of the testimony that an air-cushion was put in the elevator shaft after the happening of the accident is the only ground for reversal which is presented to our attention by appellant's counsel. We think that the testimony was improper, and should have been excluded. Evidence of precautions taken after an accident is apt to be interpreted by a jury as an admission of negligence. The question of negligence should be determined by what occurred before and at the time of the accident, and not by what is done after it. New measures or new devices adopted after an accident do not necessarily imply that all previous devices or measures were insufficient. A person operating a passenger elevator is bound to avail himself of all new inventions and improvements known to him, which will contribute materially to the safety of his passengers, whenever the utility of such improvements has been thoroughly tested and demonstrated, and their adoption is within his power so as to be reasonably practicable. For this reason, it was proper to show that a valuable device for securing safety was known to the defendant, and its use neglected by him before the accident; but it would seem unjust that he could not take additional precautions after the accident without having his acts construed into an admission of prior negligence. Persons to whose negligence accidents may be attributed will hesitate about adopting such changes as will prevent the recurrence of similar accidents, if they are thereby to be charged with an admission of their responsibility for the past. The happening of an accident may inspire a party with greater diligence to prevent a repetition of a similar occurrence, but the exercise of such increased diligence ought not, necessarily, to be regarded as tantamount to a confession of past neglect. We are aware that there is a conflict of authority upon this subject. In Pennsylvania, evidence of precautions taken after the accident has been held competent. Railroad Co. v. Henderson, 51 Pa. St. 315; ...