Pribbeno v. Chicago, Burlington & Quincy Railway Co.
| Decision Date | 07 May 1908 |
| Docket Number | 15,105 |
| Citation | 116 N.W. 494,81 Neb. 657 |
| Parties | CHARLES F. PRIBBENO, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Richardson county: JOHN B. RAPER JUDGE. Reversed.
REVERSED.
F Martin, F. E. Bishop and F. M. Deweese, for appellants.
E Falloon and J. E. Leyda, contra.
ROOT, C. FAWCETT and CALKINS, CC., concur.
The Nemaha river flows in a general southeasterly direction through Richardson county. The railroad company's railway is constructed across the valley of said river in an east and west course, crossing the river about a mile and a half east of the village of Preston. Above this crossing the river describes an irregular open loop, its path up-stream from that point being nearly north by west, thence west, and thence southwest. Just at the crossing of the railway the river approaches the foothills on the north side of the valley. The railway is constructed on a grade some eight to fourteen feet above the surface of the ground, and the only opening for the escape of the flood waters in 1900 was underneath the railway bridge which spanned the channel of the stream. In 1900 plaintiff owned a small tract of land and leased a much larger parcel, all situated north of the railway grade west of the bridge, and within the loop of the river hereinbefore described. Plaintiff alleged that the embankment of said railway was negligently constructed, in that provision was not made by way of sufficient openings therein for the escape of the flood waters, and, by reason thereof, said waters were arrested and held back by said embankment, so that at times the water on the north side of the embankment was from four to five feet higher than on the south side, and was held in that condition for days; that in July, 1900, by reason of the premises, the flood waters of said river were checked and thrown back upon the lands owned and leased by plaintiff, and the crops thereon destroyed. Defendants answered by way of general denial, and pleaded the four-year statute of limitations.
1. Over defendant's objection, plaintiff was permitted to prove that subsequent to the flood defendants "lengthened the bridge and took out the ground so the water could go through." Defendants not only objected to the testimony but moved to strike it out of the record, so the court was well advised that defendants insisted the evidence was incompetent. So far as our brief research has been rewarded, we find that only three courts in the United States permit the introduction of that class of evidence where the issue is the alleged negligence of the defendant, and they are Utah, Kansas and Pennsylvania. In the earlier history of the states a contrary rule was adopted in Minnesota, Georgia and New York. As Judge Elliott demonstrates, the overwhelming weight of authority is against permitting proof that subsequent to the injury defendant made repairs or changed the condition of the machinery or immovables responsible for the injuries the subject of the suit. 1 Elliott, Evidence, sec. 228; Nalley v. Hartford Carpet Co., 51 Conn. 524; Sappenfield v. Main Street & A. P. Co., 91 Cal. 48, 27 P. 590; Corcoran v. Village of Peekskill, 108 N.Y. 151, 15 N.E. 309; Hodges v. Percival, 132 Ill. 53, 23 N.E. 423; Shinners v. Proprietors of Locks & Canals, 154 Mass. 168, 26 Am. St. Rep. 226, 28 N.E. 10; Anson v. Evans, 19 Colo. 274, 35 P. 47; Sievers v. Peters Box & Lumber Co., 151 Ind. 642, 50 N.E. 877; Dillon v. City of Raleigh, 124 N.C. 184, 32 S.E. 548; Cramer v. City of Burlington, 45 Iowa 627; Sylvester v. Town of Casey, 110 Iowa 256, 81 N.W. 455; Terre Haute & I. R. Co. v. Clem, 123 Ind. 15, 23 N.E. 965; Getty v. Town of Hamlin, 127 N.Y. 636, 27 N.E. 399; Morse v. Minneapolis & S. L. R. Co., 30 Minn. 465, 16 N.W. 358, wherein the court overruled its former decisions to the contrary; Missouri P. R. Co. v. Hennessey, 75 Tex. 155, 12 S.W. 608; Georgia S. & F. R. Co. v. Cartledge, 116 Ga. 164, 42 S.E. 405. This is a leading case wherein Mr. Justice Lumpkin reviews the authorities and overrules the Georgia cases theretofore holding such evidence admissible. Columbia & P. S. R. Co. v. Hawthorne, 144 U.S. 202, 36 L.Ed. 405, 12 S.Ct. 591; 6 Thompson, Commentaries on Law of Negligence, sec. 7871; Standard Oil Co. v. Tierney, 92 Ky. 367, 36 Am. St. Rep. 595, 17 S.W. 1025. Kansas has held to the contrary in St. Louis & S. F. R. Co. v. Weaver, 35 Kan. 412, 57 Am. Rep. 176, 11 P. 408; Pennsylvania, in Lederman v. Pennsylvania R. Co., 165 Pa. 118, 30 A. 725; Utah, in Jenkins v. Hooper Irrigation Co., 13 Utah 100, 44 P. 829. Pennsylvania and Kansas adhere to their former decisions, and the law in those states may be said to be well settled. We believe logic, reason and sound public policy direct that we follow the rule adopted by the majority of the state courts. The testimony would naturally impel the jurors to believe the railway company had ascertained its fault and was endeavoring to repair its dereliction, hence without question it had admitted its...
To continue reading
Request your trial