Schermer v. McMahon

• Decision Date: 18 October 1904
• Citation: 82 S.W. 535,108 Mo. App. 36
• Court: Missouri Court of Appeals
• Parties: SCHERMER v. McMAHON.<SMALL><SUP>*</SUP></SMALL>

82 S.W. 535

108 Mo. App. 36

SCHERMER v. McMAHON.^*

St. Louis Court of Appeals. Missouri.

October 18, 1904.

NEGLIGENCE—EVIDENCE—INJURY TO SERVANT.

1. Precautions adopted after a casualty to avert its recurrence are not admissions of prior neglect and therefore admissible.

2. In an action for injuries caused by the caving in of a ditch in which plaintiff was working, statement of a witness that other people digging such ditches always braced them was improperly received, it being a mere expression of opinion.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by John Schermer against John F. McMahon. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Claud D. Hall, for appellant. John J. O'Connor, for respondent.

REYBURN, J.

While in defendant's employ, engaged with other laborers in digging a trench for reception of water pipe, a passing street car running along and near the course of the excavation caused its near wall to fall in, burying plaintiff up to his neck, and resulting in the injuries complained of. The action originated before a magistrate, and upon trial anew in the circuit court the jury returned a verdict for plaintiff, from which defendant has appealed.

The trial court permitted testimony to be introduced by plaintiff, over defendant's objection thereto, that shortly after the catastrophe the work was continued with the sides of the ditch braced by lumber provided for the purpose, and that such mode of construction was the reasonably safe method of conducting such work. The prejudicial effect of such proof is obvious, for it tended to impress the jury with the belief that at the time of plaintiff's disaster, the sides of the trench being unsupported or braced, the work was being performed in an unsafe and negligent manner. It is now well established in this state that precautions adopted succeeding a casualty to avert its recurrence are not to be interpreted as admissions of prior neglect and therefore admissible. Mahaney v. Railway, 108 Mo., loc. cit. 200, 18 S. W. 895; Bowles v. Kansas City, 51 Mo. App., loc. cit. 419; Mitchell v. City of Plattsburg, 33 Mo. App., loc. cit. 560. Nor should statements of a witness that other people who dug such ditches always braced them have been received. The question of the negligence of defendant was to be determined by the jury from the conditions which the evidence demonstrated as attending the work at the time plaintiff suffered the injury. Such reply of the witness was the mere expression of an opinion, and, taken together with his further testimony that, when braces were omitted from excavations in such clay soil, the work was likely to cave and fall in, was but a conclusion on his part, and it was the exclusive province of the jury to deduce inferences and conclusions from the facts in evidence. Nor was the latter declaration properly received as the testimony of an expert. The witness disclaimed such character, and the subject was not...