Shelton v. Southern Ry. Co.

• Decision Date: 04 May 1927
• Docket Number: 367.
• Parties: SHELTON v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

139 S.E. 232

193 N.C. 670

SHELTON v. SOUTHERN RY. CO.

No. 367.

Supreme Court of North Carolina

May 4, 1927

Appeal from Superior Court, Rockingham County; Harding, Judge.

Civil action in the county court by W. W. Shelton against the Southern Railway Company. Judgment for plaintiff was affirmed in the superior court, and defendant appeals. New trial.

Objection to evidence showing change in railroad embankment after accident held not waived by cross-examination.

The evidence of plaintiff tended to show that on the night of October 10, 1925, plaintiff left Reidsville in a Ford touring car, going in the direction of Greensboro, and arrived at the Haw river crossing between 7 and 8 o'clock; that he saw a train upon the track of the defendant about 60 or 100 yards going north, and stopped his car, and waited until this train had passed the crossing. After the train had passed, the lights on the crossing went out and the plaintiff started across the track of the defendant.

The plaintiff testified:

"Before going on the crossing after the northbound train had passed, I looked toward Greensboro and toward Reidsville for an approaching train and did not see any, looked at the lights, where the lights are supposed to be, and it was dark, and I started across. *** The train did not blow its whistle, nor ring any bell before approaching this crossing. When I came to myself, I had a severe headache, I was aching all over, my neck was swollen up."

Witness for plaintiff crossed the track at this public crossing just ahead of the plaintiff and testified that when the fore wheels of his car were on the track the headlights of the south-bound train shone in the side of his car; that thereupon the engineer of defendant's train blew three quick blasts and witness hurried across; that almost immediately following the danger signal from the engine witness heard the crash of the impact of the train and plaintiff's car. There was evidence that the train was running about 60 miles an hour, and that no whistle was blown and no bell rung, and no warning of any kind given of the approach of said train prior to the danger signal immediately before the impact.

Issues of negligence, contributory negligence, and damages were answered in favor of the plaintiff. The defendant appealed to the judge of the superior court upon the exceptions and assignments of error duly taken at the trial. The appeal was heard at the February term, 1927, by Harding, J., who overruled all of defendant's exceptions and affirmed the judgment of the county court. Whereupon the defendant appealed.

Ivie Trotter & Johnston, of Reidsville, for appellant.

Glidewell, Dunn & Gwyn, of Reidsville, for appellee.

BROGDEN J.

Plaintiff alleged that:

"In addition to the failure of defendant to blow his whistle and to bring his bell and otherwise give the plaintiff the proper necessary warning, the defendant maintained an embankment upon its right of way, as hereinbefore described, which extended within a short distance of said crossing, which said embankment obstructed the view of plaintiff and prevented him from seeing said train until same had approached him within a short distance of said crossing and until plaintiff had proceeded to cross said track; that the defendant failed to provide a proper electric signal or gong at said crossing, in that the red signal light was not shining or burning, and thereby the plaintiff was not warned of the approach of said train."

The defendant denied the foregoing allegations.

A witness for plaintiff was asked:

"Q. I will ask you to state whether or not the embankment, which was there at the time of this wreck, is there at the present time? A. No, sir.

Q. Please state what has happened to it since the time of the wreck. A. It has been moved away.

Q. How long after the wreck before it was moved? A. I don't recall exactly, but I do recall talking with the people who were doing the work.

Q. Over how much distance or about how much of that bank was cut down or moved? A. I don't know exactly, but it was something like 150 feet of it; something in the neighborhood of that."

To all of these questions, except the first, the defendant objected. The trial judge admitted the evidence and the defendant excepted.

Another witness for plaintiff was permitted to answer the following questions, over the objection of defendant:

"Q. Describe the condition of that embankment, or where the embankment was, and describe what you saw. A. I didn't see it moved.

Q. State what you did see. A. From appearances, it is new soil there and the places along the edge of the cut where the cut goes down in the railroad there is a little embankment down to the bottom of the cut, and I saw a plow point and another piece of machinery there, and it had practically no vegetation on it; you can see it is new soil.

Q. Over what distance did that condition extend in feet, parallel with the railroad? A. 172 feet."

This evidence was not admitted in connection with a description of conditions existing at the time of the injury, or for the purpose of identifying the crossing where the injury occurred. It would seem apparent that the sole object of the testimony was to show changes made by the defendant near the crossing after the injury had occurred. The legal question raised, therefore, is under what circumstances may evidence be offered to show changes, subsequent to the injury, made upon or near the premises where the injury occurred, or in the instrumentality causing the injury?

In Lowe v. Elliott, 109 N.C. 581, 14 S.E. 51, the court said:

"While we do not say that there may not be peculiar cases in which such testimony may be relevant, we are entirely satisfied with the above reasoning as applicable to the facts of the present case. The testimony was improper, and probably had a very important influence with the jury in making up their verdict."

In Aiken v. Rhodhiss Mfg. Co., 146 N.C. 324, 59 S.E. 696, Connor, J., delivering the opinion, said:

"We are constrained, however, in view of the decisions of this court and the almost uniform opinion of text-writers based upon decisions of other courts, to order a new trial, by reason of the error committed in admitting the evidence of the change made in the platform after the injury was sustained by plaintiff."

In McMillan v. Atlanta & C. Air Line R. Co., 172 N.C. 854, 90 S.E. 685, it is held:

"The subsequent changes in signals or warnings for additional safety were properly excluded under the circumstances as proof of negligence. Precautions against the future cannot be considered as an admission of actionable negligence in the past."

The opinion of the court approved the statement of Baron Bramwell as follows:

"People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before."

The court in its opinion quotes Columbia & P. S. R. Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405, as follows:

"Upon this question there has been some difference of opinion in the courts of the several states. But it is now settled, upon much consideration, by the decisions of the highest courts of most of the states in which the question has arisen, that the evidence is incompetent, because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant."

The general rule, established by the overwhelming weight of authority, is that evidence of such subsequent changes is not admissible to show negligence nor as an admission of negligence. There are, however, certain clearly established exceptions to the general rule within which such evidence is competent. These exceptions may be classified as follows:

(1) Where such evidence tends to show ownership or control of the place where the injury occurs, where such ownership or control is controverted; (2) when the question in controversy is as to whose duty it was to make repairs; (3) to contradict a witness; (4) to show that the injury was brought about in the manner alleged; (5) to show existing conditions under certain circumstances at the time of the injury. Myers v. Concord Lumber Co., 129 N.C. 252, 39 S.E. 960; Blevins v. Erwin Cotton Mills Co., 150 N.C. 493, 64 S.E. 428; Tise v. Thomasville, 151 N.C. 281, 65 S.E. 1007; Pearson v. Harris Clay Co., 162 N.C. 224, 78 S.E. 73; Boggs v. Cullowhee Mining Co., 162 N.C. 393, 78 S.E. 274; McMillan v. Atlanta & C. Air Line R. Co., 172 N.C. 853, 90 S.E. 683; Muse v. Ford Motor Co., 175 N.C. 466, 95 S.E. 900; Farrell v. Universal Garage Co., 179 N.C. 389, 102 S.E. 617; Ledford v. Valley River Lumber Co., 183 N.C. 614, 112 S.E. 421.

The testimony admitted by the trial court in this case does not fall within any of the exceptions. While the defendant entered general denial to all of the allegations in paragraph 12 of the complaint, there was no evidence offered by it denying the existence of the embankment some distance from the crossing at the time of the injury. So that, the existing conditions with respect to the embankment, prevailing at the time plaintiff was struck by the train, were not in controversy, and this is the only possible exception to the general rule under which the testimony objected to could be classified. Moreover, there was no...