Shinners v. Proprietors of Locks & Canals on Merrimack River

• Decision Date: 26 June 1891
• Parties: SHINNERS v. PROPRIETORS OF LOCKS & CANALS ON MERRIMACK RIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 168

28 N.E. 10

SHINNERS v. PROPRIETORS OF LOCKS & CANALS ON MERRIMACK RIVER.

Supreme Judicial Court of Massachusetts, Middlesex.

June 26, 1891

COUNSEL

Chas.

Cowley, for plaintiff.

Geo. F Richardson, Geo. R. Richardson, and Daniel M. Richardson, for defendants.

OPINION

LATHROP J.

This is an action under the statute of 1887, c. 270, § 2, brought by the widow of Matthew Shinners, to recover damages sustained by her in consequence of the death of her husband, caused by the falling upon him of a portion of a bank of earth, while he was working as a day laborer in the employ of the defendant corporation, and engaged in digging a trench in Lowell. He died without conscious suffering. The bank was 18 feet high, and was composed of hard gravel clay, and marl. The defendant contended that the fall of the bank took place in consequence of the unreasonable neglect of the defendant to have the bank properly shored up. At the trial in the superior court the jury returned a verdict for the defendant; and the case comes before us on the plaintiff's exception to the exclusion of the following question, put by the plaintiff to one of her witnesses, who worked in the trench before, after, and at the time of the accident "What, if anything, was done by the defendant to said bank after the accident?" There is nothing in the bill of exceptions to show what the testimony of the witness would have been, if admitted, or what the plaintiff offered to prove thereby, and for this reason an exception to the exclusion of the question cannot be maintained. Hathaway v. Tinkham, 148 Mass. 85, 87, 19 N.E. 18, and cases cited; Crowley v. Appleton, 148 Mass. 98, 101, 18 N.E. 675; Smethurst v. Church, 148 Mass. 261, 267, 19 N.E. 387; Farnum v. Pitcher, 151 Mass. 470, 475, 24 N.E. 590.

As however, the point of law, sought to be presented by the exception, is an important one, arising constantly in trials at nisi prius, and as it has been elaborately argued by counsel, we are disposed to rest our judgment upon a broader ground than the one above stated. The plaintiff contends that, when an accident has happened through the alleged negligence of a person, the subsequent acts of this person in taking additional precautions to prevent other accidents are admissible in evidence, in an action against him for the injuries occasioned, for the purpose of showing that such precautions were needed at the time of the accident. If such acts are admissible, it must be on the ground that the conduct of the person amounts to an admission of negligence; and this is the ground upon which such evidence has been sometimes held to be admissible. Railroad Co. v. Henderson, 51 Pa.St. 315; Railroad Co. v. McElwee, 67 Pa.St. 311; McKee v. Bidwell, 74 Pa.St. 218. And in Dale v. Railroad Co., 73 N.Y. 468, it is said by Mr. Justice RAPALLO, speaking of repairs made by a railroad corporation immediately after an accident: "In such a case the making of the repairs may be regarded as some evidence that they were needed, and consequently that the road was out of repair." This remark was, however, obiter, and, although in accord with some decisions of the supreme court of the state of New York, which we need not further refer to, is contrary to what is now the well-established doctrine of the court of appeals of that state, as will presently appear. The Pennsylvania doctrine was at first followed by the supreme court of Minnesota. O'Leary v. Mankato, 21 Minn. 65; Phelps v. Mankato, 23 Minn. 276; Kelly v. Railroad Co., 28 Minn. 98, 9 N.W. 588. But these cases were deliberately overruled in Morse v. Railroad Co., 30 Minn. 465, 16 N.W. 358, in an elaborate opinion, in which the question is fully and carefully considered. Such evidence has also been held to be inadmissible by the highest tribunals in New York, Connecticut, Indiana, Illinois, and Iowa. Dougan v. Transportation Co., 56 N.Y. 1; Baird v. Daly, 68 N.Y. 547; Corcoran v. Peekskill, 108 N.Y. 151, 15 N.E. 309; Nalley v. Carpet Co., 51 Conn. 524; Railroad Co. v. Clem, 123 Ind. 15, 23 N.E. 965; Hodges v. Percival, (Ill.) 23 N.E. 423; Cramer v. Burlington, 45 Iowa, 627; Hudson v. Railroad Co., 59 Iowa, 581, 13 N.W. 735. See, also, Hart v. Railway Co., 21 Law T.(N.S.) 261. In a recent case in this commonwealth, (Menard v. Railroad Co., 150 Mass. 386, 23 N.E. 214,) the plaintiff was struck by a locomotive engine of the defendant at a highway crossing. At the time of the accident no flagman was stationed there, but the jury when they took a view found one there. The plaintiff's counsel in argument proposed to comment upon this fact, and was stopped by the court. On exceptions, this action of the court was held to be correct; and Mr. Justice KNOWLTON, in delivering the opinion of the court, said: "The defendant's method of managing its business before, or after, or at the time of the accident was not evidence of what due care required. The defendant, or any other corporation, might at any time do more or less, in some particular, than a reasonable regard for the safety of the public demanded. Its adoption of a particular safeguard at any time, whether an accident had previously occurred or not, could not be deemed an admission that taking any less...