Terre Haute And Indianapolis Railroad Company v. Clem

• Citation: 23 N.E. 965,123 Ind. 15
• Decision Date: 19 March 1890
• Docket Number: 13,693
• Parties: The Terre Haute and Indianapolis Railroad Company v. Clem
• Court: Indiana Supreme Court

23 N.E. 965

123 Ind. 15

The Terre Haute and Indianapolis Railroad Company v. Clem

No. 13,693

Supreme Court of Indiana

March 19, 1890

From the Carroll Circuit Court.

Judgment reversed, with instructions to award a new trial.

W. H Russel, F. F. Moore, J. G. Williams and S. O. Bayless, for appellant.

L. D Boyd and L. G. Beck, for appellee.

OPINION

Elliott, J.

The appellee recovered a judgment for damages for an injury to a horse which he was driving. The theory of the appellee is that the appellant was negligent in constructing a crossing at a point where its railroad crossed a public road, and that the injury to his horse was caused by the appellant's negligent breach of duty.

It is quite well settled that it is the duty of a railroad corporation to so construct and maintain its crossings that they may be safely used by persons travelling the highway and that for a negligent breach of this duty it must answer in damages to one who exercises ordinary care and sustains an injury from the breach of duty by the company. Evansville, etc., R. R. Co. v. Crist, 116 Ind. 446, 19 N.E. 310; Evansville, etc., R. R. Co. v. Carvener, 113 Ind. 51, 14 N.E. 738; Indianapolis, etc., R. R. Co. v. Stout, 53 Ind. 143.

The appellee's counsel are in error in assuming that the same rule applies to actions for the recovery of injuries received at a crossing that applies in cases where passengers are injured while on the trains of the carrier. The presumption of negligence which prevails in such cases does not obtain in such a case as this, and the cases of Cleveland, etc., R. R. Co. v. Newell, 104 Ind. 264, 3 N.E. 836, and Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346, are not in point.

The evidence upon the question of negligence in this instance is not of that satisfactory character which authorizes us to declare that the judgment should be affirmed, although incompetent evidence was admitted. If, therefore, we find that incompetent evidence was permitted to go to the jury over the objection of the defendant, we must reverse the judgment.

The appellee was permitted to prove that after the accident occurred the appellant changed and repaired the crossing. This was error. Evidence of repairs made after an injury has been sustained, is incompetent to show antecedent negligence. This question was carefully considered by the Supreme Court of Minnesota, in the case of Morse v Minneapolis, etc., R. W. Co., 30 Minn. 464, 16 N.W. 363, and three of the earlier decisions of that court were overruled. In the course of the opinion in that case it was said: "But, on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances, and that the rule heretofore adopted by this court is on principle wrong; not for the reason given by some courts, that the acts of the employees in making such repairs are not admissible against their principals, but upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem to be unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence." The authorities are collected and discussed in the case of Nalley v. Hartford Carpet Co., 51 Conn. 524, and it was there said: "The fact that an accident has happened and some person has been injured, immediately puts a party on a higher plane of diligence and duty from which he acts with a view of preventing the possibility of a similar accident, which should operate to commend rather than condemn the person so acting. If the subsequent act is made to reflect back upon the prior one, although it is done upon the theory that it is a mere admission, yet it virtually introduces into the transaction a new element and test of negligence which has no business there, not being in existence at the time." The question received consideration in the very recent case of Hodges v. Percival (Ill.), 132 Ill. 53, 23 N.E. 423, and in the course of the discussion the court said: "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." The rule asserted in the cases from which we have quoted is declared in many other cases. Dougan v. Champlain Transportation Co., 56 N.Y. 1; Baird v. Daly, 68 N.Y. 547; Dale v. Delaware, etc., R. R. Co., 73 N.Y. 468; Salters v. President, etc., Canal Co., 3 Hun 338; Payne v. Troy, etc., R. R. Co., 9 Hun 526; Cramer v. City of Burlington, 45 Iowa 627; Hudson v. C. & N.W. R. R. Co., 59 Iowa 581, 13...