Baran v. Reading Iron Co. , 202 Pa. 274 ( 1902 )

Opinion by

Mr. Justice Fell,

In support of the averments of negligence testimony was introduced at the trial to show that the boiler which exploded was not properly supported, and that it was imprudently allowed to cool while connected with other boilers which were in full operation. Offers were then made to prove that after the accident a boiler used to replace the one that exploded was supported in a different manner, and that an employee in charge of the boilers in the mill received instructions from the defendant company thereafter to disconnect boilers from the steam main when the fires were drawn. The distinct purpose of these offers was to show a recognition by the defendant of its negligence in not having properly supported and managed the boiler, and the overruling of them raises the question whether evidence of precautions taken after the alleged negligent act is admissible for the purpose of showing antecedent negligence.

The reception of this kind of testimony is undoubtedly sanctioned by some of our cases, but in most of these cases the testimony introduced was not of sufficient importance to require a reversal, or there was some ground for its introduction other than that it tended to show antecedent negligence. In none of the cases has the subject been discussed, and it can scarcely be said that this court has ever been deliberately committed to the proposition that evidence of precautions taken or repairs made after an accident is admissible as tending in itself to prove prior negligence. The first case that appears to sustain this proposition is Penna. Railroad Co. v. Henderson, 51 Pa. 315, decided in 1866. A drover in charge of live stock which was being carried by the railroad company on a branch road reached a junction where he was to take the cars on the main line. He was directed to go to a platform between the tracks and wait for his train, which was slowing up. While waiting by the side of the train until it should stop, he was struck by an express train, which passed on the other track. The platform was six feet wide, and the cars overlapped it so as to leave only two feet and a half of clear space in which to stand. It was said in the opinion, in disposing of one of the specifications of error, that it was clearly proper for the plaintiff to show that immediately after the accident the agent of the railroad telegraphed the general superintendent stating the situation of the platform and that he thought it ought to be removed, and that it was removed the next day. The main question considered in the opinion was whether the company could by contract with a passenger relieve itself from liability for its negligence, and this question was discussed at length. In view of the manifest and gross negligence of the company in so locating a platform that it would be a death trap, the court may have been of opinion that the admission of this testimony did not call for a reversal or that the testimony was competent as showing the declarations and acts of the officers of the company immediately connected with the accident. It was treated both in the argument of the case and in the opinion as a matter of minor importance and merely incidental to the main question involved in the case. The statement however in the opinion that the testimony was “ clearly proper,” gave rise to what has been considered a rule on the subject in this state. A like statement was made in the opinion in West Chester Railroad Co. v. McElwee, 67 Pa. 311, another case in which the negligence of the defendant was so manifest that proof of subsequent alterations could not make it more apparent. In McKee v. Bidwell, 74 Pa. 218, attention was called to the cases of Railroad Co. v. Henderson and Railroad v. McElwee, but the reversal was on the ground that the question of the plaintiff’s negligence should have been submitted to the jury. Penna. Telegraph Co. v. Varnau, 15 Atl. Repr. (Pa.) 624, may be classed with these cases, and Pittsburg Southern Railway Co. v. Taylor, 104 Pa. 306, Sweeny v. Barrett, 151 Pa. 600, Derk v. Northern Central Railway Co., 164 Pa. 243, and Card v. Columbia Township, 191 Pa. 254, merely recognize the existence of the rule, but predicate nothing of it. In Lederman v. Penna. Railroad Co., 165 Pa. 118, there was a special reason for the admission of the testimony to show that safety gates had been erected after the accident. The jury had been on the ground and had seen them, and it was proper in rebuttal to show that they were not there when the accident happened. In Gavigan v. Atlantic Refining Co., 186 Pa. 604, care was taken not to sanction the rule, and in Hager v. Wharton Township, 200 Pa. 281, doubt as to its correctness was expressed.

No judgment appears to have been affirmed where the admission of such testimony was of vital importance at the trial, and in the later cases the rule has been recognized with reluctance and doubt suggested as to its validity. The time has come when we should distinctly say that we do not approve the rule, and that the cases which may be considered as announcing and sustaining it are to that extent overruled. The admission of such testimony cannot be defended on principle. It is not more likely to show that there was negligence before the accident than that the occurrence of the accident first suggested the use of methods or appliances not before thought of; it applies to conduct before an accident a standard of duty determined by after-acquired knowledge; it punishes a prudent and well-meaning defendant who guards against the recurrence of an accident he had no reason to anticipate, or who out of a considerate regard for the safety of others exercises a higher degree of care than the law requires.

While the authorities on this question in other jurisdictions are not harmonious, the trend of decision is most decidedly against the admission of such testimony, and in some jurisdictions, notably Minnesota, where the testimony was formerly admitted, the rule has been changed. In Hart v. Lancashire and Yorkshire Railway Co., 21 L. T. (N. S.) 261, it was said by Bramwell, B.: “ There are matters of considerable importance involved in this particular case. One of them is that 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 rule of exclusion was affirmed by the Supreme Court of the United States in the case of Columbia and Puget Sound Railroad Company v. Hawthorne, 141 U. S. 202; 12 Sup. Ct. Repr. 691; and Mr. Justice Guay said in delivering the opinion of the court: “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 in 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 considered as an admission of responsibility for the past. It has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and it is calculated to distract the minds of the jury from the real issue and to create a prejudice against the defendant.” A leading case on the subject is Morse v. Minneapolis & St. Louis Ry. Co., 30 Minn. 465; 16 N. W. Repr. 358, which overrules a number of previous decisions of that court. In the opinion by Mitchell, J., it is 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 in principle wrong, not for the reason given in 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 offer no legitimate basis for construing an act as an admission of previous neglect of duty.” To the same effect are the decisions in nearly every state in which the subject has been considered. Among the multitude of cases some of the more recent are: Clapper v. Waterford, 131 N. Y. 382; Whelton v. West End St. Railway Co., 172 Mass. 555; Hodges v. Percival, 132 Ill. 53; Howe v. Medaris, 183 Ill. 288; Terre Haute, etc., R. R. Co. v. Clem, 123 Ind. 15; Sievers v. Peters Box & Lumber Co., 151 Ind. 642; Town of Waterbury v. Waterbury Traction Co., 50 Atl. Repr. (Conn.) 3; Green v. Ashland Water Co., 101 Wis. 258; Beard v. Guild, 107 Iowa, 476; Aldrich v. Concord, etc., R. R. Co., 67 N. H. 250; Alcorn v. Chicago, etc., Railroad Co., 108 Mo. 81; Louisville, etc., R. R. Co. v. Malone, 109 Ala. 509; Anson v. Evans, 19 Colo. 274; Gulf, etc., Ry. Co. v. Compton, 75 Tex. 667; Sappenfield v. Main Street, etc., Railroad Co., 91 Cal. 48; Giffin v. City of Lewiston, 55 Pac. Repr. (Idaho) 545; Illinois Central Railroad Co. v. Wyatt, 104 Tenn. 432; Standard Oil Co. v. Tierney, 17 S. W. Repr. (Ky.) 1025; Louisville, etc., Railroad Co. v. Bowen, 39 S. W. Repr. (Ky.) 31; Noble v. St. Joseph, etc., St. Ry. Co., 98 Mich. 249. With these decisions we are in entire accord. The cases are however to be distinguished from a class with which they are sometimes confounded, in which evidence of acts of repair or construction is received to prove dominion or control.

The only remaining question raised by the specifications that need be considered is whether there was error in the instruction that the plaintiffs could not recover without affirmative proof of negligence that caused the explosion. If we assume that proof of the fact of the explosion of the boiler, resulting in injury to a person not connected with the defendant’s works, made out a prima facie case which called for explanation by the defendant, and in the absence of it would sustain a verdict on the ground of negligence, the only burden cast on the defendant was to show that due care had been exercised. In the exceptional cases in which the maxim, res ipsa loquatur, applies, the burden on the defendant is not that of satisfactorily accounting for the accident, but of showing freedom from fault: Stearns v. Ontario Spinning Co., 184 Pa. 519; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350. The plaintiffs did not rest on proof of the explosion and leave the duty of explanation with the defendant. In order to establish a basis for a theory advanced by experts they proved the circumstances under which the explosion took place, and all the facts connected with the operation and management of the boiler, and on these proofs the case was submitted to the jury. This testimony not only failed to show negligence, but it affirmatively showed that ordinary care had been exercised, and rebutted any presumption that might be said to arise from the mere fact of the explosion.

The judgment is affirmed.