Imágenes de páginas
PDF
EPUB

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 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. Morse v. Minneapolis & St. Louis Railway, 30 Minnesota, 465; Corcoran v. Peekskill, 108 N. Y. 151; Nalley v. Hartford Carpet Co., 51 Connecticut, 524; Ely v. St. Louis &c. Railway, 77 Missouri, 34; Missouri Pacific Railway v. Hennessey, 75 Texas, 155; Terre Haute & Indianapolis Railroad v. Clem, 123 Indiana, 15; Hodges v. Percival, 132 Illinois, 53; Lombar v. East Tawas, 86 Michigan, 14; Shinners v. Proprietors of Locks & Canals, 154 Mass. 168.

As was pointed out by the court in the last case, the decision in Readman v. Conway, 126 Mass. 374, 377, cited by this plaintiff, has no bearing upon this question, but simply held that in an action for injuries from a defect in a platform, brought against the owners of the land, who defended on the ground that the duty of keeping the platform in repair belonged to their tenants and not to themselves, the defendants' acts in making general repairs of the platform after the accident" were in the nature of admissions that it was their duty to keep the platform in repair, and were therefore competent."

The only States, so far as we are informed, in which subsequent changes are held to be evidence of prior negligence, are Pennsylvania and Kansas, the decisions in which are supported by no satisfactory reasons. McKee v. Bidwell, 74 Penn. St. 218, 225, and cases cited; St. Louis & San Francisco Railway v. Weaver, 35 Kansas, 412.

The true rule and the reasons for it were well expressed in Morse v. Minneapolis & St. Louis Railway, above cited, in which Mr. Justice Mitchell, delivering the unanimous opinion of the Supreme Court of Minnesota, after referring to earlier

Opinion of the Court.

opinions of the same court the other way, 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 employés 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 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." 30 Minnesota, 465, 468.

The same rule appears to be well settled in England. In a case in which it was affirmed by the Court of Exchequer, Baron Bramwell said: "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." Hart v. Lancashire & Yorkshire Railway, 21 Law Times (N. S.) 261, 263.

As the incompetent evidence admitted against the defendant's exception bore upon one of the principal issues on trial, and tended to prejudice the jury against the defendant, and it cannot be known how much the jury were influenced by it, its admission requires that the

Judgment be reversed, and the case remanded to the Supreme Court of the State of Washington, with directions to set aside the verdict and to order a new trial.

Opinion of the Court.

RED RIVER CATTLE COMPANY v. SULLY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.

No. 249. Submitted March 28, 1892. Decided April 4, 1892.

When the errors assigned depend upon the terms and construction of a contract, it should appear in the record.

THIS was an action brought by the defendant in error to recover damages for the non-performance of a contract contained in a bill of sale of cattle running on a range and in the pastures of the plaintiffs in error in Texas. The record contained no copy of this contract. The brief of the counsel for plaintiffs in error stated "the questions involved" thus:

"1. Under the contract, should the winter loss from December 29, 1883, to October 1, 1885, be added to the number of cattle actually found and counted? or should only the winter loss occurring from December 29, 1883, to the spring of 1884, be added to the number actually found and counted?

"2. Under the contract, before the Red River Cattle Company could recover for any excess over 3700 head owned by it on the 29th of December, 1883, was it necessary that more than 3700 should be actually found and counted? or was it only required that the number actually found and counted, when added to the winter loss occurring after December 29, 1883, should exceed 3700 head?”

Mr. Sawnie Robertson and Mr. W. O. Davis for plaintiffs in error.

Mr. James W. Brown for defendant in error.

THE CHIEF JUSTICE: The only errors assigned which might call for consideration depend upon the terms and the construction of a contract which does not appear in the record.

The judgment is, therefore,

VOL. CXLIV-14

Affirmed.

Counsel for Plaintiff in Error.

MISSOURI ex rel.

THE QUINCY, MISSOURI AND

PACIFIC RAILROAD COMPANY v. HARRIS.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

[blocks in formation]

No Federal question is involved when the Supreme Court of a State decides that a municipal corporation within the State had not power, under the constitution and laws of the State, to make the contract sued on.

MANDAMUS, to compel the performance of an alleged subscription by Sullivan County, Missouri, to stock of a railroad company. The defence was that no valid subscription had been made under the constitution and laws of Missouri. The Supreme Court of the State, in rendering the judgment to which this writ of error was sued out, said, in its opinion:

[ocr errors]

"The power of the county court to subscribe to the stock of a railroad company was made by the constitution of 1865 and Gen. Stat., 1865, p. 338, § 17, to depend upon the fact that two-thirds of the qualified voters of the county at a regular or special election held therein should assent thereto. Taking in this case the admission that the registration books offered in evidence contained the names of 1940 persons as qualified to vote in said county at said election, it is evident that two-thirds of the qualified voters of the county of Sullivan did not assent to said subscription, as only 1049 of said voters voted in favor of the subscription. Besides this, while there was evidence tending to show that the railroad company had complied with the conditions of the subscription, there was also evidence to show that it had not complied, and the trial court might on this ground have well denied the relief asked. The judgment, for the reasons given, is hereby

affirmed."

Mr. John P. Butler for plaintiff in error.

Syllabus.

Mr. A. W. Mullins for defendants in error. Mr. D. M. Wilson was with him on the brief.

THE CHIEF JUSTICE: The writ of error is dismissed because no Federal question is involved, upon the authority, among other cases, of Railroad Co. v. Rock, 4 Wall. 177, 181; Lehigh Water Co. v. Easton, 121 U. S. 388; N. O. Water Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18, 30; and Railroad Co. v. Todd County, 142 U. S. 282.

Writ of error dismissed.

GLASPELL v. NORTHERN PACIFIC RAILROAD

COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NORTH DAKOTA.

No. 1330. Submitted March 14, 1892.

Decided April 4, 1892.

Upon the trial of this case in the District Court in Dakota, a verdict was returned, November 24, 1888, in favor of plaintiff for $12,545.43, and judgment was rendered accordingly November 26, 1888. On November 28, 1888, the court made an order by consent extending the time for serving notice of intention to move for a new trial, for motion for new trial, and for settlement of a bill of exceptions until January 28, 1889, which time was subsequently extended by order of court for reason given, to February 28, and thence again "for cause" to March 28, 1889, upon which day the following order was entered: "The defendant having served upon plaintiff a proposed bill of exceptions herein, the time for settlement of same is hereby extended from March 28, 1889, to April 10, 1889, and the time within which to serve notice of the intention to move for new trial, and within which to move for new trial, is hereby extended to April 13th, 1889." The time was again extended to May 31, 1889, and on the 23d day of that month the following order was entered: "The date for settling the bill of exceptions proposed by the defendant herein is hereby extended to June 29, 1889. Defendant may have until

ten days after the settling of said bill within which to serve notice of intention to move for a new trial, and within which to move for a new trial in said action." This was the last order of extension. On December 14, 1889, there was filed in the office of the clerk of the District Court a notice of motion for new trial, which was as follows: "Take notice that the motion for a new trial herein will be brought on for argu

« AnteriorContinuar »