Corcoran v. Village of Peekskill

machine or structure which caused the accident more secure, convenient or safe, and its admissibility has been defended on the ground that the act of making the repairs or improvements was an admission that the machine or structure was theretofore imperfect, out of repair or unsafe. We think, however, that such evidence does not tend to prove that the party sued knew, or was bound to know, that the machine or structure was imperfect, unsafe or out of repair. After an accident has happened it is ordinarily easy to see how it eoiild have been avoided; and then for the first time it frequently happens that the owner receives his first intimation of the defective or dangerous condition of the machine or structure which caused or led to the accident. Such evidence has no tendency whatever, we think, to show that the machine or structure was not previously in a reasonably safe and perfect condition, or that the defendant ought, in the exercise of reasonable care and diligence, to have made it more perfect, safe and secure. While such evidence has no legitimate bearing upon the defendant’s negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury. Hence in this court, and generally in the Supreme Court, it has been held erroneous to receive such evidence. In Salters v. Delaware & Hudson Canal Company ( 3 Hun 338 ), it was held erroneous to admit evidence to show that after the accident the railroad company changed the character of its switch. Landon, J., writing the opinion said: “ The plaintiff was permitted to give evidence to the effect that after the accident the defendants substituted a target switch for the common one. Within the ruling in Dougan v. Champlain Transportation Company ( 56 N. Y. 1 ), this seems to be error. Whether the defendants were negligent was a question to be decided upon the facts as they existed at the time of the injury. What the defendants did afterward was immaterial, unless their acts could be construed as equivalent to their declaration that they were negligent at the time of the injury. But the question appears to be settled by authority and not open for discussion in this court.”

In Payne v. Troy & Boston Railroad Company ( 9 Hun 526 ), the action1 was to recover damages for an injury to plaintiff’s horse, received while passing over a crossing upon defendant’s track. The plaintiff was allowed, against defendant’s objection and exception, to show that shortly after the accident the defendant took up the planks at the crossing and replaced them by new ones. This was held to be error. Learned, P. J., writing the opinion said: “ The only way in which such subsequent acts could bear upon the question would be as an admission that they had been negligent. So a jury would be likely to understand such proof. Yet it would plainly be unjust to the defendants that they should not take additional precautions against accidents, without the risk that these precautions should be construed into an admission of prior negligence. To put down a new plank was an act which the defendants might do for various reasons. Yet it would be easy to argue from that act to a jury, that the defendants themselves knew that the crossing had been badly constructed, or was out of repair. It seems to me that this evidence was improperly admitted, and that a new trial is therefore necessary.” In Dougan v. Champlain Transportation Company ( 56 N. Y. 1 ), plaintiff’s intestate slipped from the deck of a steamboat under the outer railing and was drowned, and nroof was offered by the plaintiff that after the accident the defendant boarded up the space between the railing and the deck; and this court held that the' evidence was properly excluded. Grover, J., writing the opinion said: “ This was immaterial; its negligence is to be determined by what was known before and at the time of the accident.” In Dale v. Delaware, Lackawanna & Western Railroad Company ( 73 N. Y. 468 ), the plaintiff was a passenger in one of defendant’s ' cars and was seated near an open window with his elbow on the window sill, and while passing over a bridge his elbow was struck by some substance and his arm broken. It appeared that some months after the accident the bridge was removed and replaced by an iron one with trusses that did not rise as high as the window sill. Testimony 'was received under

objection to tbe effect that on the new bridge the distance between the rails and the sides of the trusses was greater than the old one. The court charged the jury that they might take that fact into consideration in determining whether the defendants were not guilty of negligence in allowing the old bridge to remain. This charge was held to be erroneous.

In all the cases to which we have thus called attention the change or improvement, after the accident, was made by the defendant in the action. But here the additional protection against danger was erected after the accident by the owner of the adjoining property, who had no connection whatever with the defendant. Even if it could have been claimed that this act, if it had been done by the defendant or under its orders, would in any degree have been a confession that the area was previously insufficiently protected, and that thus the defendant had been previously negligent, yet the act of a stranger certainly could furnish no legitimate evidence against the defendant; and we cannot say that it did not have some influence upon the jury in reaching their verdict.

We are, therefore, of opinion that the judgment should be reversed and a new trial granted, costs to abide event.

All concur, except Danforth, J., dissenting.

Judgment reversed.