It is thus seen that the general condition of the bridge as one structure is involved in the issue to be tried, and all evidence as to its construction, the instability of its foundation and condition, tending to show that it was unfit and unsafe, and liable to cause the injuries complained of, was clearly relevant and admissible. In such case, the principle invoked by the authorities cited, to the effect that defects in other portions of a railroad track, not involved in the issue to be tried, nor connected with the place of injury, but so remote therefrom that they could not in any way have caused the injury, can have no application.' Undoubtedly evidence of a defective hand-hold of a car, after an accident caused by it, is admissible. Evidence of the existence of a defect in a street car, prior to an accident to a passenger suing for injuries, is competent to show the negligence of the company in not taking effectual steps to remedy it.' But, upon the issue of whether a certain platform was suitable and safe, evidence that platforms and scaffolds of the same width, but erected under different conditions, were commonly used is inadmissible. In the matter of time, testimony by the station agent that he does not know of any change in a switch between the time of an accident and of measurement taken nearly fourteen months afterwards, is sufficient foundation for the introduction of such measurements.* But evidence that a side track on which plaintiff was injured by collision with posts set thereon, had been originally part of the way as travelled by vehicles, is irrelevant; the question in issue being, the condition of the way at the time of the injury. Evidence of the condition of the defects in a railroad track some months after an accident-alleged to be due to such def cts-is admissible in connection with other evidence, showing that the condition of the track remained substantially the same. Measurements of the rails of a street car track, made from one to five months afterwards, may be admitted to show the condition at the 1 See Louisville & N. R. Co. v. Fox, 11 Bush, 505. Gutridge v. Missouri Pac. R. Co. 105 Mo. 520. 3 Chase v. Jamestown St. R. Co. 38 N. Y. S. R. 954. Fugler v. Bothe, 43 Mo. App. 44. 5 Brooke v. Chicago, R. I. &. P. R. Co. 81 Iowa, 504. "Hebert v. Northampton, 152 Mass. 266. Jacksonville & S. E. R. Co. v. Southworth, 135 Ill. 250. time of an accident, where there is evidence that the condition continued the same.' Evidence of the condition of the road-bed, immediately before and at the time a wreck occurred, at a place other than that of the wreck, is inadmissible in an action for injury caused by a wreck.' Evidence of the condition of the railroad track at a place other than that at which the accident in question happened, is inadmissible upon the condition of the track at the latter place.' It is competent to show in an action against a railroad company for damages for personal injuries, alleged to have been caused by the rapid running of a train, the condition of the track over which the train had to pass before reaching the place of accident. Testimony as to the management and speed of an engine at a crossing three quarters of a mile from a place where an accident has happened, is properly admitted as tending to show its management and speed at the latter within a minute or so thereafter.' In action to recover damages for a faulty switch, the person may testify at what place his foot had become fastened between the rails, where the shoe worn by deceased was before the jury and could be compared with that of the witness." $193. Changes Made by Carrier after Accident. Upon the question whether, in an action for injuries caused by machinery alleged to be negligently constructed, a subsequent alteration or repair of the machine by the defendant is competent evidence of negligence in its original construction, there has been some difference of opinion in the courts of several states. It is now settled, upon much consideration, by the decision of the Supreme Court of the United States, and by 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 'Birmingham Union R. Co. v. Alexander, 93 Ala. 133. 'Taylor, B. & H. R. Co. v. Taylor, 79 Tex. 104. 3 Grant v. Raleigh & G. R. Co. 108 N. C. 462. Jacksonville & S. E. R. Co. v. Southworth, 135 Ill. 250. 'Brooke v. Chicago, R. 1. &. P. R. Co. 81 Iowa, 504. "Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 36 L. ed. 105. 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.1 As was pointed out by the court in the last case, the decision in Readman v. Conway, 126 Mass. 374, 377, 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, 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.' The true rule and the reasons for it were well expressed in Morse v. Minneapolis & St. L. R. Co. above cited, in which Mr. Justice Mitchell, delivering the unanimous opinion of the Supreme Court of Minnesota, after referring to earlier 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 acci Morse v. Minneapolis & St. L. R. Co. 30 Minn. 465: Corcoran v. Peekskill, 10 Cent. Rep. 492, 108 N. Y. 151; Nalley v. Hartford Carpet Co. 51 Conn. 524; Ely v. St. Louis, K. C. & N. R. Co. 77 Mo. 34; Missouri Pac. R. Co. v. Hennessey, 75 Tex. 155; Terre Haute & I. R. Co. v. Clem, 7 L. R. A. 588. 123 Ind. 15; Hodges v. Percival, 132 Ill. 53; Lombar v. East Tawas, 86 Mich. 14; Shinners v. Proprietors of Locks & Canals, 12 L. R. A. 554, 154 Mass. 168. McKee v. Bidwell, 74 Pa. 218, 225, and cases cited; St. Louis & S. F. R. Co. v. Weaver, 35 Kan. 412. dent 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." It is said: "To declare such evidence competent is to offer an inducement to omit the use of such care as new information may suggest, and to deter persons from doing what the new experience informs them may be done to prevent the possibility of future accidents." Other cases determine that such evidence is open to the objection that it raises distinct and independent issues for the consideration of the jury.' 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 a 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 its gets older, therefore it was foolish before." 994 1 Morse v. Minneapolis & St. L. R. Co. 30 Minn. 365, 468. Terre Haute & I. R. Co. v. Clem, 7 L. R. A. 588, 123 Ind. 15. Nalley v. Hartford Carpet Co. 51 Conn. 524, 50 Am. Rep. 47; Payne v. • Hart v. Lancashire & Y. R. Co. 21 L. T. N. S. 261, 263. CHAPTER XXXVI. NEGLIGENCE TOWARD CHILDREN IMPUTED NEGLIGENCE. 194. Evidence of Carrier's Negligence towards Children. § 195. When Negligence of Another will be Imputed to the Passenger. a. Recovery Denied in an Action for the Benefit of the Child. $196. By Parent or Master for his Own Benefit. § 197. Where the Action is for the Benefit of the Child. § 198. What is Negligence of the Parent or Guardian. § 199. Recovery by Wife in Case of Husband's Negligence. $200. Recovery where Wife Sues. $201. Action by Husband and Children. $202. Negligence of Driver not Imputed to Guest or Passenger. § 203. Where Each of Two Carriers is Negligent, or Where One only is. $194. Evidence of Carrier's Negligence towards Children. Evidence that the carrier, having accepted as a passenger a child of tender years, has failed to warn him of danger, either in entering the conveyance, or in occupying an unsafe position, or in exposing himself to danger in leaving the carriage,—will charge the carrier with responsibility. The unquestioned rule is, that negligence cannot be charged to a child of tender years. Negligence cannot be imputed to one who has not sufficient capacity or discretion to understand danger and use proper means to guard against it.' 'Ridenhour v. Kansas City Cable R. Co. 102 Mo. 283; Wilton v. Middlesex R. Co. 107 Mass. 108; Crissey v. Hestonville, M. & F. Pass. R. Co. 75 Pa. 83; Maher v. Central Park, N. & E. R. Co. 67 N. Y. 52; Hemingway v. Chicago, M. & St, P. R. Co. 72 Wis. 42; Metropolitan R. Co. v. Moore, 83 Ga. 453; East Saginaw City R. Co. v. Bohn, 27 Mich. 503. Stone v. Dry Dock, E. B. & B. R. Co. 115 N. Y. 104; Bradford v. Downs, 126 Pa. 622; Dealey v. Muller, 149 Mass. 432; Westbrook v. Mobile & O. R. Co. 66 Miss. 560. Ridenhour v. Kansas City Cable R. Co. 102 Mo. 270. But see Casey v. Smith, 9 L. R. A. 259 and note, 152 Mass. 294. |