
    Primiano Iannone, as Administrator, etc., of Frank Aloise, Deceased, Respondent, v. United Engineering and Construction Company, Appellant.
    Fourth Department,
    March 6, 1912.
    Master and servant — negligence •— death by explosion of dynamite — evidence — subsequent precautions.
    Action to recover for the death of one killed by an explosion of dynamite used for rock excavation. Held, that the jury were justified in finding the master negligent in failing to employ means to give warning to employees that a blast was about to be fired.
    In such action it is reversible error to allow the plaintiff to show that after the accident the defendant used a whistle to notify employees that a blast was about to be fired.
    Appeal by the defendant, the United Engineering and Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of June, 1911, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 29th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Clinton B. Gibbs [Layton H. Vogel with him on the brief], for the appellant.
    
      Horace O. Lanza and Angelo F. Scalzo, for the respondent.
   Robson, J.:

Plaintiff’s intestate, an employee of defendant, and being then engaged in its service, was injured by an explosion of dynamite used by it in rock excavation. His death followed as a result of the injury. Plaintiff based his claim that the injury was due to defendant’s negligence principally upon the charge that the system, or method, then employed by it to give warning to its employees that a blast was about to be fired was insufficient and improper. Evidence was presented tending to prove that the warning signals used by others for that purpose included the sounding of a steam whistle, or, in the absence of the means of giving that warning, by blowing a horn. A finding that the system of signals then in use by defendant was inadequate was warranted by the proof. But the question of the inadequacy of the signals then employed was a close one. Plaintiff was permitted to show that after the accident defendant itself adopted and thereafter continued the practice of sounding a steam whistle as a signal that a blast was about to be fired. Defendant duly objected to this evidence and exception was taken to its reception. We think this evidence was incompetent. It was offered and received as a part of plaintiff’s evidence in chief and could be considered as then material only for the purpose of showing defendant’s negligence at the time of the accident. Evidence of alterations, repairs or improvements made by defendant after an accident is usually incompetent either to show defective conditions at the time of the accident, or for other purposes. (Corcoran v. Village of Peekskill, 108 N. Y. 151; Getty v. Town of Hamlin, 127 id. 636; Young v. Mason Stable Co., Ltd., 96 App. Div. 305, 310.) The apparent reason why such evidence is both incompetent and prejudicial is thus stated by O’Brien, J., in Clapper v. Town of Waterford (131 N. Y. 382, 390): Upon whatever pretence such evidence is put into the case it is generally used to mislead the jury. It is sometimes accepted by them as an admission of negligence, and its natural tendency is undoubtedly to influence them in that direction. Whether the defendant was negligent was a question to be decided upon the facts as they existed at the time of the injury, and anything that was done by the commissioner afterwards could have no legitimate bearing on that question, and since this action now lies against the town such testimony should be excluded.” (See, also, 8 Encyc. Ev. 914-918.) Evidence of a subsequent change in the system or method of conducting defendant’s business is also incompetent for a like reason. (Baird v. Daly, 68 N. Y. 547, 551; Motey v. Pickle Marble & Granite Co., 74 Fed. Rep. 155, 159; Southern Ry. Co. v. Simpson, 131 id. 705.)

The case appearing in the record now before us does not present anything to show that defendant claimed that it was, at the time of the accident, impracticable to give a warning signal by the use of a horn, a method suggested by plaintiff’s witnesses as a proper one, and no other fact or condition appears as a reason why this evidence was competent as being an exception to the general rule that it is inadmissible.

The judgment and order should be reversed and a new trial granted, with costs of this appeal to appellant to abide event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  