
    Robert Corcoran, Resp’t, v. The Village of Peekskill, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Evidence—Competency of.
    On the trial of an action brought to recover damages for injuries received by falling into an area, the plaintiff, against the objection of defendant, was permitted to prove that after the accident a fence was built around the area, which substantially protected travelers against any damages from the same. The said fence was built by the owner of the adjoining property who had no connection whatever with the defendant. Meld, error. Danforth, J., dissenting. Cases distinguished.
    2. Same—Evidence 'of repairs after accident.
    In cases where the party is sued for an accident, evidence that soon thereafter he made repairs or improvements, does not tend to prove that that party sued knew, or was bound to know, that the machine or structure was imperfect, unsafe or out of repair.
    3. Same—Negligence—Proof of.
    Such evidence has no tendency whatever to show that the machine or structure was not previously in a reasonably safe and proper condition, or that the defendant might in the exercise of reasonable care and diligence have made it more perfect, safe or secure.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the plaintiff, entered upon a verdict of a jury at the circuit and affirming an order denying a motion for a new trial.
    
      J. D. McMahon, for app’lt; E. Countryman, for resp’t.
    
      
       Reversing 34 Hun, 632, mem.
      
    
   Earl, J.

Whether the area was sufficiently guarded so-as to protect travelers upon the street from falling into it, was a question of fact for the determination of the jury. It was, however, a close question and therefore the defendant had the right to have it submitted to the jury upon strictly competent evidence.

The plaintiff, against the objection of defendant, was permitted to prove that after the accident a fence was built around the area which substantially protected travelers against any danger from the same.

This evidence, we think, was incompetent. Such evidence has sometimes been received by courts in cases where the party sued for an accident has soon thereafter made repairs or improvements, for the purpose of making the 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 could 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. Del. and Hudson Canal Co., (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 Co. (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 afterwards 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 and Boston R. R. Co. (9 Hun, 526), the action 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 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 defendant 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. The Champlain Transportation Co. (56 N. Y., 1), plaintiff’s intestate slipped from the deck of a steamboat under the outer railing and was drowned, and proof 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. Del., L. and W. R. R. Co. (73 N. Y., 468), the plaintiff was a passenger in one 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 the 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.  