Lowe v. . Elliott

14 S.E. 51, 109 N.C. 581

• Court: Supreme Court of North Carolina
• Decided: September 5, 1891
• Status: Published

Opinion

Shei’HERd, J.:

Under the view which we have taken of this case it is unnecessary to pass upon the alleged inconsistencies in the findings of the jury, and all of the objections urged against the rulings of his Honor.

In view of the findings upon the second and sixth issues, it was necessary for the plaintiff to have the fourth issue found in his favor, and to this end he was permitted, against the objection of the defendants (for the purpose of showing negligence by running the “cutter-head” at an excessive speed), to prove that, after the accident, the defendants substituted another “cutter-head” made of brass, and that they ran this at a much slower rate of speed.

In Morse v. Minneapolis & St. R. R. Co , 11 Am. & Eng., R. R. cases, 168, the Court, after remarking that such evidence had been admitted by them in some previous cases, deliberately overruled such former decisions. The Court say that “ it forms no basis for construing such act as an admission of previous neglect of duty. A person may have exercised all the care which 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.” Dougan v. Champlain Transportation Co., 56 N. Y., 1; Sewell v. City of Cohoes, 11 Hun., 626; Baird v. Daily, 68 N. Y., 547.

While we do not say that there ma}r not be peculiar cases in which such testimony may he relevant, we are entirely satisfied with the above reasoning as applicable to the facts of the present case. The testimony was improper, and probably had a very important influence with the jury in making up their verdict.

Error.