Farrall v. Universal Garage Co.

Allen, J. There would be much force in the defendant’s motion for judgment of nonsuit if the plaintiff was seeking to recover damages on account of the negligence of .Lee, because he took the automobile after his working hours were over, and there is good reason for urging that at that time he was not in the employment of the defendant, but this is not the ground of the plaintiff’s action. *391 He is demanding damages, not for tbe negligence of Lee, but for tbe negligence of tbe defendant itself in leaving tbe automobile unprotected, witb tbe doors open and no one in charge, so tbat any one passing could take it, and tbat bis automobile was taken and damaged by reason of tbe failure of tbe defendant to exercise ordinary care, and on tbis phase of tbe case we are of opinion there is evidence for tbe consideration of tbe jury. There is, however, an exception which entitles tbe defendant to a new trial, and tbat is to tbe admission of evidence tbat since tbe injury complained of tbe defendant has made changes in tbe premises by erecting inner gates at tbe garage. A leading case on this subject is Hawthorne v. R. R., 144 U. S., 202, in which the Court says: “Upon tbis question there has been some difference of opinion in the courts of the several States; but it is now settled, upon much consideration, by the decisions of the highest courts of most of the States in which the question has arisen, tbat the evidence is incompetent because the taking of such precaution against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove tbat the defendant bad 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. “The true rule and the reasons for it were well expressed in Morse v. Railway 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: Hut, on mature reflection, we have concluded tbat evidence of tbis kind ought not to be admitted under any circumstances, and tbat the rule heretofore adopted by tbis Court is on principle wrong; not for the reason given by some courts, tbat the acts of the employees in making such repairs are not admissible against their principals, but upon the broader ground tbat 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 bis new experience, after an unexpected accident has occurred, and as a measure of extreme caution, be may adopt additional safeguards. Tbe more careful a person is, the more regard be has for the lives of others, the more likely be would be to do so; and it would be unjust tbat be 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 interpretion upon human conduct, and virtually bolds out an inducement for continued negligence.’ 30 Minn., 465, 468. *392 “Tbe 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 the 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 it gets older, therefore it was foolish before.’ Hart v. Railway, 21 Law T. (N. S.), 261, 263.” This authority is cited and the excerpts quoted approved in McMillan v. R. R., 172 N. C., 855, and the same doctrine is declared in Lowe v. Elliott, 109 N. C., 582; Myers v. Lumber Co., 129 N. C., 252; Aiken v. Mfg. Co., 146 N. C., 328, and in other cases. It is true there are exceptions to the rule, illustrated by Blevins v. Cotton Mills, 150 N. C., 493; Tise v. Thomasville, 151 N. C., 281; Boggs v. Mining Co., 162 N. C., 394; Pearson v. Clay County, 162 N. C., 224, where such evidence is admitted to show that the plaintiff’s injury was •brought about in the way claimed by him, or on the question as to whose duty it was to make repairs, when this was in controversy, or to show conditions existent at the time of the injury, or in contradiction of a witness, but the evidence admitted here is not within any of the exceptions. The defendant introduced McLaurin, its manager, who testified on cross-examination that there was no inner gate when the automobile was taken from the garage, and he was afterwards recalled by the plaintiff for further cross-examination, and it was then that he was permitted to testify over the objection of the defendant that inner gates were erected at the garage about four months after the injury complained of. This latter evidence did not tend to show that the plaintiff was injured in the way he claimed or conditions existing at the time of the injury, because the witness had already testified that there were no inner gates at the garage at the time of the injury, nor was the question as to whose duty it was to make repairs raised, and it had no tendency to contradict any statement made by any witness for the plaintiff or the defendant. The evidence was important because it enabled the plaintiff to urge before the jury that the defendant, by erecting the inner gates, had in effect admitted that the precautions of the defendant at the time the automobile was taken were insufficient, and that they had negligently failed to erect a barrier which would have prevented the taking of the automobile. There is also an exception in the record to that part of the charge on the issue of damages in which his Honor instructed the jury that the *393 measure o£ damages was the expense necessary to put the automobile in the same condition as near as possible as it was before it was injured. The correct and safe rule is the difference between the value of the machine before and after, its injury, and in estimating tbis difference it is proper for the jury to consider the cost and expenses of repairs and in some instances tbis may be the damage wbicb a party may be entitled to recover, but in tbis case the cost of repairs might be more or less, and it is better to adhere to the well settled rule. For the error pointed out there must be a New trial.