City of Bloomington v. Legg

Mr. Justice Phillips delivered the opinion of the Court: The declaration contained several counts, some of which alleged that the spouts of the fountain turned downward at an angle at the end, whilst other counts charged the spouts as projecting straight out. Evidence was admitted, over the defendant’s objection, that other accidents had occurred of a similar character to that which resulted in injury to the deceased. Evidence of other accidents occurring from the same cause is by many courts held incompetent. This court has held such evidence competent, not for the purpose of showing independent acts of negligence, but as tending to show the common cause of these accidents is a dangerous, unsafe thing. Where an issue is made as to the safety of any machinery or work of man’s construction which is for practical use, the manner in which it has served that purpose, when put to that use, would be a matter material to the issue, and ordinary experience of that practical use, and the effect of such use, bear directly upon such issue. It no more presents a collateral issue than any other evidence that calls for a reply which bears on the main issue. Such evidence is held competent by the weight of authority. Ottawa Gas Light & Coke Co., v. Graham, 35 Ill. 346; City of Chicago v. Powers, Admx., 42 Ill. 170; City of Fort Wayne v. Coombs et al., 107 Ind. 75; City of Topeka, v. Sherwood, 39 Kan. 690; Dist. of Columbia v. Armes, 107 U. S. 519; Darling v. Westmoreland, 52 N. H. 401. The same rule is adopted in Georgia, Alabama, Connecticut, Minnesota, Michigan, and other States. In addition to being evidence material to the issue to show a dangerous condition, it is also evidence material as tending to show notice. City of Chicago v. Powers, Admx., supra. The frequency of such accidents would create a presumption of knowledge, and would be material to the question of diligence used to obviate the cause of injury. The further point is made that plaintiff was permitted to show, over the objection of defendant, that other accidents occurred on account of the fountain spouts, when they were not in the same condition as they were at the time of injury to the deceased. The rule is clear, that to render evidence of similar accidents, resulting from the same cause, competent, it must appear, or the evidence must reasonably tend to show that the instrument or agency which caused the injury was in substantially the same condition at the time such other accidents occurred, as at the time the accident complained of was caused. The fountain spouts, when the fountain was first erected, projected two or three inches from the standard, and an elbow was screwed on to the outer end, which, in position, was perpendicular to the end of the spout, and projected downward. That elbow was removed, and that was the changed condition. It is not possible for a trial court to know the fact to be testified to by a particular witness, and whenever a witness was inquired of as to other accidents, the court, when the question was objected to, ruled in the presence of the jury that such evidence, if there were changed conditions, could not be considered to the prejudice of the city. And on the trial the court instructed the jury .that they were not “to consider any testimony regarding accidents or trouble with horses, occurring at the fountain in question, at a time or times when you believe from the evidence the spouts complained of were in a materially different condition from what they were at the time of the injury complained of in this case.” Considering the instruction, and what was said by the court in ruling on the objection, we are not disposed to hold there was such error in the admission of that evidence that this judgment should be reversed. It is insisted that the court erred in allowing proof that the spouts were entirely removed after the injury to deceased. “Evidence of precaution taken after an accident is apt to be interpreted by a jury as an admission of negligence.” Hodges v. Percival, 132 Ill. 53. Such evidence is not admissible; but it appears that the answer made by the witness was on cross-examination, and in response to a question asked by appellant’s counsel, to which counsel asking the question objected, and the objection was overruled; on re-examination counsel for plaintiff inquired of the witness as to the same matter, to which counsel for appellant objected; no exception, however, was preserved in the record to any of the rulings of the court on these objections; there is, therefore, nothing for this court to review on that question. We have carefully considered the objections made to the second and seventh instructions given for plaintiff, and are of opinion that they are not subject to the criticism made, and concur with the view expressed by the Appellate Court with reference to those instructions. We are of opinion that there is no reversible error in this record, and the judgment of the Appellate Court is affirmed. Judgment affirmed.