Mann v. S. C. & P. R.

Seevers, J. i.hailboads: evidence : damages’: The accident by means of which the plaintiff’s husband was killed is the same as in Lockev. S. C. & P. R. R. Co., ante, 109. The pleadings, evidence , , i o ’ and instructions, with a single exception, are substantially the same in' both cases, and so are the grounds relied on to obtain a-reversal. The decision in that case is fully applicable to this in every respect but one, which we will proceed to notice. It was an important and material question before the jury, whether at the time of the accident the timbers and piling on which the bridge rested were sound or decayed. The plaintiff claimed thelatter. To maintain this issue one Aldrich was introduced as a witness and gave testimony tending to show that the piling was decayed at the time the accident. occurred, and that a few days previous to the trial he had sawed off of one of said piling a piece of timber which he exhibited and in reference thereto testified: “There were three piling there; they were rotten also about the same as this,” referring to the piece so sawed off. Whereupon the plaintiff offered the same in evidence. To which the defendant objected because the same was incompetent and for the réason the piece of the timber was taken from a portion of the bridge that did not go down at the time of the accident. The objections were overruled, the defendant excepted and the [639] piece of timber exhibited by the witness was introduced in evidence. The trial was about ten months after the accident. "With reference to said testimony, the court instructed the jury as follows: “If the jury find from the testimony that some of the piling that stood under the bridge upon the north bank is now somewhat decayed and defective, and was so decayed at the time of the accident, and if you further find that the said piling stood after the accident, and that the caps thereon were not removed or injured by the falling of the' bridge; and if you further find that the decay upon said piling in no way contributed to the injury complained of or occasioned the falling of the bridge, in determining the cause of the accident yon may disregard the apparent condition of the said piling, except in so far as its condition may throw some light upon the condition of the other piling under that portion of the bridge that did fall.” There was no evidence tending to show what was the condition as to soundness or decay at the time of the accident of the particular pile from which the piece introduced in evidence was taken as distinguished from any of the other piling. Nor was there any evidence tending to show that said pile was in the same condition as to soundness or decay when the piece was sawed otf as it was at the time of the accident. We apprehend that by no possibility could any evidence of the latter character have been introduced, for it is and must be self-evident that an exposure of nearly a year must have changed the character of the piling remaining near the bridge. Especially is this true when reference is had to the fact disclosed by the evidence that timber may be apparently sound on the outside and decayed and even rotten within. It must be true that whatever decay there may have existed would be increased by the exposure to the weather for the time above stated, and the additional exposure may have made the inward decay apparent on the outside of the timber. It is also true, we think, that timber perfectly sound, when tested by the rule of ordinary care and observation, might show symptoms of decay from an exposure of ten months to the weather. In the nature of things the piling could not have been in the same [640] condition when the piece was sawed off as it was at the time of the accident. If partially decayed then, such decay would be increased; or if not apparently decayed then, it might be so at the time the piece was taken off. The introduction of this piece of timber was naturally calculated to give the jury a false impression and to hold the defendant liable for the decay which without doubt took place during a period of ten months. ' It must be remembered that the piece of timber exhibited to the jury was taken from, a pile that did not go down with the bridge, and the jury are told in the foregoing instruction that they might consider the same “in so far as its condition may throw some light upon the condition of the other pilings under that portion of the bridge that did fall.” ITow it was possible for the jury to derive any aid from the evidence referred to we are at a loss to conceive. For instance, the piece of timber introduced in evidence no doubt was more or less decayed; indeed, it may have been rotten; the jury may have, therefore, inferred or guessed that the other piling that went down with the bridge was unsound, decayed or rotten to the same extent. This, at best, would have been a mere guess. It could not have been based on any theory that had even an approach to soundness. It was natural that the jury should conclude that as the jiiece exhibited was decayed and rotten, and yet had stood the strain at the time the bridge went down, that the piling which failed to stand the strain was and must have been more decayed and rotten. Upon the improper construction, or because of the decay in and rotten condition of the piling and timbers, the plaintiff’s right to recover largely rested. If it is once admitted that the bridge was properly constructed and the timbers and pilings were sound, and that the bridge fell because the supports of the piling were washed out by reason of the unprecedented fall of rain, the plaintiff’s chance of a recovery was very considerably lessened. It may be said that the jury might at least consider this evidence, and by considering the exposure of the piling, and applying thereto their knowledge of timber and the changes that must necessarily result therefrom, arrive at a reasonable [641] and correct conclusion. It is barely possible that experts, if there be any such, may do so, but we seriously doubt it. That the ordinary juror could not, we feel satisfied. We can readily conceive that the condition or state of the weather, whether there were frequent showers of rain followed by hot, sultry and humid weather, would have much to do with the decay of .timber exposed thereto. So, too, we are ready to believe, would the place, especially with reference to its dampness, have much to do in effecting more rapid changes in the state or condition of the timber when exposed than in a more dry place and atmosphere. For the reasons stated, and many more that might be given, we feel constrained to hold that in admitting the evidence and giving the instruction above mentioned the court erred, and that the case must be Reversed.