Fitter v. Iowa Telephone Co.

Bishop, J. 1. Master and negli^nce: evidence. The grounds of negligence charged involve the manner or method adopted to accomplish the work of unloading the pole. And, among other things, it is said thaf an insufficient number of men were provided to do the work in the manner in which wag a^emp|;e¿ done. One Bean, a witness for plaintiff, after having detailed the circumstances of the accident, was thus interrogated: “ Q. For the purpose of showing there wasn’t a sufficient number of men to unload the pole with safety to those engaged in unloading it, I will ask you this question: After Fitter was hurt, how did they unload that pole — right immediately afterward ? (Objected to and overruled.) A. The small end of the polo was pried up, and the team was backed up until it was light enough for what men there were there to unload it. The wagon was uncoupled, and two or three men got behind the small end and raised up and then pulled the wagon out.” Another witness, one Snyder, also detailed the circumstances of the accident, and was then asked: “ Q. Now, immediately after the pole fell down, how did they unload it? (Objected to and overruled.) • A. They uncoupled the wagon; lifted up the front end, and pulled the front wheels out; and then went to the back end and lifted it up and run the back end out.” Snyder also testifies that Haney, the [613] superintendent of the work, who was not on the ground when the work of unloading began, but came up just as the accident happened, took charge following the accident, and thereafter the work was done under his personal direction. We think the admission of the testimony of the witnesses named as to the method of doing the work adopted subsequent to the accident was error. It was wholly incompetent for the purpose of proving that the method first adopted, and in connection with which the accident occurred, was negligent. And there was no other phase of the case to which it could have been addressed. It has so often been held that evidence of repairs subsequently made, or of a change in the method of doing work subsequently adopted, cannot be introduced to support a charge of negligence predicated upon the conditions existing at the time of the accident, that we need, do no more than cite some of. the cases. Hudson v. Railway, 59 Iowa, 584; Kuhns v. Railway, 76 Iowa, 74; Beard v. Guild, 107 Iowa, 479; Frohs v. Dubuque, 109 Iowa, 220; Motey v. Pickle, etc., Co., 74 Fed. 159, (20 C. C. A. 366). 2. Negligence: res gesta. Counsel for appellant seem to think that the evidence was admissible as part of the res gestee. But that cannot be: Nothing can be said to be included in the res gestee ex-cept those matters which properly speaking enter into the accident — which serve to discover its immediate cause or explain the particular manner of its happening. Here what was done subsequently had no relation to the accident as it happened; the evidence relative thereto. disclosed no more than that,. following the accident, an independent and wholly voluntary course of proceeding was adopted. And the interrogatory as propounded to Bean was not saved by the statement of purpose included. In the very nature of things, the subsequent method adopted under direction of Haney could not have the effect to throw light upon the question of the sufficiency in point of number of the men employed in the first method. [614] That the testimony as thus introduced was prejudicial must be manifest. It may readily have been accepted by the jury as a demonstration that, if Riddle had adopted the easy method employed by Haney, the accident could not have happened; accordingly that there was negligence. Many other errors occurring on the trial and entering into the judgment are contended for. As all such are based upon the state of the evidence instantly appearing, and as the record upon a retrial may not be the same in all respects, we need not extend this opinion by entering upon a discussion thereof. For the error pointed out the judgment must be reversed, and the cause remanded for a new trial. Reversed.