Louisville & Nashville Ry. Co. v. Morton

[400] Opinion by Chief Justice Hobson Reversing. Charles Morton was a section hand in the employment of the Louisville & Nashville R. R. Co. A freight train dropped some logs, and the section foreman took his crew to pick them up. He loaded the-logs upon some trucks and took them to the nearest, station, and there he undertook to load them on a freight car by means of skids reaching from the-ground up to the car. It was a cold day. There-was ice on the logs and ice on the skids. When théy began rolling the logs some one of the hands said that they ought to have a rope to hold them. The-boss said: “Roll the log up.” It was a large white-oak log, weighing 3,000 or 4,000 pounds. One man stood at each end to chock the log. One of the men-had an ax and the other a brick. When the log got. nearly to the top, the brick slipped on the ice. The log came back. The men at that end of the log ran: out of the way, but Morton, who was working at the other end, had not time to get out of the way of the log, and was caught and injured. He filed- this-suit to recover for his injury, and, a verdict and judgment having been rendered in his favor for the-sum of $500, the railroad company appeals. The court allowed the plaintiff on the trial to prove by himself and a number of other witnesses that after he was hurt the foreman went and got a rope, and by tying one end of it to the car and passing it around the log two men at the rope could hold the log without any trouble, and so the logs were in this way subsequently loaded without danger or difficulty. The-court, in admitting the evidence, told the jury that it was to be considered by them only in determining whether the manner of, loading the logs first employed was a reasonably safe means, and that it could [401] not be considered in any way as bearing upon tbe question as to whether the defendant knew that the first means employed was not reasonably safe. The defendant excepted both to the evidence and to the admonition of the court. The court in so ruling followed Labatt on Master and Servant, secs. 133, 824. We can not concur in this vipw of the law. In Standard Oil Co. v. Tierney, 92 Ky., 367, 13. Ky. Law Rep., 626, 17 S. W., 1025, 14 L. R. A., 677, 36 Am. St. Rep., 595, it was held that subsequent precautions or subsequent repairs after an injury has occurred are not competent evidence against the defendant, on the ground that such evidence raises distinct and irrelevant issues for the consideration of the jury, and puts an unfair interpretation upon human conduct, virtually holding out an inducement for continued neglect. This case was followed in L. & N. R. R. Co. v. Bowen, 39 S. W., 31, 18 Ky. Law Rep., 1099. In Republic Iron & Steel Works v. Gregg, 71 S. W., 900, 24 Ky. Law Rep., 1627, the defendant offered to-show that the machinery was operated after the accident without injury in the same condition as at the-time of the accident. The plaintiff offered to show-that subsequent to the injury the machinery was repaired. The court held that the evidence of neither side was competent. These cases are in accord with the great weight of authority. The case of Champion Ice Manufacturing Co. v. Carter, 51 S. W., 16, 21 Ky. Law Rep., 211, does not lay down a different rule.. That case turned simply upon the evidence that had. been introduced. . A person can not make evidence for himself, and’ therefore the defendant can not, by allowing a defect to continue, make this evidence in his behalf. The issue the jury are to determine is whether ordinary [402] care was used before the injury to the plaintiff. What care was used after the injury is immaterial. Many persons, after an accident has occurred, will use extraordinary precaution to prevent a recurrence of it. On another trial either the .plaintiff or the defendant may be allowed to prove, 'by persons having experience and skill in the business of loading logs, what is the usual and proper way of loading such logs and what are the dangers' attending the work; but witnesses who have not had such experience in the business as to be considered experts should not be allowed to give their opinions on the subject. We see no other error in the record. The instructions of the court properly presented the law of the case. Judgment reversed, and cause remanded for a new trial.