203 Pa. 638 | Pa. | 1902
Opinion by
The defendant was charged with negligence in not having' properly secured in the position in which it was placed an iron plate that covered a gutter at a street crossing. After the accident that resulted in injury to the plaintiff, the plate was fastened to the granite heading of the crossing by means of iron pins. The court was asked to charge that “ no prior negligence on the part of the defendant can be presumed from the fact that the plate was fastened after the accident.” The refusal of this point raises the question whether evidence of precaution taken after an accident is admissible as tending in itself to prove prior negligence. The ruling of the court on this question was warranted by . our decisions as they then stood. Since the trial we have decided in Baran v. Reading Iron Co., 202 Pa. 274, that such testimony is not admissible. The sixth specification of error is therefore sustained. The eighth, intended to raise the same question, is defective, as the testimony objected to is not quoted.
The remaining specifications need not be considered in detail. The case could not properly be withdrawn from the jury. The objection that the jury was in effect instructed that the officers of the city were negligent in not fastening the plate with pins when it was first put down, finds some support in the answers to points and in the general charge. The negligence in this respect was not so manifest that it could have been declared as matter of law. The instructions complained of are not free from criticism, but as the question of negligence was submitted to the jury, they are not grounds for reversal.
The judgment is reversed with a venire facias de novo.
