109 Tenn. 407 | Tenn. | 1902
delivered the opinion of the Court.
Plaintiff below recovered a verdict and judgment against the company for the sum of $10,000 as damages for personal injuries. The case has been three times tried. On the first trial the jury disagreed, and a mistrial was entered. The second trial resulted in a verdict against the company for $10,000, which was set aside by the court for misconduct of the jury in examining the car on which the accident occurred. On the third and last trial the jury again found in favor of plaintiff, and assessed the damages at $10,000. The company appealed, and has assigned errors.
The first assignment we shall notice is, that the trial judge erred in admitting evidence, introduced by plaintiff, as to the condition of the brake and deadwood on the car in question over one year after the injury to plaintiff, and that it was error not to exclude said testimony, on motion of the company, after plaintiff’s own testimony had developed the fact that between the date of plaintiff’s injury and the date of the discovery of the alleged defect, said car had been in a wreck, and its appliances afterwards repaired.
It is conceded that on the first trial of the case the ground of recovery alleged was a defect in the
On the second trial, the long-chain theory as the cause of the accident was abandoned, and an amended declaration filed, alleging that the injury was occasioned by defects in the deadwood and eyebolt of the brake rod. Plaintiff claimed that he did not know of these defects until after the first trial. The new theory was that the eyebolt in the brake rod was too near the deadwood, and that in the application of the brake rod, the eyebolt would pass under the deadwood, rubbing it, and, when released from the deadwood, would permit the brake to lurch suddenly forward.
Plaintiff was not examined on the last trial to state hoAv the accident was brought about, but his father, who was also master mechanic of defendant company, testified that the eyebolt should be one inch pnder the deadwood, and, if it should strike it, a friction would be caused, and the brake would stop. This witness was asked when he first noticed this car, with reference to the deadwood. He answered, “About the time of the first trial.” It is admitted the first trial occurred in December, 1900, and the accident happened in November, 1899. It thus ap
This testimony, standing alone, was clearly incompetent. It was too remote from the time of the accident to illustrate the condition of the deadwood and brake appliances at that time, or to afford any fair inference of its condition then. It was not/ accompanied by other evidence showing that these appliances remained in the same condition from the date of the injury to date of examination made by the witnesses. In 21 Amer. & Eng. Encl. Law (2d Ed.), 517, the rule is thus stated: “While in negligence cases the condition of the appliances, structure or premises at the very time and
In the case at bar the intervening time was thirteen months, and there was evidence to show that during that time this car had been in a wreck, and the brake rod and appliances taken off and repaired. It is possible, too, that the wear on the deadwood may have occurred during these intervening thirteen months since the accident.
It is conceded by counsel for defendant in error that proof of the condition of the brake rod, eye-bolt, and deadwood a year or more after the accident would be inadmissible if nothing else appeared. But his insistence is that this testimony was made competent by the additional statement of the witness Lindamood that the brake staff had been there ever since the car was manufactured, and that the deadwood had. been there, from its general appearance,
We are of opinion that the testimony offered was too remote from the time of the injury co be admissible — whether it was offered to show defective construction or defects that occurred afterwards— there being no connecting link between the condition shown thirteen months after the accident and the. condition at time of injury. Sievers v. Peters, 151 Ind., 642 (50 N. E., 877; 52 N. E., 399).
The judgment of the circuit court is therefore reversed, and the cause remanded.