Stevens v. Boston Elevated Railway Co.
69 N.E. 338
Mass.
1904
Check Treatment
Knowlton, C. J.

Thе only exception now relied on by the defendant is to the admission in evidence of the defendant’s rule in regard to sounding the gong, in'connection with testimony that the defendant’s motorman disobeyed the rulе and that this disobedience was one of the causes of the accident. The decisions in different jurisdictions are not entirely harmonious upon the question now raised, but we are of opinion that the weight of authority and of reason tends to support the ruling of the judge in the present case.

It has bеen settled by various adjudications in this Commonwealth that the adoption of additional precаutions for safety by a defendant, ‍‌​‌​​‌‌‌‌‌​‌​​​​​​​‌‌‌‌‌‌​​​​​​​​​‌​‌‌​‌​​​​​​‌​‍after an accident, cannot be proved, as tending to show liаbility for the method used at the time of the accident. Menard v. Boston & Maine Railroad, 150 Mass. 386. Shinners v. Proprietors of Locks & Canals, 154 Mass. 168. Downey v. Sawyer, 157 Mass. 418. Hewitt v. Taunton Street Railway, 167 Mass. 483, 485, 486. Dacey v. New York, New Haven, & Hartford Railroad, 168 Mass. 479, 481. This is the general rule in other jurisdictions. Morse v. Minneapolis & St. Louis Railway, 30 Minn. 465. Columbia & Puget Sound Railroad v. Hawthorne, 144 U. S. 202, 207, 208, and cases there cited.

On the other hand, a violation of rules previоusly adopted by a defendant in reference to the safety of third persons has generally beеn admitted in evidence as tending to show negligence of the defendant’s disobedient servant for which the defendant is liable. The admissibility of such evidence has often been assumed by this court without discussion. Mayo v. Boston & Maine Railroad, 104 Mass. 137, 140. Connolly v. New York & New England Railroad, 158 Mass. 8, 10, 11. Floytrup v. Boston & Maine Railroad, 163 Mass. 152. Sweetland v. Lynn & Boston Railroad, 177 Mass. 574, 578, 579. See also in other courts, Chicago, Milwaukee & St. Paul Railway v. Lowell, 151 U. S. 209, 217; Warner v. Baltimore & Ohio Railroad, 168 U. S. 339, 346. In Floytrup v. Boston & Maine Railroad, ubi supra, Mr. Justicе Barber said in the opinion, “ The evidence of the usage of the road, that one train ‍‌​‌​​‌‌‌‌‌​‌​​​​​​​‌‌‌‌‌‌​​​​​​​​​‌​‌‌​‌​​​​​​‌​‍should not enter a station while another train was engaged in delivering passengers there, *479was competent upon the question whether the defendant’s servants managed the train in a proper manner.” . Similar statements of the law may be found in numerous cases. Dublin, Wickford & Wexford Railway v. Slattery, 3 App. Cas. 1155, 1163. Delaware, Lackawanna & Western Railroad v. Ashley, 67 Fed. Rep. 209, 212. Cincinnati Street Railway v. Altemeier, 60 Ohio St. 10. Lake Shore & Michigan Southern Railway v. Ward, 135 Ill. 511, 518. Georgia Railroad v. Williams, 74 Ga. 723, 733. Atlanta Consolidated Street Railway v. Bates, 103 Ga. 333. The only decision to the contrary of ‍‌​‌​​‌‌‌‌‌​‌​​​​​​​‌‌‌‌‌‌​​​​​​​​​‌​‌‌​‌​​​​​​‌​‍which we are aware is in the case of Fonda v. St. Paul City Railway, 71 Minn. 438, 449.

It is contended by the defendant that there is no sound principle under which such evidence can be admitted. The evidence is somewhat analogous to proof of the violation of an ordinance or statute by the defendant or his servant, which is always received as evidence, although not conclusive, of the defendant’s negligence. Wright v. Malden & Melrose Railroad, 4 Allen, 283. Lane v. Atlantic Works, 111 Mass. 136. Hall v. Ripley, 119 Mass. 135. Hanlon v. South Boston Horse Railroad, 129 Mass. 310. Such an ordinanсe or statute, enacted by a body representing ‍‌​‌​​‌‌‌‌‌​‌​​​​​​​‌‌‌‌‌‌​​​​​​​​​‌​‌‌​‌​​​​​​‌​‍the interests of the public, imposes prima facie upon еverybody a duty of obedience. Disobedience is, therefore, a breach of duty, unless some еxcuse for it can be shown which creates a different duty, that, as between man and man, overrides thе duty imposed by the statute or ordinance. Such disobedience in a matter affecting the plaintiff is аlways competent upon the question whether the defendant was negligent. So a rule made by a сorporation for the guidance of its servants in matters affecting the safety of others is made in the performance of a duty, by a party that is called upon to consider methods, and determine how its business shall be conducted. Such a rule, made known to its servants, creates a duty of obedience as between the master and the servant, and disobedience of it by the servant is negligence as between the two. If such disobedience injuriously affects a third person, it is not to be assumed in favor of the master that the negligence was immaterial to the injured person, and that his rights were not affected by it. Rather ought it to be held an implication that there was a breach of duty towards him, as well as towards the master who prescribed the *480conduct that he thought necessary or desirable for protection in such cases. Against the proprietor of a business, the methods ‍‌​‌​​‌‌‌‌‌​‌​​​​​​​‌‌‌‌‌‌​​​​​​​​​‌​‌‌​‌​​​​​​‌​‍which he adopts for the protection of others are some evidence of what he thinks necessary or proрer to insure their safety. '

A distinction may well be made between precautions taken voluntarily before an accident, and precautions which are suggested and adopted after an aсcident. This distinction is pointed out in Columbia & Puget Sound Railroad v. Hawthorne, 144 U. S. 202, 207. Mr. Justice Gray, referring to changes made by a defendant after an аccident, says in the opinion, “ It is now settled, upon much consideration, by the decisions of the highest courts of most of the States in which the question has arisen, that the evidence is incompetent, beсause the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant.” In Morse v. Minneapolis & St. Louis Railway, 30 Minn. 465, it is said, referring to the same subject, that “ A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards.” See also Illinois Central Railroad v. Swisher, 61 Ill. App. 611. In Menard v. Boston & Maine Railroad, 150 Mass. 386, аnd in some of the earlier cases there is language which goes further than the decision, and which might imply that such evidence as was received in this case is incompetent, but the case is authority only for that which was decided.

^Exceptions overruled.