
144 U.S. 202 (1892)
COLUMBIA AND PUGET SOUND RAILROAD COMPANY
v.
HAWTHORNE.
240.
Supreme Court of United States.
Argued March 24, 1892.
Decided April 4, 1892.
ERROR TO THE SUPREME COURT OF THE TERRITORY OF WASHINGTON.
*204 Mr. Artemas H. Holmes for plaintiff in error.
Mr. John B. Allen for defendant in error.
*205 MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.
*206 The question of the sufficiency of the evidence for the plaintiff to support his action cannot be considered by this court. It has repeatedly been decided that a request for a ruling that upon the evidence introduced the plaintiff is not entitled to recover cannot be made by the defendant, as a matter of right, unless at the close of the whole evidence; and that if the defendant, at the close of the plaintiff's evidence, and without resting his own case, requests and is refused such a ruling, the refusal cannot be assigned for error. Grand Trunk Railway v. Cummings, 106 U.S. 700; Accident Ins. Co. v. Crandal, 120 U.S. 527; Northern Pacific Railroad v. Mares, 123 U.S. 710; Robertson v. Perkins, 129 U.S. 233.
The only other exception argued is to the admission of evidence of changes in the machinery after the accident.
It was argued for the plaintiff that this exception was not open to the defendant, because it had been waived by his counsel saying, after the first ruling of the court on the subject, "I thoroughly concur with the court as to the rule." Assuming these words to be accurately reported, it is not wholly clear whether they refer to the rule as to evidence of subsequent changes, or to the rule, mentioned just before, as to the degree of care required of the defendant. That they were not understood, either by the counsel or by the court, as waiving the objection to evidence of subsequent changes, is shown by the plaintiff's counsel thereupon saying, "We propose to show changes," and by the court ruling them to be admissible, and allowing an exception to this ruling, and immediately afterwards allowing two other exceptions to evidence on the same subject. And the question of the admissibility of this testimony was considered and decided by the Supreme Court of the Territory. 3 Wash. Ter. 353, 364.
This writ of error, therefore, directly presents for the decision of this court the question whether, in an action for injuries caused by a machine alleged to be negligently constructed, a subsequent alteration or repair of the machine by the defendant is competent evidence of negligence in its original construction.
*207 Upon this question there has been some difference of opinion in the courts of the several States. But 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, because 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. Morse v. Minneapolis & St. Louis Railway, 30 Minnesota, 465; Corcoran v. Peekskill, 108 N.Y. 151; Nalley v. Hartford Carpet Co., 51 Connecticut, 524; Ely v. St. Louis &c. Railway, 77 Missouri, 34; Missouri Pacific Railway v. Hennessey, 75 Texas, 155; Terre Haute & Indianapolis Railroad v. Clem, 123 Indiana, 15; Hodges v. Percival, 132 Illinois, 53; Lombar v. East Tawas, 86 Michigan, 14; Shinners v. Proprietors of Locks & Canals, 154 Mass. 168.
As was pointed out by the court in the last case, the decision in Readman v. Conway, 126 Mass. 374, 377, cited by this plaintiff, has no bearing upon this question, but simply held that in an action for injuries from a defect in a platform, brought against the owners of the land, who defended on the ground that the duty of keeping the platform in repair belonged to their tenants and not to themselves, the defendants' acts in making general repairs of the platform after the accident "were in the nature of admissions that it was their duty to keep the platform in repair, and were therefore competent."
The only States, so far as we are informed, in which subsequent changes are held to be evidence of prior negligence, are Pennsylvania and Kansas, the decisions in which are supported by no satisfactory reasons. McKee v. Bidwell, 74 Penn. St. 218, 225, and cases cited; St. Louis & San Francisco Railway v. Weaver, 35 Kansas, 412.
The true rule and the reasons for it were well expressed in Morse v. Minneapolis & St. Louis Railway, above cited, in which Mr. Justice Mitchell, delivering the unanimous opinion of the Supreme Court of Minnesota, after referring to, earlier *208 opinions of the same court the other way, said: "But on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances, and that the rule heretofore adopted by this court is on principle wrong; not for the reason given by some courts, that the acts of the employes in making such repairs are not admissible against their principals, but upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. 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. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence." 30 Minnesota, 465, 468.
The same rule appears to be well settled in England. In a case in which it was affirmed by the Court of Exchequer, Baron Bramwell said: "People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before." Hart v. Lancashire & Yorkshire Railway, 21 Law Times (N.S.) 261, 263.
As the incompetent evidence admitted against the defendant's exception bore upon one of the principal issues on trial, and tended to prejudice the jury against the defendant, and it cannot be known how much the jury were influenced by it, its admission requires that the
Judgment be reversed, and the case remanded to the Supreme Court of the State of Washington, with directions to set aside the verdict and to order a new trial.
