The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-05-23

| been made because the accident fur
nished an opportunity which did not
exist before TO make the changes, or
for reasons which arose after the &C.
cident, and which were not even
suggested by it, or for reasons which
were disclosed by the accident but
which could not by reasonable dill
gence have been ascertained before
| it, or because of q laudable desire to
take extreme precautions afterwards,
although all the care which the law
required may have been taken at the
time of and prior TO the accident. In
this particular case, for instance, it
may not have been negligence to
have continued the use of wooden
warehouse built some years ago
under circumstances which made it
proper to erect such building. A
person is not obliged to pull down
an expensive building and erect an
other whenever he can erect better
one. And yet if the old one is des-
troyed, due care may require the
erection of new building of very
different kind on account of the
changed circumstances. Negligence
is failure to exercise due care under
the circumstances. What amounts
to negligence under one set of cir
cumstances cannot be proved by
showing what amounts to due care
under another set of circumstances,
much less by showing what IS done
under the second set of circumstances,
for what is then done may be more
than due care calls for. The defend
ant may have been entirely free from
negligence both at the time of the
accident and at the time of the
subsequent changes, and yet very
much greater precautions may have
been necessary, or may have been
taken even if not necessary, in the
latter case than in the former, be-
cause of the different circumstances.
1t Is not enough to say that the de-
PENDANT may show in rebuttal that
the circumstances remain the same,
for the very fact that an accident has
occurred is a change, perhaps very
important change, in the circum-
stances. And even if it could be
shown that the circumstances re-
manned unaltered, yet no light would
have been thrown on the issue, for it
would still remain to be shown what
amounted to due care and no more
at the time the changes were made.
To allow evidence of this kind would
be in violation of the rule which for
bids the introduction of issues on
collateral facts which furnish no
legal presumption of the principal
fact, thereby tending to confuse the
jury, distract their attention from
the main issue, and prejudice them
against the defendant.
The Kansas and Pennsylvania
courts hold such evidence admissible
when the subsequent changes are
made soon after the accident and are
such as show that they were sug
gested by the accident and were
made to remedy the defects which
caused it, but these courts also con-
slider the evidence as almost worth
less and give no satisfactory reasons
for its admission at all; indeed, in
the cases in which such evidence has
been held admissible, the question
was but little considered, the point
not having been an important one in
those cases. The Supreme Court of
Minnesota in several Of its earlier
decisions also held such evidence
admissible under such circumstances,
but in a later case, it said, over
ruling its former decisions, that
ION mature reflection, we have con-
cluded 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" Horse rs. HIM. !
& 50 L. Ry. Co. 80 Mimi. 1858 In
Columbia & P. s. r. Co. us HaEtlOrne,
IA U. S. POP, the Supreme Court |
of the United States, by Mr.. jus
tiee Gray, citing cases decided by the
Supreme Courts of nine of the States
said i: :" 1t is now well 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 incom-
petent, 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 has been negligent before
the accident happened. and is calcu-
lated to distract the minds of the
jury from the real issue, and to create
a prejudice against the defendant"
The instruction also was properly
refused. 1t raises the question
whether an acceptance Of a bill of
lading by a shipper is evidence Of
his assent to its terms respecting the
exemption of the carrier from liza
bility for losses not due to his negli-
gence. Or, must an express assent
be shown =? There are two classes of
cases which should be distinguished.
One class holds that common car
rier cannot exempt himself from liza
bility by a general notice, even
thouOh the notice is brOuOht 10 tha