called attention in 81 Cent. L. J. 91, to a decision by Alabama Supreme Court to the effect that an agent selling newspapers containing liquor advertisements came under the principle in Delamater v. South Dakota, 205 U. S. 93, and that soliciting orders in prohibition or local option territory could be punished by the state. Now appears a ruling by West Virginia Supreme Court, that a non-resident dealer in intoxicating liquors is amenable to a state statute for sending circulars containing price lists of liquor, through the mail to a local agent for distribution, under a statute denouncing such acts as penal. State v. Davis, 87 S. E. 262. ADMISSIBILITY OF EVIDENCE OF To Prove Negligence.—It is a well-established rule, often reiterated, and needing no citation of authority here to support it, that evidence of the subsequent repair or alteration of an appliance or place causing injury is not admissible for the purpose of proving negligence on the part of the defendant in an action to recover on account of such injury. This is true for the very simple reason that such evidence does not tend to prove negligence. A fact is admissible as the basis of an inference only when the desired inference is a probable or natural ex This ruling relies also on the Delamater case and the Webb-Kenyon Act and it is said: "Did the use of the mails by defendant in the manner shown constitute an offense under our statute? Federal protection to the liquor traffic having been withdrawn by the Wilson Act and the Webb-Kenyon Act, we think Our statute covers the case presented by the plead-planation of the fact, and a more probable ings and the proof in this case. Use of the mails is not prohibited by the statute; but the business of soliciting orders by means of circulars, etc., is prohibited. It seems but a short step from the act of being personally present and soliciting orders or distributing advertisements to the doing of the same thing by the agency of the United States mails. We do not think a good ground of distinction can be suggested. Of course, the object to be accomplished could not be attained except by delivery of the matter to prospective customers, but this end could be as well reached by use of the mails as by the physical presence of the absent dealer in the state." This reasoning may be technically unobjectionable and yet may fail because it is necessary to limit thereby the ordinary effect of a superior law to that of the state. Only Congress may give effect to state purpose in this regard. It, therefore, becomes a question whether the engrafting, so to speak, of this exception on a federal law comes within the rule of incidental effect of interstate commerce by state regulation not excluded by direct action of Congress. We have not understood this principle as in anywise tending to restrict the ordinary reach of that about which Congress specifically has prescribed. It has given to citizens the right to use the mails for whatsoever purpose they see fit, outside of certain businesses, for example what may come under a fraud order. If a state attaches a penalty to solicitation of liquor sales, does its statute not operate, virtually, like the fraud order legislation to which reference is made? and natural one than the other explanations, if any. Ordinarily one is required to exercise only a reasonable degree of care to maintain his premises and appliances in a reasonably safe condition, and the mere happening of an accident due to a defective condition thereof is no indication that he has not performed his duty. The place or appliance may well have become defective without any laxity on the part of the defendant in the performance of the required reasonable degree of care. Again, it may as well be as not, that after the accident the defendant desired to render a repetition of such an occurrence practically impossible, and therefore, in making repairs or alterations, he was exercising a higher degree of care than that required by the law. "The fact that the happening of an accident may convey information producing a conviction or belief that had extraordinary precaution been taken the injury would have been prevented, does not legitimately tend to prove that ordinary care and vigilance were not exercised. All may be done that ordinary care required, and yet a person satisfied by experience that a higher degree of care may insure absolute safety, may employ extraordinary means to prevent acci It appears from the above quotation that the court gave as its reason for excluding such evidence that it would be contrary to public policy to admit it. Other courts have advanced the same reason. This is wasted effort; because it is useless to search for reasons, in themselves somewhat doubtful, when, regardless of such reasons, there is an insurmountable barrier in the way of admitting the evidence-the fact that it does not prove negligence. If such evidence were excluded on the sole ground of public policy, then the benefit accruing to the public by reason of its exclusion might be weighed in balance against the benefit to the individual by its admission, and the evidence admitted or excluded accordingly as the scales overbalance one way or the other in the mind of the court. The Supreme Court of Kansas seems to have considered the question from the standpoint of public policy alone, and it decided in favor of admitting the evidence. This court so holds on the ground that the consequent reluctance of parties thus to guard against repeated injuries for fear they will thereby furnish evidence tending to show their prior negligence is not deemed of equal importance with protection against injury to life and limb.2 The Kansas court would undoubtedly be welcome to this view if the ground of public policy were the only one for excluding such evidence. (1) Terre Haute & I, R. Co. v. Clem, 123 Ind. 15, 23 N. E. 965, 7 L. R. A. 588, 18 Am. St. Rep. 303. (2) Howard v. Osage City, 89 Kan. 205, 132 Pac. 187. However, the fact that such evidence is inadmissible to prove negligence in such a case, does not indicate that it is inadmissible for all purposes. If it legitimately tends to prove any fact in controversy it is admissible for that purpose. If evidence is admissible for any purpose it cannot be exso limit it by instructions when requested cluded by the court. The court may limit the effect of such evidence to the fact which it is competent to prove, and is bound to to do so by the party complaining. To Prove Feasibility or Possibility of Guarding Machinery.—Where the employer insists that it is not feasible to guard dangerous machinery at all, as provided by a statute requiring machinery so placed as to be dangerous to employes to be guarded, evidence is admissible to show that a guard was provided after the injury which resulted from the exposed condition of the machinery.3 Under a statute requiring dangerous machinery to be guarded "when possible," evidence that subsequent to the injury the machine was so guarded, is admissible for the purpose of proving that it was possible. to guard it; the action being by an employe to recover for injuries alleged to have been due to the failure of his employer, the defendant, to place guards on a machine at. which he was working when injured.* In respect to this question, the court, in the case last cited, said: "It must be borne in mind that in this case the statute makes the possibility to guard an issue in the case. And the petition alleged that it was possible to guard it, and the answer denied it. This issue of fact, namely, whether it was possible to guard the machine, is separate and independent of every other issue in the Consequently the evidence was admissible as tending to prove that issue. Did it not, therefore, come within the rule that, case. (3) West v. Bayfield Mill Co., 144 Wis. 106, 128 N. W. 992; Lind v. Uniform Stave & Package Co., 140 Wis. 183, 120 N. W. 839. (4) Phillips v. Hamilton Brown Shoe Co., 178 Mo. App. 196, 165 S. W. 1183. where evidence is admissible to prove one fact, it cannot be excluded merely because it is not admissible to prove some other fact?" The St. Louis Court of Appeals has held such evidence to be inadmissible. It says: "That such testimony was incompetent there can be no doubt; and we need not repeat the sound reason therefor, which has been so frequently stated." There are two things evident from the language of the court in this case: (1) The question of the admissibility of the testimony was not properly placed before the court; (2) the court had reference to the "sound reason" for excluding such testimony when its purpose is to prove negligence. Clearly the court was in error, for there is no better evidence that it is possible to guard a machine than the fact that it is or has been guarded. There is not even any reason of public policy for excluding this evidence which tends to prove the violation of a positive duty. Where, in an action to recover for injuries caused by an unguarded conveyor in a gypsum mill, the complaint alleged that the conveyor could and should have been covered and protected and made safe without any interference with the efficiency. of the machine, and this allegation was generally and specifically denied by the answer, and it appeared that the jury during the trial visited the premises where the injury occurred, and at that time the conveyor was covered, and not in the condition it was at the time of the accident, it was held that testimony that the conveyor was covered since the accident was properly admitted. This case arose under a statute providing that all owners engaged in the operation of any machinery "shall see that all dangerous machinery shall be securely covered and protected." 116 (5) Miniea v. St. Louis Cooperage Co., 175 Mo. App. 91, 157 S. W. 1006. (6) Cameron v. Pacific L. & G. Co., Ore., 1914, 144 Pac. 446. Evidence of the guarding of a vat subsequent to the plaintiff being injured by falling into the same was admissible to show the reasonable practicability of guarding the vat, as required by statute." So, under a statute requiring all machinery to be properly guarded, such evidence is admissible to show that the machine in question could be guarded. But under a statute requiring certain machinery to be guarded if such can be done without impairing the efficiency of the machine, evidence that a machine was guarded after the happening of the injury for which recovery was sought, and which was inflicted while the machine was unguarded, has been held not to be admissible, because the guards may have been put on regardless of whether the efficiency of the machine was impaired." If it were shown that such future guarding of the machine did not impair its efficiency, the reason for the exclusion of such evidence would be removed, and it would seem to be admissible. No reason appears for refusing a party the opportunity to prove that the guard did not render the machine less efficient. This case may be said to be doubtful law at best. A very similar case to those given above was that of Cincinnati, H. & D. R. Co. v. Van Horne,10 in which it appeared that a switchman in the employ of the defendant had been injured by his foot catching in a guard rail on defendant's track in such a way that he was unable to extricate himself before he was struck by a locomotive. A statute required all railroad companies to block the guard rails on their tracks so as to prevent their employes' feet from being caught therein, the work to be done to the satisfaction of the railroad commissioner. The defendant introduced testimony to (7) Carstens Packing Co. V. Swinney, 186 Fed. 50, 108 C. C. A. 152. (8) La Porte Carriage Co. v. Sullender, Ind. App., 1914, 71 S. E. 922. (9) Cincinnati, H. & D. R. Co. v. Armuth, Ind., 1913, 103 N. E. 738. (10) 69 Fed. 139, 16 C. C. A. 182. show that a block which would have prevented the injury would have been inconsistent with the safe running of trains, and contended that the statute did not require such an impossible precaution. It was held proper for the plaintiff to show that there was a block, sufficient to have prevented this accident, put into the guard rail after the accident, which did not interfere with the running of trains. To Refute Contention of Defendant.-If the defendant gives testimony that at some time after the accident the place or appliance which was alleged to have caused plaintiff's injury was in good condition, the plaintiff may show that shortly after the accident it was repaired.11 This is for the purpose of explaining or refuting defendant's testimony. It does not tend to show negligence, and cannot be admitted for that purpose. To Show Ownership of or Jurisdiction Over Place or Appliance.-In the trial of an action against a municipal corporation to recover damages for personal injuries, it is permissible to prove that after the accident the place the defective condition of hich it was claimed caused the injuries in stion was repaired by the defendant. This for the purpose of showing that the defend-place in question after the accident.15 ant recognized the place as one over which it had authority and control, and which it was its duty to keep in repair, subject, of course, to the law relating to notice, etc.11 Where, in an action to recover against a city for injuries caused by a defective sidewalk, the defendant introduced testimony to show that the walk was in good repair before, at, and after the accident, the plaintiff was properly allowed to show in rebuttal that repairs were made near the 11 Thus, where the question was whether the place where a child was drowned by falling into a sinkhole was or was not a street, it was proper to show that some three months after the accident the defendant city repaired the place in question, as tending to prove that the city recognized the place as a public street.12 So, where an employe was hurt by a dump car, evidence of repairs made on the car by defendant after the occurrence, was held to be admissible to show the conditions existent at the time of the accident, and for the purpose of showing whose duty it was to keep the truck in repair.13 (11) Lafayette V. Weaver, 92 Ind. 477; Hemphill v. Morehouse, 162 Mo. App. 566, 142 S. W. 817; Brennan v. St. Louis, 92 Mo. 482, 2 S. W. 481; Rusher v. Aurora, 71 Mo. App. 418; Bowles v. Kansas City, 51 Mo. App. 416; Sprague v. Rochester, 52 App. Div. 53, 64 N. Y. Supp. 846; Ashtabula v. Bartram, 3 Ohio Cir. Ct. Rep. 640, 2 Ohio Cir. Dec. 372; Brown v. Towanda, 24 Pa. Super. Ct. 378. (12) Benton v. St. Louis, 217 Mo. 687, 118 S. W. 418. (13) Boggs v. Cullowhee Min. Co., 162 N. C. 393, 78 S. E. 274. In an action to recover for the death of a miner who was knocked from a tub, in which he was being hoisted out of a mine shaft, by exposed timbers, where the defendant's attorney asked a witness if the shaft had not been used continuously after the death of plaintiff's deceased in the same condition it was in at the time of the accident without further accident having occurred, the plaintiff was held entitled to show that after the accident in question the shaft had been repaired by nailing boards. over the exposed timbers.16 Where an injury was alleged to have been caused by a hole in a street, and there was testimony on the part of the defendant town that the hole was filled before the accident, the plaintiff was allowed to show that the hole was not filled until after the accident.17 In an action to recover for the death of a track repairer who was killed when the handcar on which he was riding was over taken and struck by an extra train, the superintendent of the road testified for the defendant that the rules of the company as to the trains and the employes were sufficient, and the best that could be framed. It was held proper to require him on cross examination, to reply to a question regarding a new rule given by him to the track foreman after the accident for the better protection of track repairers, for the purpose only of affecting the value of the expressed opinion of the witness as to the sufficiency of the rules existing at the time of the accident.18 Where, in an action to recover for the death of an employe, due to the fall of a pile of lumber, caused to fall by the giving way of the foundation of the deck on which the lumber was, and in which defendant introduced testimony that new posts were put under the deck before the accident, and that no repairs had been made since, it was competent for the plaintiff to show that repairs in this respect were made after the accident.19 Where the plaintiff was injured by stumbling over a stake driven between the planks of a sidewalk, and the defendant gave testimony showing the stake to be lower than stated by plaintiff, it was held proper for the plaintiff to prove that the stake had been driven down since the accident.20 Various Purposes.-In an action to recover for injuries caused by tripping over a loose board in a sidewalk, where witnesses testified as to the condition of the stringers on which the boards were laid, it was held proper to show that after the accident the walk was taken up and a new one laid in its place, for the purpose of explaining how the witnesses came to be familiar with the condition of the stringers.21 (18) Quinn v. New York, N. H. & H. R. Co., 56 Conn. 44, 12 Atl. 97, 7 Am. St. Rep. 284. (19) Anderson v. Conway Lbr. Co., 99 S. C. 100, 82 S. E. 984. (20) Taylorville v. Stafford, 196 Ill. 288, 63 N. E. 624. (21) Frohs v. Dubuque, 109 Ia. 219, 80 N. W. 341. Where one was injured by a depression in a public street, it was proper for a witness to testify that shortly after the accident he saw a place in the street about where the accident occurred where gravel had been placed, when such evidence was expressly limited to showing the location of the former depression, and to identifying it.22 Where photographs of the place or appliance causing the injury complained of are introduced in evidence, any change in the place or appliance between the time of the accident and the taking of the photographs may be shown.23 along a public street, after nightfall, and The plaintiff was driving his automobile. was injured by the machine coming in contact with the guy ropes and pins of a tent, which was an appurtenant of the "Holy City," the latter constituting a part of a street carnival which occupied a portion of the street. It appears from the opinion of the court that the plaintiff testified that he was "traveling east." had approached "Lee and Stonewall," had gone through the narrow path to the right of the "Ghost Show" without yielding to temptation to enter therein, had passed between the "Snakes" and the "Crazy House," and was trying to pass in front of the "Holy City" when the accident occurred. (As the court stated that the plaintiff was perfectly sober, and that these things he referred to in his testimony had an actual existence, we may proceed with a fair degree of assurance to the point in question.) The trial court permitted the plaintiff to prove that after the accident the pins of the "Holy City" were moved closer to the tent. On appeal, the court, in speaking of the admissibility of this evidence, said: "If the testimony had been offered as an admission against the defendant, or as testimony in the nature of an admission that the (22) Grundy v. Janesville, 84 Wis. 574, 54 N. W. 1085. (23) Achey v. Marion, 126 Ia. 47, 101 N. W. 435. |