¶1This action was brought to recover damages for an injury done to plaintiff in falling from a bridge which was not guarded by a railing.
¶2*38Within the case of Hart v. Hudson River Bridge Company, lately decided by the Court of Appeals, the question of defendant’s negligence and of plaintiffs contributory negligence were, under the evidence, questions of fact to be decided by the court upon the trial. The plaintiff was proved to have been upon the bridge, to have fallen therefrom, presumptively, from the lack of a railing, and to have been injured by such fall. His want of contributory negligence is asserted from the evidence of his blindness in one eye, and that he was unexpectedly met in the night-time on the bridge by a loaded team which he attempted to avoid and stepped off. It is a much stronger case than Hart’s where the court held the evidence should have been submitted to the jury.
¶3But the plaintiff was allowed, under objection and exception, to prove that the defendants, in a day or two after the plaintiff’s injury, put up the railing on the side of this bridge where the accident occurred. Such evidence is in conflict with the decisions of the Court of Appeals and of this court following the same. Dougan v. Champlain Transportation Company (56 N. Y., 1) is almost identical with the case under consideration. Plaintiff’s intestate slipped under a gangway railing from a steamer into the lake and was drowned. Plaintiff was permitted to show that after the accident the defendant caused the open space to be boarded up. This was held to be immaterial and incompetent as evidence of negligence.
¶4So in Baird v. Daly (68 N. Y., 547, 551) a recovery was had for partially swamping a scow, being towed by defendant’s tug at too great a rate of speed. In that connection it was proved by plaintiff that after the disaster the scow was towed at less speed. It was held to be improper, but the impropriety is attributed to the altered circumstances which sufficiently accounted for the slower speed. Again, the admission of evidence of a change in the character of a switch after an accident is error. (Salters v. D. and H. Canal Co., 3 Hun, 338, 341.) To the same effect is Payne v. Troy and Boston Railroad (9 Hun, 526).
¶5The evidence objected to in this case was received “ and was considered upon the question, of defendant’s negligence.” It could only have been considered as an implied admission of the necessity of such a railing, and that defendants were negligent in not having *39erected it before. But the true rule requires evidence of negligence, based upon circumstances at or prior to the accident. It is an old and time saying that accidents always happen in a way that one did not expect.
¶6It would be unfortunate if no provision could be made against a repetition of the disaster, because such act would be construed into an admission that it was negligence not to have it done before.
¶7For the error in receiving the evidence the judgment must be reversed and a new trial granted, costs to abide the event.
¶8(dissenting):
¶9There are one or two points which make me doubt whether the admission of proof of the erection of a railing was error.
¶10The case was tried before the court without a jury.
¶11To hold defendants liable, it was necessary or competent to prove funds in their hands. Proof of the erection of the railing was offered for this purpose, and also to show that they exercised control over the bridge. For that purpose it was proper. (Sewell v. Cohoes, 11 Hun, 626.)
¶12Then it appears that the railing was put up in accordance with a resolution passed prior to the accident. . In that view it was not an after thought, but was evidence that, before the accident, the defendants thought a railing necessary.
¶13It is true that at folio 475 of the case it is said that the subsequent erection of the bridge was considered on the question.of defendants’ negligence. But if it was evidence that they had funds, or that they had control of the bridge, then it was proper on the question of their negligence. Their negligence consisted in not putting up a rail when they had funds (or the means to obtain funds), and when they had control of the bridge. And the fact that they had decided to put up a railing before the accident, and did put it up after, is not objectionable under the Dougan v. Champlain case, although they carried out their decision afterwards.
¶14Judgment reversed, new trial granted, costs to abide event.