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Hansson v. Catalytic Construction Co.

Decided: December 5, 1956.


Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.


This is an appeal from a judgment of $9,500 in favor of the plaintiff entered on a jury verdict for personal injuries allegedly resulting from defendant's negligence, and from the denial of defendant's motion for a new trial.

The defendant was engaged by the Tidewater Associated Oil Company to remove "case heads" from the top of 12 large catalytic tanks, which were to be cleaned and repaired. Since each case head weighed more than five tons, the defendant rented a crane with equipment including a 100-foot boom and a 30-foot jib. While removing the first case head, the boom of the crane buckled and the case head crashed against a building in which the plaintiff, an employee of Tidewater, was working. In attempting to reach a place of safety, the plaintiff fell and was injured.

Mr. Charles J. Crowley, an employee of the defendant in charge of the crane operation, testified for the plaintiff that he initially refused to remove the case head with the crane as he "didn't think it was safe," but that despite his objection he was directed to proceed by defendant's assistant superintendent. Frank Tamburri, the operator of the crane, testified for the defendant that before the accident he had inspected the crane; that it was in "A-1 condition"; that he lifted the first case head about a foot and a half, and held it suspended for about five or ten minutes until "they decided what to do"; that, upon receiving a signal, he "picked it up three and one-half feet to clear the fence and in swinging out the boom started buckling." He testified that in the removal of the case head the 100-foot boom with the 30-foot extension jib was used, and that the crane was capable of lifting 12 or 13 tons. Additionally, on cross-examination, he was permitted to testify, over objection, that the remaining case heads were removed without further incident

with the same crane but using a 105-foot boom without a jib. On cross-examination, the defendant's supervisor was permitted to give similar testimony.

The defendant urges as reversible error the admission into evidence of the foregoing testimony, to the effect that subsequent to the accident the method of removing the case heads was changed.

It is the general rule that evidence of changes and repairs made subsequent to an injury, or of subsequent precautions, is not admissible as showing negligence or as an admission of negligence. Perry v. Levy , 87 N.J.L. 670 (E. & A. 1915); Schwartz v. Federal Deposit Insurance Corp. , 127 N.J.L. 556 (E. & A. 1942); Rynar v. Lincoln Transit Co., Inc. , 129 N.J.L. 525, 530 (E. & A. 1943); 2 Wigmore on Evidence (3 d ed. , 1940), § 283, p. 151. Exceptions to this rule have been recognized where the evidence is offered to establish control over the injuring instrumentality, Perry v. Levy, supra; Pirozzi v. Acme Holding Company of Paterson , 5 N.J. 178 (1950); to prove the condition existing at the time of the accident, Millman v. U.S. Mortgage & Title Guaranty Co. , 121 N.J.L. 28 (Sup. Ct. 1938); Whellkin Coat Co. v. Long Branch Trust Co. , 121 N.J.L. 106 (Sup. Ct. 1938); to affect the credibility of a witness, Lombardi v. Yulinsky , 98 N.J.L. 332 (Sup. Ct. 1923); or to show a different method was feasible for avoiding the danger, Apgar v. Hoffman Construction Co. , 124 N.J.L. 86 (E. & A. 1940). See Report on the Committee on the Revision of the Law of Evidence to the Supreme Court of New Jersey , dated May 25, 1955, Rule 51, at page 102, and Report of the Commission to Study the Improvement of the Law of Evidence (J.R. 1955), November, 1956, Rule 51, at page 47.

Here, none of these exceptions obtains. The evidence was not offered to prove the condition of the boom or crane at the time of the accident or to affect the witnesses' credibility, nor was there any dispute regarding control of the crane or the feasibility of a different method of removal. Thus, the evidence was inadmissible. Its admission would

tend to defeat the policy of encouraging, rather than discouraging, remedial safety measures taken in order to prevent the recurrence of a similar accident. McCormick on Evidence (1954), § 252, p. 543; see also Spinelli v. Golda , 6 N.J. 68, 78 (1950) and Daniels v. Brunton , 7 N.J. 102, 110 (1951).

The plaintiff cites cases from other jurisdictions as authority for an exception additional to those above mentioned, i.e. , that evidence of subsequent remedial measures may be admitted to prove the cause of the injury, Wigmore on Evidence, supra , § 283, p. 159, note 3; 170 A.L.R. 7, 52; urging that here he should have been permitted to show that overloading of the boom, rather than a latent defect as claimed by the defendant, caused the plaintiff's injuries. The overloading, he argues, was occasioned by the use of the jib at the end of the boom, increasing not only its length but the maximal stress thereon. However, the inference thus sought to be drawn from the elimination of the jib is not valid as it is clear from the evidence that the removal of the other case heads was with a different boom from the one which buckled. Thus, the fact that measures were taken to reduce the stress on the second boom after the accident in no way proves or disproves that the first boom was latently defective.

Thus, we find that the admission of testimony that subsequent to plaintiff's injury the defendant changed the equipment used for the removal of the case heads was erroneous, and since it was inconsistent with substantial ...

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