(after stating the facts). First. There was evidence to sustain the allegations of the complaints, and the verdicts were not excessive.
Second. Appellees asked a witness the following question:
Q. “I want you to state whether or not the railroad company, any time since 1902, has made that trestle larger?”
Appellant objected to the question. Thereupon counsel for appellees said: “I offer to make this proof to show that the opening at the creek was smaller than it is now, and for that purpose only.”
The court overruled appellant’s objection, and permitted the witness to answer as follows:
“ A. Yes, sir. * * * A good deal. I don’t know exactly, I have never measured it, but it is about the length of a sill. * * * Somewhere about sixteen feet. * * * There was a wreck there in 1903, and they built a longer trestle.”
The appellant excepted to the ruling of the court. This court in St. Louis Southwestern Ry. Co. v. Plumlee, 78 Ark. 147. held (quoting syllabus) that “where it was matter of dispute whether the deceased was killed by the defective condition of the wheels of a hand car, it was prejudical error to permit plaintiff to prove that sometime after the accident defendant removed the wheels in question from the hand car.”
The following rule laid down in 8 Ene. Ev. at page 914 is sustained by numerous authorities: “Evidence of alterations, repairs or additional safeguards after the accident is not ordinarily competent, either to show the defective condition at the time of the accident or for other purposes. Even when such evidence is put in by the defendant, it cannot be considered by the jury in determining whether or not the thing was in a defective condition at the time of the accident. For such evidence has no legitimate tendency to show unsafeness before the accident; and thus it is irrelevant, for the reason that the change may as well have been prompted by information gained from the accident as information with which the defendant was chargeable previously, and accordingly the exercise of greater care after the accident does not reasonably tend to show a want of previous due care.” See cases cited in note and among them Prescott & N. W. Ry. Co. v. Smith, 70 Ark. 179, where Judge Riddick, speaking for the court, recognized and approved the doctrine in a quotation from Morse v. Minneapolis & St. L. Ry. Co., 30 Minn. 468, as follows:
“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 to be unjust that he could not do so without being liable to have such act 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 to continued negligence: Morse v. Minneapolis & St. L. Ry. Co., 30 Minn. 468.”
In the case of Prescott & N. W. Ry. Co. v. Smith, supra, we-held that the admission of such evidence was error, but found it was not prejudicial error in that case for the reason that the negligence of the railway company was conclusively established by other evidence.
In the case at bar it cannot be said that the negligence of appellant was conclusively established. by other evidence, and that therefore the objectionable evidence did -not work any prejudice to appellant. The announcement by counsel for appellee, at the time the testimony was offered, that the sole purpose was to show -that the opening of the creek was smaller at the time of the injury than at the time of the trial did not make the testimony competent for the purpose avowed. The court did not tell, and was not asked to tell, the jury that the evidence could only be considered to determine the width of the opening at the time of the overflow. The width of the opening at the time of the overflow was not in dispute, and the width of the opening at the time of the trial, or after the overflow, was.not in issue at all. The very fact “that the opening of the creek was smaller in 1902 than now” at the time of the trial, because appellant had enlarged'it since the accident, was the fact that contravened the rule announced, and was the fact that, under the rules could not be proved. It was proper to show what the width of opening was at the time of the 'Overflow. But such fact could only be estab-, lished by competent testimony.
In the case of Bodcaw Lumber Co. v. Ford, 82 Ark. 555, at page 561, the court declared the rule as here announced, but held that -the incompetent .evidence elicited there “came yout -incidentally in the testimony of witnesses introduced by each party” to show the condition of the machine at the time of the accident. There they were seeking to prove directly the condition of the machine at the time of the accident, and not that there had been alterations and repairs made after the accident. But’ here they were seeking to show “ that the opening of the creek was smaller in 1902 than now.11 In other words, the fact that the testimony tended directly to establish in this case was that since the injury the appellant had built a longer trestle; as the witness answered, “somewhere about sixteen feet” longer.
Appellee relies upon the case of Bodcaw Lumber Co. v. Lord, supra, to sustain his contention that the testimony set out above was not prejudicial error. But we are of the opinion that there is a clear distinction, between that case and this "on the point under consideration.
“When incompetent evidence is introduced, prejudice is presumed, and the burden is on the party introducing it to show that no prejudice resulted.” St. Louis, I. M. & S. Ry. Co. v. Courtney, 77 Ark. 431.
Third. The instructions given at the instance of appellant, were certainly as favorable to it as it could ask, and the court did not err in its ruling upon the prayers refused.
Fourth. In view of a new trial, should the evidence warrant the court in submitting the question as to' whether the overflow of 1902 was of such extraordinary character as that it could not have been reasonably anticipated and guarded against by the exercise of ordinary care, then the court should make its instructions on this phase of the case harmonious. The court in some of its instructions presented this idea, as in those numbered two, seven and ten given at the instance of appellant and one and two asked by appellees. But in instructions numbered three' and four given at the request of appellees this idea was not presented, and therefore the instructions covering this particúlar phase of the case might be construed as conflicting.
The charge should conform to the law as announced in Railway Company v. Cook, 57 Ark. 387, and should constitute a consistent whole. It was not the duty of the railway company to construct its embankment so as “to let the waters in time of overflow pass off and flow as they naturally or otherwise would have done.” The necessary uses of the embankment and the proper construction thereof as a roadbed for appellant’s railway might have made it impossible not to obstruct the natural flow of the waters in their accustomed channels. The exercise of ordinary care might not have been able to prevent this, and it was not required. The only duty of the company was to so construct its embankment that, if there was a diversion thereby into other channels than those followed by the water 'in its natural course, then the railway company should exercise ordinary care to provide other channels, or sufficient openings in its embankment to carry off these waters in their diverted course, so as to prevent injury to others. This refers only to waters or freshets that are not extraordinary and unprecedented as explained above.
The judgment is reversed, and the cause is remanded for new trial.