dissenting. I dissent, because I think appellant’s third and tenth exceptions should be sustained. These exceptions substantially make the point that, in a case of this kind, testimony tending to show that the defendant, after the accident has occurred resulting in the injury complained of, has taken additional precautions to prevent the recurrence of such an accident, is inadmissible for any purpose. In the case of Columbia Railroad v. Hawthorne, 144 U. S., 202, the Supreme Court of the United States so held. In that case, Mr. Justice Gray, as the organ of the Court, used the following language: “Upon this question there has been some difference of opinion in the Courts of the several States. But it is now settled, upon much consideration, by the decisions of *242the highest Courts of most of the States in which the question has arisen, that the evidence is incompetent, 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 had been negligent before the accident happened, and is calculated to distract the mind of the jury from the real issue and to create a prejudice gainst the defendant,” citing quite a number of cases to sustain his view. Amongst the cases cited is Morse v. Minneapolis & St. Louis Railway, 30 Minn., 465, where Mr. Justice Gray says: “The true rule and the reasons for it were well expressed.” In that case the following language was used: “But, on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances * * * not for the reason given by some courts * * * but upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. 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 would he be to do so, and it would seem unjust that he could not do so without being liable to have such acts 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 for continued negligence.” These views, supported, as they are, by the highest authority, have also the support of reason and common sense. If a person or corporation is engaged in an employment involving the use of machinery, which is always more or less dangerous, cannot, after an accident has occurred resulting in injury to an employee, provide additional safeguards to prevent the recurrence of such an accident, except at the peril of having his effort to insure the safety of his employees, as far as *243practicable, introduced as evidence to show his previous negligence, when sued for damages resulting from such accident, it is very obvious that such rule would not only be against public policy, as is said in some of the cases, but would also tend to prevent providing such additional precautions as experience has shown to be at least prudent, if not necessary. It is quite true, as said by the Circuit Judge, in his comments on defendant’s tenth request to charge, that when this testimony was first offered (folio 39 of the “Case”) the Judge ruled it out; but he overlooks the fact that when similar testimony was offered (folio 70 and 71 of the “Case”) and objected to, the objection was overruled and the testimony was admitted. This occurred, as the “Case” shows, during the examination of the plaintiff as a witness, before the testimony on the part of the plaintiff was closed; and, of course, before the witness, Benjamin, had testified on the part of the defendant. The admissibility of the testimony must be tested by what was before the Court when the objection was interposed, and not by what occurred afterwards. Surely, if the plaintiff, against the objection of the defendant, is allowed to introduce incompetent evidence, the fact that the defendant, after stick ruling, offers other evidence tending to show its version of the same fact, cannot be allowed to affect the question as to the original admissibility of the testimony when it was first ■ offered. For if the testimony when originally offered was incompetent, then the testimony offered by the defendant, in rebuttal or explanation of the incompetent testimony adduced by plaintiff, should likewise be ruled out. While the Circuit Judge, in his comments on the defendant’s tenth request to charge, does seem to intimate that the testimony in question was not competent as an admission of negligence, yet he distinctly says that it might be considered as throwing light on the question whether the defendant had furnished the plaintiff with safe and suitable appliances and a safe place to work, which, in my judgment, can mean nothing else than whether the defendant had been guilty *244of negligence in not furnishing the plaintiff with safe and suitable appliances and a safe place to work, and hence he held that such testimony was competent on the question of negligence. So that if the law be, as it is stated in the authorities above cited, that such testimony is not competent '■'■under any circumstances,” or that such testimony “has no legitimate tendency to prove that the defendant had been negligent before the accident happened,” it is clear that there was error on the part of the Circuit Judge.
For the reasons herein stated, I think the judgment of the Circuit Court should be reversed, and the case remanded to that Court for a new trial.
Mr. Justice Jones concurs in the dissenting opinion of Mr. Chief Justice Mclver.