BINGHAM MINES CO. v. BIANCO, 246 F. 936

HOOK, Circuit Judge. The administrator of the estate of James Ozzello, deceased, recovered a verdict and judgment against the Bingham Mines Company for negligently causing the death of his intestate. The action was brought under a statute of Utah (section 2912) for the benefit of the widow and minor children. It is urged by defendant that since the beneficiaries are nonresident aliens, subjects of the kingdom of Italy, the right conferred by the statute does not inure to them, but is for the exclusive benefit of the residents and citizens of this country.

The statute is general in its terms and contains nothing indicating an intention so to restrict its application. The weight of authority is against defendant’s contention. McGovern v. Railway, 235 U. S. 389, 35 Sup. Ct. 127, 59 L. Ed. 283; Patek v. American Smelting & Refining Co., 83 C. C. A. 284, 154 Fed. 190, 21 L. R. A. (N. S.) 273. The deceased was in defendant’s service as a mucker, and at the time of the accident was at work in an underground drift in its mine. No one witnessed his death, and the proof of the cause was drawn largely from the surroundings and the condition of the body.

The plaintiff claimed he came in contact with an overhead trolley wire heavily charged with electricity which was negligently maintained so low, so near the floor level of the entry, as to be dangerous. The defendant claimed that the wire, with which the deceased had no duty, was at a height that afforded entire safety. The height of the wire at the time and place of the accident was an important issue at the trial.

The plaintiff produced a witness who was in defendant’s service, and who testified to measurements he made shortly after the accident.' He was also allowed over defendant’s objection to testify that at the time of the measurements he also made repairs and changes in the structure, altering its condition in that particular. Counsel contended that the evidence was proper to show the time when the measurements of the original condition were made, and it was so admitted.

It is a familiar rule that collateral or irrelevant facts that fix the time at which a relevant fact occurred are admissible in evidence so far as necessary for the purpose, but it cannot be employed as a pretext for the admission of evidence that is in itself incompetent and prejudicial. In the case at bar the time when the witness made the measurements could have been elicited by simple and direct qüestions so confined in their scope. Proof of or reference to the making of changes was wholly unnecessary, yet by repeated questions the fact was emphasized and made prominent.

Not only was it unnecessary, hut the evidence so brought in was distinctly prejudicial and incompetent upon the issue being tried. It is the settled doctrine of the courts of the United States that in actions for injuries alleged to have been caused by defective machinery, appliances, or places of work evidence of subsequent alterations or repairs has no legitimate tendency to prove negligence at the time of the accident and is calculated to prejudice the defendant. Columbia Railroad Co. v. Hawthorne, 144 U. S. 202, 12 Sup. Ct. 591, 36 L. Ed. 405; Atchison, etc., R. Co. v. Parker, 5 C. C.

A. 222, 55 Fed. 595; Motey v. Pickle Marble & Granite Co., 20 C. C. A. 366, 74 Fed. 155. The other questions presented by the assignments of error may not arise again. The judgment is reversed, and the cause is remanded for a new trial.