Section 12.12 Proof of Dangerousness of Condition in Similar Circumstances

• Library: Evidence 2017

a. (§12.12) Proof of Dangerousness of Condition in Similar Circumstances

The fact of a prior accident may be admitted when offered to show “dangerousness” of “substantially similar” conditions. In Pierce v. Platte-Clay Electric Cooperative, Inc., 769 S.W.2d 769, 775–76 (Mo. banc 1989), a negligence action against an electric utility, the Court held that it was not an abuse of discretion to receive a witness’s testimony that five years earlier he had struck the same electric pole guy wire at a time when the brush at the edge of the farm field was “basically the same” and the wire was concealed from view. Additionally, the Eighth Circuit has held that when the possessor of the premises has knowledge of previous falls, the evidence of those falls is relevant in showing “notice of a possibly dangerous condition and the fact of a dangerous condition when the circumstances are similar.” Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 139–40 (8^th Cir. 1968). Evidence of other accidents may be relevant to:

· the defendant’s ability to correct known defects;

· the magnitude of the danger;

· the lack of safety for intended uses; or

· causation.

Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 613, 625 (8^th Cir. 1983).

Included below are cases that illustrate the instances in which the court applied the above exception and allowed evidence of a prior accident or similar happening when offered to prove dangerousness of a condition in similar circumstances:

· Doyle v. St. Louis-San Francisco Ry. Co., 571 S.W.2d 717, 720 (Mo. App. E.D. 1978). The court held that evidence via testimony of another motorist about the experience, one year later, of approaching the defendant’s railroad crossing and failure to see the train “because of the vegetation,” failure to hear a whistle or bell, and learning of an approach of a train from feeling vibrations was...