Lafayette Street Railway, Inc. v. Ullrich , 92 Ind. App. 202 ( 1929 )

ON PETITION FOR REHEARING. Appellant is so insistent that the court committed reversible error in the admission of the evidence of Dr. McClelland that we conclude to give reasons why the admission of such evidence, if error, was not reversible error.

It appears by the evidence that the radiographs in question were not susceptible of being understood by one not skilled in their interpretation, and, without explanation, would be 8, 9. unintelligible to the jury. Under such conditions, the best evidence was not the plates themselves, but the testimony of one skilled in their interpretation. Marion v.Coon Construction Co. (1915), 216 N.Y. 178, 110 N.E. 444;Colesar v. Star Coal Co. (1912), 255 Ill. 532, 99 N.E. 709, 712. In the first case cited, it was held that such plates were not admissible in evidence because they were unintelligible to the jury. Two physicians preceded Dr. McClelland on the witness stand, and testified concerning the condition of appellee's pelvic bones as disclosed by radiographs taken of her body. After being properly identified, these radiographs were offered in evidence, but appellant objected to their admission on the ground that they could not be interpreted by an untrained eye, and that a jury composed of laymen would be unable to understand them. The offer was then withdrawn, but, later, it was made again, when appellant again objected, for the reason that the radiographs were of such a nature that the jury would be unable to interpret them, and that they would be unintelligible to the jury, and the objection was sustained. In the opinion of experts, all of these radiographs, including the ones about which Dr. McClelland testified, would have been unintelligible to the jury, and, on this ground, the court excluded the first ones offered, and now appellant complains of permitting Dr. McClelland to testify concerning the facts disclosed by the radiographs taken of the same part of appellee's body, at a subsequent time, by a competent operator, under essentially the same conditions, without first offering and having the plates admitted in evidence. Appellant's inconsistent position is manifest. The error, if any, was invited.

Appellant very forcefully challenges our statement in the original opinion to the effect that instructions 1 and 6, tendered by appellee and given by the court were not 10. erroneous but were incomplete as to the degree of care required. We have given these instructions further consideration, and have to say that we conclude that we were not justified in making such statements concerning them, and that neither of the instructions was erroneous nor was it incomplete. Instruction No. 1 stated that a common carrier must exercise careconsistent with the mode of its conveyance and the practical prosecution of its business for the safety and protection of its passengers. Instruction No. 6 states that a passenger has the right to assume that a carrier will exercise care consistent with the mode of its conveyance and the practical prosecution of its business for the safety and protection of its passengers. Appellant again calls attention to the case of Union Traction Co. v. Berry, Admr. (1919),188 Ind. 514, 121 N.E. 655, 124 N.E. 737, 32 A.L.R. 1171, where the kind of care required to be exercised by the carrier is defined as "due care," "ordinary care," or "reasonable care," the court stating that such terms are regarded by the courts as having the same significance. But, in the case of Evansville, etc., R. Co. v. Hoffman (1914), 56 Ind. App. 530, 538, 105 N.E. 788, so confidently relied upon by appellant, we find another definition of "ordinary care," which, as it seems to us, is not inconsistent with the "care" required in the challenged instructions. It is there stated that "the term ordinary care embodies the idea that the care required in any given case is commensurate with the known or apparent danger." (Our italics.) In the challenged instructions, the care required was that which was consistent with the mode of conveyance and practical prosecution of its business for the safety and protection of its passengers. As it seems to us, any distinction between care that was consistent with certain conditions, and care that was commensurate therewith is simply a distinction without any substantial difference. In the light of the definition of "ordinary care" as found in the Evansville case, we hold that error, if any, in instructions Nos. 1 and 6, tendered by appellee and given by the court, was not reversible.

Petition for rehearing denied.