Perri v. Tassie , 293 Mich. 464 ( 1940 )

I am of the opinion that a new trial should be granted. For the reasons stated by Mr. Justice BUTZEL the trial court erred in refusing either to strike the testimony of Dr. Carter or to instruct the jury that the opinion expressed by him was entitled to little or no weight. I do not agree, however, that the court erred in holding the photograph admissible.

This court said in Pruner v. Railway, 173 Mich. 146:

"In photographs there should be a substantial identity in the person, place, or thing photographed and that which the jury are to consider in the case. It is difficult, and often impossible, to obtain a photograph of the scene of the accident at or about the time of the accident, but, having in mind the object sought, the assisting of the jury by knowledge of the locality to judge the conduct of the parties with reference to the issue raised, the only practical rule would seem to be that the changes must not be such as to destroy the substantial identity. The changes should be carefully pointed out and brought to the jury's attention. With these safeguards, the subject must be left largely to the discretion of the trial judge, and, while in the instant case the court might very properly in his charge have called the jury's attention more particularly to the changes, still we cannot say that his failure so to do was prejudicial error under the circumstances of this case."

The admissibility of a photograph in evidence is largely within the discretion of the trial judge. Amedeo v. RailwayCo., 215 Mich. 37, 55. We have approved the use of photographs of the scene taken sometime after the accident in negligence cases. This was done in Pearce v. Rodell, 283 Mich. 19. See the instruction by the trial court as to the use of such photographs by a jury at page 28 of that opinion.

In Davis v. City of Adrian, 147 Mich. 300, the photograph of an ulcerated sore was held properly admitted where the jury had been instructed as to the consideration to be given to the accompanying testimony. In this case the objection was made that the sore resulted from improper treatment rather than from the injury upon which the cause of action was based.

In Beardslee v. Columbia Township, 188 Pa. 496, 502 (41 A. 617, 68 Am. St. Rep. 883), the court said:

"The only practicable rule would seem to be that the changes must not be such as to destroy the substantial identity, and that the changes, whatever they are, must be carefully pointed out and brought to the jury's attention. This would have to be the course pursued if a view were allowed to the jury at the trial, and no other appears practicable in regard to plans, photographs or other substitutes for a view. With these safeguards the subject must be left largely to the discretion of the trial judge."

See, also, Rogers v. City of Detroit, 289 Mich. 86.

Counsel was informed, in the presence of the jury, that the picture was not admissible to show the length of the incision at the time defendant operated and the jury was aware that the photograph was taken after a second operation and during the trial of the case. The rights of the defendant were amply safeguarded by these statements of the court.

We are unable to hold that the admission of the photograph of the scar on Mrs. Perri's abdomen was an abuse of discretion.

I concur in the conclusion reached by Mr. Justice BUTZEL that the judgments in both cases should be set aside and they should be remanded for a new trial.

SHARPE, POTTER, NORTH, and McALLISTER JJ., concurred with BUSHNELL, C.J.