Beardslee v. Columbia Township , 188 Pa. 496 ( 1898 )

Opinion by

Mr. Justice Mitchell,

The first three assignments of error are to the use of a photograph and permitting witnesses to indicate upon it to the jury the exact place of the accident, without any preliminary proof that it represented the place at all, and especially in view of the admission that it was not taken until after changes had been made in the road. This was error at the time. But it appears that before the photograph was formally admitted in evidence, proof had been supplied of the identity of the locality, the'general faithfulness of the representation, and the nature of the changes in the condition of the road between the túne of the accident and the time of photographing. It becomes therefore a mere question of the order of testimonj’- which is largely within the discretion of the trial judge, and the initial error -was cured so that it did appellants no harm.

Photographs are competent evidence, and when properly taken are judicially recognized as of a high order of accuracy. See Udderzook v. Com., 76 Pa. 340. But in careless, or inexpert, or interested hands they are capable of very serious misrepresentation of the original. Before they are permitted to be used in the trial, therefore, there should always be preliminary proof of care and accuracy in the taking of them, and of their relevancy to the issue before the jury.

The further objection in the present case, that the photograph was not taken until after the township defendant had made changes in the road at the place of the accident, is not without difficulty. In photographs, as in plans, maps or other drawings used as evidence, there ought to be substantial identity in the person, place or thing photographed, and that which the jury are to consider in the case. But photographs of the scene of an accident taken at or near to the time are not always obtainable, and bearing 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 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. In the present case we cannot say that there was any error in regard to the photograph of which the appellants are now entitled to complain.

The fourth to ninth assignments inclusive we are obliged to sustain. A hypothetical ease as to the horses, the harness, the wagon and the load, as defendant viewed the evidence in regard to tbo accident, was asked, of a number of witnesses, and their opinions were admitted as evidence of contributory negligence on part of the plaintiff. They were not experts, several of them expressly disclaiming such'character, and so far as appears none of them knew any more about the subject than the average juryman. There is no view on which the admissibility of such opinions can be sustained. The subject was carefully considered and the rule intended to be finally settled in Graham v. Penna. Co., 139 Pa. 149. See Dooner v. Canal Co., 164 Pa. 17, Cookson v. Ry. Co., 179 Pa. 184, and Auberle v. McKeesport, 179 Pa. 321. For this error in a generally well tried case we are obliged to reverse the judgment.

The assignments relative to the duty of the plaintiffs to have avoided the road where the accident occurred by taking another one need not be considered in detail. The jury were told in answer to one of defendant’s points, “ that if the point of the accident was so dangerous that an ordinarily prudent person would not have attempted to pass it, but would have taken another road under the circumstances, then the plaintiffs cannot recover in this case, and your verdict should be for the defendant.” Appellants complain that there was no sufficient evidence that the other road was any safer, but as the ease must go back for another trial it would be of no use to discuss this point any further.

The last assignment is to some remarks made by the judge in sustaining appellants’ objection to an offer by the defendant. As the ruling of the court was in their favor, appellants would of course have no exception at common law, and their standing to object here must rest entirely on the Act of May 24, 1887, par. 3, P. L. 199, which authorizes exceptions to rulings, orders and remarks of the judge made in the hearing of the jury at any stage of the proceedings. This is a provision of very doubtful wisdom, and under it tire ordinary rule that the error assigned must appear to have been injurious to the appellant will be most rigidly applied. The remarks of the judge here complained of are susceptible of an interpretation that would indicate that he had in mind the earlier rather than the later cases on the subject of the negligence of a driver as imputable to a voluntary passenger. But it is not entirely clear that such was his meaning, and as he sustained appellants’ objection the jury could hardly have drawn any inference adverse to the appellants from the occurrence.

Judgment reversed and venire de novo awarded.