Carney v. Pennsylvania Railroad ( 1916 )

Opinion by

Kephart, J.,

The first assignment of error complains of the refusal to admit in evidence photographs of the place of the accident. Photographs are not of themselves substantive evidence and are not evidence per se. They become admissible when they fairly and truthfully represent the object or place desired to be reproduced. Before they are permitted to be used in the trial there should be preliminary evidence by those possessing sufficient knowledge, of the accuracy of the photograph, that it fairly and truthfully represents the place or object. There should be substantial identity in the person, place or thing photographed and that which the jury are to consider in the case. The mere fact that changes have been made which do not destroy the original identity of the place will not preclude the photograph from being admitted, but such changes must be fully explained to the jury that they may have an accurate idea of the place or thing as it existed at the time when the cause of action they are passing on arose: Charles Beardslee, et al., v. Columbia Township, 188 Pa. 496; Buck v. McKeesport, 223 Pa. 211; 17 Cyc. 414. The defendant did not offer any evidence that-the photographs represented the conditions at the place of the accident. In fact, no evidence was; offered that the photographs correctly represented anything. The photographer who took the picture was called and stated that he took the photograph and this was all the evidence as to the accuracy of the picture. It was not sufficient. Anyone who had knowledge that the photograph correctly represented, subject to certain Explained changes, the conditions as they existed on the ground at the time of the accident, would have been corn1 petent to have properly authenticated the photographs: Commonwealth v. Schwartz, 40 Pa. Superior Ct. 370; Wallace v. Penna. Railroad Co., 222 Pa. 556, The first assignment of error is dismissed.

The plaintiffs testified that they occupied the rear coach and they had offered to pay to the conductor their fare; that this was refused and'they w,ere-ejected from the train. The meat of the plaintiffs’ entire case was in this unlawful ejection occasioned by the refusal.to receive the fares offered. The defendant offered the testimony of the brakeman, who was acting as an assistant to the conductor in the collection of fares, and who did collect the fares and tickets in the car in which these plaintiffs were passengers. This testimony was to the effect that no persons in the car had offered to pay fares as described by the plaintiffs. The court below refused to admit this evidence. The offer was comprehensive. It embraced every passenger in the car. It is not to be supposed that an employee handling a large number of persons would be able to remember the face of each passenger from whom he lifts a ticket or collects a fare; and it did not destroy or weaken the probative force of this evidence because he was not able to identify the plaintiffs. This testimony positively contradicted the statement of the plaintiffs and was most essential to the defendant’s case. The circumstances narrated by the plaintiffs being out of the ordinary, the defendant’s employee was more likely to become familiar with such an event and remember it because of this circumstance, while the faces might have been entirely forgotten. The learned court was in error in refusing to admit this evidence and this assignment is sustained.

The same reason may be given for the third assignment. The defendant produced a witness and offered to prove by her that she had seen no person fall after the train stopped. The question was broad enough to include all of the circumstances urged by the appellee. The woman, was present at the station when the train arrived, and observed the passengers getting off the train. If she did not see anyone fall it was material that this evidence be admitted. Its value was for the jury. It was because of a fall from th'e train at this time that Mrs. Carney, one of the plaintiffs, claims she was injured. This assignment of error is sustained.

The judgment is reversed and a venire facias de novo awarded.