Cunningham, Admx. v. Fair Haven Westville R. Co.

The testimony of Louise C. Willman as to the condition of the road at places other than the place of accident, was inadmissible. Possibly in view of the charge of the court the error did not injure the defendant.

There was no error in admitting the testimony of Joseph Euhrick; the existence of the defect for some time prior to the accident tended to establish negligence in failure to repair.

The objection to the question put to the witness McEvoy, certainly in view of his answer, was immaterial; and the objection to the question put to the witness Webber was captious.

A photograph offered for the purpose of proving the appearance of a physical object which cannot be produced in court nor inspected by the jury, is secondary evidence; and its correctness or accuracy, like that of a map or diagram, must be proved, before it can be received. Alberti v. NewYork, L. E. W. R. Co., 118 N.Y. 77. In Dyson v. NewYork N.E. R. Co., 57 Conn. 9, 24, the offer of the photographs was accompanied by the evidence of the photographer who took them, as to their accuracy, and of a surveyor, who identified the points of view. The accuracy sufficient for the admission of a photograph as evidence is a preliminary question of fact to be determined by the trial judge, and the testimony of the photographer is not essential, if other evidence is produced which in fact convinces the court. McGar v. Bristol, 71 Conn. 657.

It seems to be held in Massachusetts that the action of a trial court upon the proof of sufficient accuracy can never be reviewed by an appellate court (Van Houten v. Morse,162 Mass. 414), although it may be by the jury. Marcy v. Barnes, 16 Gray, 161, 163. We do not see how this preliminary question differs from any other where questions of fact and law may be intermingled. Questions of general policy may be involved, and these are usually questions of law; and for other reasons the conclusions of a trial judge may be so clearly against law that we can to a certain extent review them, as in cases of findings in respect to a reasonable notice to take depositions, or a diligent search for a lost document.Nolan v. New York, N. H. H.R. Co., 70 Conn. 159, 190. The proof of accuracy varies with the nature of the evidence the photograph is offered to supply. When it is offered as a general representation of physical objects as to which testimony is adduced, for the mere convenience of witnesses in explaining their statements, very slight proof of accuracy may be sufficient; but when it is offered as representing handwriting which is to be subjected to minute and detailed examination, or any object where slight differences of height, breadth or length are of vital importance, much more convincing proof should be required. It is common knowledge that as to such matters, either through want of skill on the part of the artist, or inadequate instruments or materials, or through intentional and skillful manipulation, a photograph may be not only inaccurate but dangerously misleading.Hynes v. McDermott, 82 N.Y. 41; Geer v. Missouri L. M.Co., 134 Mo. 85; Taylor Will Case, 10 Abb. Pr. Rep. N. S. 300, 318; Eborn v. Zimpelman, 47 Tex. 503.

In the case at bar the photograph was not offered as a mere general representation of the locus in quo; for that purpose it was immaterial if not irrelevant; a map was appropriate for such purpose and that appears to have been in evidence. Its only relevancy as evidence was to show the height of the rail above the surface of the ground where the accident took place. Was the rail several inches above the ground, as stated by the witnesses for the plaintiff, or one and one eighth inches on the inside, as stated by the witnesses for the defendant? Instead of an inspection of the ground and rail, a picture is offered. It is evident that for such purpose a photographic picture might be most deceptive, and that reliable proof of its accuracy should be produced and found sufficient by the judge. We are not now called upon to determine the legal correctness of a finding of this kind, nor whether it can be reviewed; the question presented by the record is whether it was error to admit this photograph without any evidence of its accuracy. We believe no case can be found which warrants such action. It must depend on the assumption that a photograph in all cases is to be regarded as an accurate representation unless the contrary is proved, — an assumption opposed to all authority.

The plaintiff undertook to lay the foundation for the introduction of the photograph as evidence, and for this purpose produced testimony tending to show that the condition of Chapel street between Blatchley avenue and Poplar street, was the same on July 1st or 2d, when the photograph was taken, as on June 22d, the day of the accident, and produced no other testimony. The court thereupon, against the objection of the defendant, admitted the photograph. The ground of objection strongly urged by counsel, that this photograph could in no event be admissible in evidence, went perhaps too far, but he did distinctly urge that it did not correctly represent the rails — and there had in fact been no testimony that it did — and urged that the picture itself showed that the artist had endeavored to secure a misleading representation. The record is a little blind, but it is certain that the court admitted the photograph without any evidence of its accuracy, against objection on the ground of its inaccuracy, and apparently upon the theory that the identity of the place being proved, a photograph is admissible without proof of its accuracy. This is error. An inspection of the picture which is before us as an exhibit, and the evident purpose for which it was offered, indicate the error to be material.

The court denied the defendant's motion to dismiss the jury, made after the plaintiff's counsel in his closing argument had twice alluded to evidence not before the jury, and had twice attempted to influence the jury by reading the finding of facts in a similar case reported in the Connecticut Reports. The court has a large discretion in dealing with such a motion. While the power to grant may be clear, the use of that power may not always best promote justice; and the sitting judge has means of discerning the wiser course, which cannot well be spread upon a record. It appears that the evidence alluded to by counsel was for one purpose proper to have been admitted, and this might have inclined the court to accept the explanation that the allusion was an inadvertence.

The improper reading from reports seems to have no explanation; possibly the court thought the counsel had not gone far enough to get anything damaging before the jury. The language actually used does not appear in the finding. The court has power to discharge a jury for just cause. Unlawful acts by a party to a suit or with his connivance, intended to and adapted to improperly influence a jury, are a just cause of dismissal. State v. Woodruff, 2 Day, 504, 507;United States v. Perez, 9 Wheat, 579; State v. Allen,46 Conn. 531, 547; Baldwin's Appeal, 44 id. 37, 41; Hoxie v.Home Ins. Co., 33 id. 471, 475; Richmond's Appeal, 59 id. 226, 243. The perversion of argument by counsel to the purpose of tampering with a jury must be suppressed. These are considerations for the trial judge to weigh, and we should hesitate in any case to review his decision, without strong reason. As a new trial must be granted in this case, we deem it sufficient to say that the judge might properly have dismissed the jury, without passing upon the claim of error in the refusal.

We have in former decisions referred to this subject, but perhaps not with that unmistakable precision which its importance justifies. An attorney represents his client as an officer of the court and is responsible for the purity and fairness of all his dealings in court. He is bound by oath to exercise his office "with fidelity as well to the court as to his client." To use his argument for placing before the jury testimony that has been excluded, or for testifying himself directly or indirectly through reading books the law forbids to be read, is not "fidelity to the court." It should be distinctly understood that any attorney who indulges in such unprofessional conduct not only subjects himself to the penalty appropriate to a violation of the attorney's oath, but also exposes the client he represents to a loss of the verdict, to which he might otherwise be entitled.

The judgment of the Superior Court is set aside and a new trial ordered.

In this opinion the other judges concurred.