Baustian v. Young And the City of St. Louis

• Decision Date: 14 November 1899
• Citation: 53 S.W. 921,152 Mo. 317
• Parties: Baustian v. Young and the City of St. Louis, Appellants
• Court: Missouri Supreme Court

53 S.W. 921

152 Mo. 317

Baustian v. Young and the City of St. Louis, Appellants

Supreme Court of Missouri, First Division

November 14, 1899

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Reversed and remanded (with directions).

B Schnurmacher and Chas. Claflin Allen for appellants.

(1) The instruction given by the court of its own motion, and afterwards condemned by it, was correct. The instruction merely declared, in proper terms, the legal effect to be given to the photographs offered in evidence by plaintiff. These photographs were not taken at the time of the accident but four days later. They were merely admissible to explain or illustrate plaintiff's testimony, exactly as a plat or diagram or picture drawn by him would have been, and were entitled to no greater consideration. State v. O'Reilly, 126 Mo. 597; Geer v. Mo. Lumber & M. Co., 134 Mo. 85; Wurmser v. Frederick, 62 Mo.App. 634; Blair v. Pelham, 118 Mass. 420; State v. Hersom, 90 Me. 273; Dederichs v. Railroad, 46 P. 656; Carter v. State, 46 S.W. 236; Scott v. New Orleans, 75 F. 373; State v. Hunter, 52 P. 247. (2) When a photograph, taken after the happening of an occurrence, is allowed to go to the jury, not as independent evidence, but that they may more readily understand the testimony, it is eminently proper for the court to apprise the jury, by instruction, of the effect to be given to such photograph. Scott v. New Orleans, 75 F. 373; State v. Hunter, 52 P. 247; Taylor v. Hall, 106 Mo. 323; Clark v. Cordry, 69 Mo.App. 15; State v. Seal, 47 Mo.App. 603. Whenever there is danger that evidence which is properly admitted for one purpose may be used by the jury, in making up their verdict, for another, the court may instruct them as to its proper use. Garesche v. St. Vincent's College, 76 Mo. 332; Woods v. Railroad, 51 Mo.App. 500; Rall v. McCrary, 45 Mo.App. 365. (3) The verdict was for the right party, and should not have been disturbed, even though the court's instruction was erroneous. (a) There was no pretense of actual notice to the city, and the alleged defect in the plank was latent and not obvious or notorious; and, therefore, not of the character which would impute notice. Carvin v. St. Louis, 151 Mo. 334. (b) And there was absolutely no proof as to when the plank had rotted to such a point, or the earth under it had washed away to such an extent as to make the sidewalk dangerous. While the court will take judicial notice of the fact that it takes time for a plank to decay, it will not determine judicially at what particular period of time the process had so far progressed as to reach the danger point. Badgely v. St. Louis, 149 Mo. 122.

James L. Hopkins for respondent.

(1) "Photographs are competent evidence, and when properly taken are judicially recognized as of a high order of accuracy." Beardslee to use v. Columbia Township, 188 Pa. St. 502. (2) Whether a photograph has been sufficiently identified is a question usually left to the discretion of the trial court, and not subject to review upon appeal. Com. v. Coe, 115 Mass. 481; Blair v. Pelham, 118 Mass. 420; Walker v. Curtis, 116 Mass. 98; Harris v. Quincy, 171 Mass. 472; Archer v. Railroad, 106 N.Y. 589; Dorsey v. Habersack, 84 Md. 117. (3) The photographs in question were competent and material to show the manner in which the board walk, at the time and place in question, had become rotten, and decayed. Alberti v. Railroad, 118 N.Y. 77; Goldsboro v. Railroad, 38 A. 433. (4) Photographs have a probative value superior to that of maps, plats, or diagrams. They may be evidence of themselves, and are not limited to supplementing or assisting oral testimony. Shorten v. Judd, 56 Kan. 43; Udderzook v. Com., 76 Pa. St. 340. (5) "It is the duty of the city to keep its streets and sidewalks in a reasonably safe condition for persons traveling thereon with ordinary care and caution." Carrington v. St. Louis, 89 F. 208. (6) For practical purposes, the opportunity of knowing in such cases, must stand for actual knowledge. Franke v. St. Louis, 110 Mo. 516; Bonine v. Richmond, 75 Mo. 439.

VALLIANT, J. Brace, P. J., and Robinson, J., concur; Marshall, J., not sitting, having been of counsel.

OPINION

VALLIANT, J.

Appeal from the circuit court of St. Louis upon an order granting a new trial.

The suit is for damages for personal injuries which plaintiff avers he sustained in consequence of a defective sidewalk. There was but one witness who testified as to the accident and its cause, which was the plaintiff himself. The only other witness for plaintiff was a physician who spoke of the nature of the injury. According to the plaintiff's testimony he was walking on a plank sidewalk on Morganford road which is an unimproved street in the outskirts of the city, when he stepped on the end of a plank which yielded to his weight and caused him to fall, striking his shoulder against a telegraph pole which caused the injury complained of. Morganford road at the point in question was like a country road, no curbing or guttering, and this wooden sidewalk was like what is seen in a country town. Whether it was put down by the city or the neighbors he did not know. After he got up he examined the place and saw that the ground underneath the sidewalk had washed out, the sleepers were rotten, and the nails hanging down; the hollow in the ground was what caused the plank to go down; it was rotten but would not have given away but for the hollow in the ground under it. Plaintiff was a carpenter and was employed in that vicinity; during the period of this employment he had passed along Morganford road at this point about a dozen times, but had always before walked in the road, not on the sidewalk. Four days after the accident plaintiff took a photographer to the scene and caused two photographs to be taken showing the sidewalk at that point and the surroundings. These photographs were admitted in evidence over the defendants' objection. This, with the physician's testimony as to the nature of the injury, was all the evidence on the part of plaintiff.

Defendants produced five witnesses who testified that they habitually passed over that sidewalk several times daily and never noticed any defect in it.

This was all the evidence. At the close of the plaintiff's evidence, and again at the close of all the evidence the defendant city asked an instruction in the nature of a demurrer to the evidence, which was each time refused and exception taken.

A number of instructions were given at the instance of the parties respectively about which no question is raised. But the court of its own motion gave the following:

"The court instructs the jury that the photographs shown to the jury are only to be considered by the jury as evidence of the general surroundings of the place where the accident occurred; and are to be given only such weight, as such evidence, as the jury believe from all the facts and circumstances in evidence, they are fairly entitled to.

"In no event are the photographs, or either of them, to be considered by the jury as any evidence at all of the accident or as to the cause thereof, or as to what parties are responsible for the condition of the sidewalk, or as to whether any person is responsible for the condition of the sidewalk or for the accident."

There was a verdict for defendants, which on motion of plaintiff was set aside and a new trial granted on the sole ground that the court erred in giving the instruction above quoted; from that order defendants appeal.

I. The objection to the instruction insisted on by the respondent is that while in the first clause it indicates that the photographs are to be considered as evidence of the general surroundings of the place where the accident occurred, yet in the second clause the jury are directed not to consider them as evidence at all relating to the cause of the accident.

The photographs in connection with the testimony of the witness purport to show a defect in the sidewalk which according to the plaintiff's testimony was the cause of the accident. If then the photographs are not to be considered as bearing on that point, they are not in evidence at all.

A photograph taken as these were several days after the occurrence, have not precisely the same influence, or weight as evidence, as one taken in the moment of the act it purports to portray.

It is not admissible in evidence at all until it is proven by testimony aliunde to be a true photographic print of the thing in question, but after that foundation has been laid the photograph speaks with a certain probative force in itself. We take judicial cognizance of the fact that the natural forces employed in the art of photography produce certain results, and we credit the picture accordingly. But a photograph speaks only of one instant, and that the instant in which the object is seen through the camera. It may be like the object as it appeared at another time, but the natural forces that printed the photograph do not so testify, and whether it is or not depends on other evidence.

These photographs testify to us how the sidewalk appeared at the time they were taken, the plaintiff testified that it appeared at the time of the accident as it appears in the photographs, but the photographs are silent on that point, and serve in that connection only as illustrations of the witness's testimony.

They are of the same character of evidence as diagrams and pictures drawn by hand; not necessarily carrying the same degree...