Carlson v. Benton

• Decision Date: 19 November 1902
• Citation: 66 Neb. 486,92 N.W. 600
• Parties: CARLSON v. BENTON ET AL.
• Court: Nebraska Supreme Court

66 Neb. 486

92 N.W. 600

CARLSON

v.BENTON ET AL.

Supreme Court of Nebraska.

Nov. 19, 1902.

Syllabus by the Court.

1. To constitute a foundation for the introduction of an X-ray photograph in evidence, it is not essential that it appear that it was taken by a competent person, nor that the condition of the apparatus with which it was taken and the circumstances under which it was taken were such as to insure an accurate picture, where it has been shown by the evidence of competent witnesses that it truly represents the object it is claimed to represent.

2. The discretion of the trial judge in the reception of such evidence is not absolute, and may not be exercised arbitrarily; and where the evidence as to the accuracy of the photograph leaves no room for a difference of opinion, its exclusion on the ground that a sufficient foundation has not been laid is an abuse of discretion.

3. The district court has authority to render a judgment on a verdict at a term subsequent to that at which the trial was had and at which the motion for a new trial was overruled.

4. At a term subsequent to that at which the motion for a new trial was overruled the unsuccessful party asked the court to render judgment on the verdict. Held, that such party was not thereby precluded from obtaining a review of errors in this court.

Commissioners' opinion. Department No. 3. Error to district court, Merrick county; Grimison, Judge.

Action by Frank A. Carlson against Eugene A. Benton and others. There was judgment for defendants, and plaintiff brings error. Reversed.

W. T. Thompson and George W. Ayres, for plaintiff in error.

J. W. Sparks and John Patterson, for defendants in error.

ALBERT, C.

It is alleged in the petition, among other things, that the plaintiff sustained a fracture of the bones of his leg below the knee, and a dislocation of one of said bones, and that the defendants, at his instance and request, undertook, as physicians and surgeons, to treat and heal such injuries; that, because of the negligence and lack of skill on the part of the defendants, the ends of the broken bones were not properly brought together, and the dislocation was not reduced; that by reason of such omission the fractured bones failed to unite properly, leaving the plaintiff lame, and causing him great bodily pain. The answer admits the fracture of the bones as alleged in the petition, and that the defendants were employed as physicians and surgeons to reduce such fractures. All the other allegations of the petition are denied. The answer also charges contributory negligence. A trial resulted in a verdict for the defendants. Judgment accordingly. The plaintiff brings error.

On the trial the plaintiff offered in evidence an X-ray photograph of his injured leg, taken after his injuries had been treated by the defendants. It was objected to on the ground that a sufficient foundation had not been laid. The objection was sustained, and the ruling of the court in that behalf is now assigned as error. The defendants insist that the ruling of the court was right, because the competency of the person taking the photograph, the condition of the apparatus with which it was taken, and that the circumstances under which it was taken were such as to insure an accurate picture, had not been sufficiently shown in evidence. To show such matters is simply one way of establishing the accuracy of the picture. We do not understand that such way is exclusive. Before the photograph was last offered in evidence, the plaintiff had introduced evidence tending to prove all the material allegations of his petition. In addition, Dr. Arnold had testified, in effect, after showing his competency as an expert, that he had examined the injured leg by means of the X-ray, after it had been treated by the defendants, and found the fractures and dislocation alleged in the petition. His testimony tended to show that neither the fracture nor the dislocation had been properly reduced. He further testified that the photograph offered in evidence was a true representation of the position, location, and condition of the bones of the injured leg as they were at the time he made the examination. The testimony of Drs. Robinson and Hunt is to the same effect, save that the former ascertained the position, location, and condition of the bones by manipulation. The means employed by the latter to ascertain such facts do not appear. In view of this testimony, we do not deem it necessary to go into the question of the competency of the person who took the photograph, the condition of the apparatus by means of which it was taken, nor the circumstances under which it was taken. Such matters would be far less satisfactory evidence, to the ordinary mind, that the photograph was an accurate representation of what it was claimed to represent, than the testimony of witnesses who were competent to compare it with the original, and who had thus compared it. The defendants cited Bruce v. Beall (Tenn. Sup.) 41 S. W. 445, in which the court says: “It is not to be understood, however, that every photograph offered as taken by the cathode, or X-ray process, would be admissible. Its competency, to be first determined by the trial judge, depends upon the science, skill, experience, and intelligence of the party taking the picture and testifying with regard to it, and, lacking these important qualifications, it should...