Dederichs v. Salt Lake City Railroad Co.

• Decision Date: 12 October 1896
• Docket Number: 742
• Citation: 46 P. 656,14 Utah 137
• Court: Utah Supreme Court
• Parties: JOSEPH DEDERICHS, RESPONDENT, v. SALT LAKE CITY RAILROAD COMPANY, APPELLANT

46 P. 656

14 Utah 137

JOSEPH DEDERICHS, RESPONDENT, v. SALT LAKE CITY RAILROAD COMPANY, APPELLANT

No. 742

Supreme Court of Utah

October 12, 1896

Appeal from the Third district court, Salt Lake county. Hon. John A Street, Judge.

Action by Joseph Dederichs against the Salt Lake City Railroad Company for damages sustained by plaintiff while crossing defendant's track. From a judgment for plaintiff defendant appeals. Reversed. The case was before this court earlier in the year, and is reported in 13 Utah 34.

Judgment set aside vacated, and a new trial granted.

Rawlins & Critchlow, for appellant.

Richard B. Shepard, A. N. Cherry, and H. O. Shepard, for respondent.

The evidence shows that the collision occurred on the first day of October, 1891, when the trees were in full leaf, and that the photographs were taken on April 6, 1895, when the trees were barren of leaves. It is plain that the photos do not show the point of collision, or in fact any part of the four corners of the streets where the collision occurred. We contend that they were inadmissible in evidence for these reasons, viz.: First. There was no evidence that the place photographed was in the same condition as when the collision occurred. Second. They were taken three years afterwards. Third. They do not show the point of collision. Fourth. The trees were not in the same condition necessarily as to leaf and size as when the collision occurred. They are immaterial as evidence, for the reason that they show only the row of trees on the north side of Second South and east of Eighth East streets, and were undoubtedly introduced for that purpose, while under the facts in this case it became immaterial whether there were any trees there or not, as the question of the negligence of the parties was confined ultimately to that part of Second South street after Dederichs passed the trees in question, and had no reference to the trees shown in the photos at all.

Counsel cite authorities supporting the admission of these photos but they are not in point under the facts in this case or the law stated in said authorities, for in them the locus in quo was shown, in the case at bar the photos do not show the locus in quo, i. e., the point of collision.

Some courts have admitted photos in evidence, while others have refused them for the reason that they do not show the truth for, like an expert witness, they are always favorable to the side that takes, pays for, and uses them.

In the Tichborne trial, a photo was introduced to show a grotto, or rather a cave, and a very private cave at that, but when the Chief Justice and Justice Lush visited the spot upon which the camera that had produced the photo had been focused, they found not a cave or grotto, but a public highway only. Green Bag, vol. 5, p. 61.

Mr Irving Browne, in an article in volume 5 of the Green Bag, page 62, says that "Photographs can and do lie and be bad enough to bring a blush to the cheek of the worthiest disciple of Ananias." Mr. Browne does not say that all photos do not show the true status of the view presented, but says that by using lenses of different angles almost any picture desired can be produced, so that it will represent or misrepresent the scene at the will of the operating artist. There is no contention on our part that these views do not correctly represent what they purport to, as of date of April 6, 1895, but we do contend that they do not represent the situation on October 1, 1891, and that there is no evidence that shows that they do. Consequently they were inadmissible in evidence.

Counsel say that they were admissible for this reason: that they would show the negligence of plaintiff at the time of the collision, or just before. We ask, why? When they do not show the point of collision, nor within seventy-five feet of it. Then we ask again, can it be said they were competent for this reason? Surely it will not be seriously contended by counsel that they were or are. They were incompetent as evidence, for the reasons we have given. But if competent for any purpose the refusal to admit them is not reversible error, for the reason that the defendant was not deprived of any substantial right by the court's refusal to admit them as evidence. If any error was committed it was an immaterial error of not sufficient importance to reverse the case, as the error was, in any view taken of it, of a harmless nature.

Defendant on page 9 of its brief, has cited eight authorities to support the proposition that the photos should have been admitted in evidence. As regards these citations, would say that not one of them supports its contention in fact or by inference, as the court will readily see by an inspection of them, for the reason that in each case cited, the photos were taken of the point of collision or the point in question, and were proven to be correct; while in the case...