Elzig v. Bales
| Decision Date | 03 July 1907 |
| Citation | 112 N.W. 540,135 Iowa 208 |
| Parties | G. A. ELZIG v. J. H. BALES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Hardin District Court.-- HON. J. R. WHITAKER, Judge.
ACTIONS for damages resulted in a verdict for plaintiff. The defendant appeals.-- Reversed.
Reversed.
Albrook & Lundy, for appellant.
W. L Weaver and M. J. Wade, for appellee.
OPINION
As plaintiff was driving along the highway, his team shied from a paper in the way, and one of them went into a ditch about six feet from the traveled road and some eighteen feet from the fence. The horses floundered, and in some manner plaintiff caught his foot in the wheel, and his leg and back were strained. This ditch had been excavated for tiling about two or three feet deep at that place, with dirt on both sides, though most of it had been thrown toward the fence. The defendant insists that the negligence in leaving the ditch unfilled was that of an independent contractor, and for this reason he is not liable. It is not material whether the engineer, who prepared the profile and data for the system of drainage, and the contractor, who excavated the ditches, laid the tile, and barely covered it, were independent contractors. The accident was not due to any negligence on their part. The ditch was left open precisely as it was to be left by these parties, and as defendant knew it would be; but the tenant in possession of the land to be drained, in consideration of the benefits anticipated from the improvement, had promised to haul the tiling, which he had done, and fill the ditch. He failed to comply with the latter part of the agreement. This, however, did not relieve the defendant from the duty of seeing to it that this was done. It is entirely immaterial whether the tenant was an independent contractor or not. The defendant had caused the excavation to be made in the highway, amounting to an obstruction prohibited by law, and he cannot relieve himself from liability for injuries occasioned thereby, by saying that he had employed some one to fill it, regardless of the nature of such employment, when this not only had not been done, but was never undertaken, save by the public authorities. The statute denounces a penalty against "any person who shall willfully obstruct or injure any public road or highway," and an excavation may prove quite as effective an impediment to the use of part of the road as some other obstacle to free passage. Independent of statute, having made the excavation, it was the duty of defendant to restore the road to a safe condition. Lewiston v. Booth, 3 Idaho 692 (34 P. 809); Canoe Creek v. McEniry, 23 Ill.App. 227; Temperance Hall Ass'n v. Giles, 33 N.J.L. 260; Runyon v. Bordine, 14 N.J.L. 472.
Of course, this does not preclude such obstructions as are essential to the improvement of abutting property, but these must be reasonably necessary for that purpose, and cannot be continued an unreasonable length of time. See Overhouser v. American Cereal Co., 118 Iowa 417, 92 N.W. 74; Perry v. Castner, 124 Iowa 386, 100 N.W. 84. Even if defendant had the right to cause the excavation, the jury might well have found that he was negligent in allowing it to continue open longer than was reasonably necessary. As he did not notify the road supervisors, sections 1964, 1965, and 1966 of the Code are not applicable.
II. Dr. Pagelson assisted in an operation on the defendant's leg at the hospital, and testified that the position of the bones of the kneejoint was normal, and was then asked: This was objected to, as not the best evidence, and the court ruled that it made no difference from what source the information came whether from an X--ray photograph, or otherwise, the doctor might testify without telling "the jury what he found on this photograph or on this negative." Substantially the same objection was overruled, and the doctor proceeded to answer, with the understanding that he might state what appeared in the skiagraph. How much of his testimony was based on his own examination of the patient does not appear, nor have we any means of knowing the portions which are merely descriptive of what the picture disclosed. The latter were not admissible, because not the best evidence attainable. Photographs are received as either secondary or demonstrative evidence, according to their use. Stewart v. Railway, 78 Minn. 110 (80 N.W. 855); Cunningham v. Railway, 72 Conn. 244 (43 A. 1047); Baustian v. Young, 152 Mo. 317 (53 S.W. 921, 75 Am. St. Rep. 462); Goldsboro v. Railway, 60 N.J.L. 49 (37 A. 433). As secondary evidence, the photograph represents the original, whether it be a writing, signature, or human face. As demonstrative evidence, they serve to explain or illustrate, and apply the testimony, and are aids to the jury in comprehending the questions in dispute. No argument is required to show that when taken for either purpose they are the best evidence of what appears on them. If the rule adopted by the trial court were to prevail, a physician might testify to the internal conditions of the human body without other information than that afforded by an unauthenticated skiagraph. That X-ray photographs, when properly verified, are admissible in evidence, is fully settled by the authorities. Mauch v. Hartford, 112 Wis. 40 (87 N.W. 816); Jameson v. Weld, 93 Me. 345 (45 A. 299); Bruce v. Beall, 99 Tenn. 303 (41 S.W. 445); Miller v. Dumon, 24 Wash. 648 (64 P. 804); De Forge v. Railway, 178 Mass. 59 (59 N.E. 669; 86 Am. St. Rep. 464); Geneva v. Burnett, 65 Neb. 464 (91 N.W. 275, 58 L. R. A. 287, 101 Am. St. Rep. 628); 17 Cyc. 420. The rule exacting the best evidence applies to the testimony of experts, as well as to that of other witnesses, and we are of the opinion that the court erred in permitting the doctor to testify to what appeared in the skiagraph.
III. The evidence left no doubt but that plaintiff suffered a serious injury. The knee and leg below were enlarged. The tissues above the knee had become soggy, so that upon being pressed with the finger a dent in the flesh remained for a time. The entire leg was darker than normal. The physicians testified that the swelling was caused by an obstruction of the venous circulation, probably located a little above the kneejoint. Two operations had been performed; the first proving merely exploratory, nothing abnormal being found in the tissues or bones. At the second operation, the semilunar cartilage, which acts as a cushion for the kneejoint, had become loose, and was removed. Dr. Pagelson testified that: ...
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