Hampton v. Norfolk & W.R. Co.
| Decision Date | 20 April 1897 |
| Citation | 27 S.E. 96,120 N.C. 534 |
| Parties | HAMPTON v. NORFOLK & W. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Forsyth county; Green, Judge.
Action by G. D. Hampton against the Norfolk & Western Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.
An exception to a charge which does not specify the ground of objection is too general to be considered.
Watson & Buxton, for appellant.
J. S Grogan and A. E. Holton, for appellee.
This is an action for damages against the defendant. The complaint states that the injury complained of was received in 1894 but it does not appear from the evidence whether it was in 1894 or 1895. The defendant's road runs through the city of Winston, along Tenth street, which had been excavated to a depth of about 30 feet at the point where the injury was received. It is in evidence that the plaintiff, on the night of the injury, went to Watlington's store, which fronts on Liberty street, and purchased about 60 pounds of groceries, put them in a bag, and started home, and by some means missed his way. The night being dark, he fell into this deep cut, and received the injury complained of. It appears that the rear end of Watlington's store is about 30 feet from Tenth street, but the plaintiff testified that he had gone about 150 yards before he fell into the cut, thus traveling nearly parallel with defendant's road. He also testified that he struck a path after leaving the store, which he followed until he fell into the cut; that it was so dark he could not see the path, but he could feel it, so as to know he was in a path. The plaintiff alleged that the injury was caused by the defendant's negligence in not fencing, and keeping fenced, this deep and dangerous cut in a city like Winston; while the defendant alleged that it was a back lot where the plaintiff fell, fenced on the front by the owner, and that the defendant was guilty of no negligence in not fencing it. The defendant also denied that there was any path running through said lot, as the plaintiff had testified. Upon these points there was much evidence on both sides. Watlington and others testified that there was no fence, and Watlington also testified that he had usually kept some empty barrels standing along the street, to prevent persons going from the store back to the defendant's road, but he had sold them a short time before, and the way was open from Liberty street back to defendant's road. B. F. Copple, J. W. Stout, A. H. Gilliam, and Watlington testified that there was a path, as testified to by the plaintiff; while A. W. Morton and F. A. Nading testified that they lived near by, and "never knew of any passway," etc.; and L. Norvell, and probably others, testified that there was a wire fence at Watlington's store at the time of the injury.
Without undertaking to give all the evidence, we have stated it sufficiently to present the contention of the parties. The defendant offered a map on the trial, made by one of the defendant's employés, which was allowed to be used without objection, though it was made by defendant's employés, and not under order of court. The defendant also, during the trial, offered in evidence a photograph, which was objected to, and the defendant introduced A. J. Farrell, who testified: Ruled out, and the defendant excepted. This trial took place in February of this year (1897), and there is evidence showing that there have been changes made in the fencing since the injury was received, and that the defendant has since inclosed this cut. This is the only exception taken during the trial. But the defendant asked several written instructions, which were not given; and the defendant, after appealing from the judgment in favor of the plaintiff, assigns the following grounds of error: (1) "The refusal of his honor to allow the photographs offered to be used as evidence." (2) "The refusal of his honor to give the special instructions prayed for by the defendant." (3) "The instructions as given were calculated to mislead the jury, and are erroneous in law."
Neither of these assignments can be sustained. The photographs were not evidence per se. They did not represent the plaintiff, the fall, or the injury. At most, they could only supply the place of an unauthorized map, which is not evidence, and which the court may refuse to allow in evidence. Burwell v. Sneed, 104 N.C. 120, 10 S.E. 152. And, when such maps are allowed, they are not evidence, and can only be used by a witness to explain his evidence to the jury. Dobson v. Whisenhant, 101 N.C. 647, 8 S.E. 126. There was no such purpose as this manifested in this case. It seems to have been the idea of the defendant that they were of themselves substantive evidence. If we are in error in this, it is because the defendant has failed to make manifest anything to the contrary. We have no doubt but what a photograph taken soon after the occurrence might be used, as an unauthorized map may be used. Riddle v. Town of Germanton, 117 N.C. 387, 23 S.E. 332. But where it appeared to the court that the photograph had been taken two years or more after the injury was received, and where there was evidence of changes in the situation, and where it was material to establish a path (as in this case) as existing two years ago, but which was necessarily effaced by the lapse of time, the ground soon after the injury was received having been fenced up, and the defendant having the use of a map of its own make, which was shown to have been made soon after the plaintiff was injured, it seems to us to have been altogether proper to exclude the photograph, whether introduced as original independent evidence or as an unauthorized map.
The second assignment cannot be sustained. These prayers are long, confused, and argumentative, each containing some proposition that the court could not properly give. State v. Neal (at this term) 27 S.E. 81; Railway Co. v. Wainwright (Ga.) 25 S.E. 622.
The third assignment is what is termed a "broadside exception" to the charge, without pointing any error, and cannot be sustained. This has been so often decided by this court that it seems to us, if the learned counsel had thought there was error in the charge, they would have complied with this oft-repeated rule. Barcello v. Hapgood, 118 N.C. 712, 24 S.E. 124; State v. Downs, 118 N.C. 1242, 24 S.E. 531; McKinnon v. Morrison, 104 N.C. 354, 10 S.E. 513, and cases cited in Clark's Code (2d Ed.) pp. 382, 383. There is no error, and the judgment is affirmed.
A "photograph of the place of accident was offered, but ruled out, and the defendant excepted." The photographer testifies that the views were correct, and taken from three different standpoints. Another witness (Thomas) testified "There is very little change in the ground from the time of the accident." This is the first time this point has been presented in this court, but it has often arisen elsewhere, and the decisions have been quite uniform in admitting such evidence. The nature of the locality was a material point in the trial. The testimony of many witnesses was offered for the purpose of conveying to the minds of the jury a picture of the locus in quo. This necessarily conveyed to them an idea of it which was more or less imperfect. A plat made by one of the parties was admitted. This was competent as an aid to making clearer the testimony of the party offering it. Justice v. Luther, 94 N.C. 793; Dobson v. Whisenhant, 101 N.C. 645, 8 S.E. 126. A map not made under the order of the court is really only the declaration, so to speak, of the party making it. Its reliability depends entirely upon his accuracy and conscientiousness, and is therefore only admissible as his evidence, and because it may convey to the eyes of the jury somewhat more accurately the description which the witness was endeavoring to convey to their ears by his oral testimony. In many instances a photograph will be a greater assistance to a jury than a plat. It is a picture of the place made automatically, the spot being reflected as in a mirror, and the image chemically made permanent. If the jury could go out to view the spot in all cases where the nature of the locality is material, as in this, they would get a much more accurate idea than the language of any witness, however graphic, could convey to them. There are a vast number of cases in which photographs would greatly aid a jury which is unable to view the spot or subject-matter, because changed or too inconvenient to visit. Whether the jury should be permitted to view the place of the accident or crime Jenkins v. Railroad, 110 N.C. 438, 15 S.E. 193. A photograph offers nearly every advantage which could be obtained by a visit of the jury to the spot, and is without the objections to a "jury of view," which are that it is frequently impracticable, owing to the distance of the locality, loss of time, and expense, besides the opportunity of irregularity in the conduct of the jury. The photograph brings the spot to the jury, and in many cases a stereopticon has been used in the court room to enlarge the picture; a more correct and vivid idea being thus conveyed to the minds of the jury than could be done by any language of witnesses,...
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