Huneycutt v. Cherokee Brick Co.

• Citation: 146 S.E. 227,196 N.C. 556
• Decision Date: 23 January 1929
• Docket Number: 470.
• Parties: HUNEYCUTT v. CHEROKEE BRICK CO.
• Court: United States State Supreme Court of North Carolina

146 S.E. 227

196 N.C. 556

HUNEYCUTT v. CHEROKEE BRICK CO.

No. 470.

Supreme Court of North Carolina

January 23, 1929

Appeal from Superior Court, Mecklenburg County; W. F. Harding Judge.

Action by J. E. Huneycutt, as administrator of the estate of Joseph H. Overby, deceased, against the Cherokee Brick Company. Judgment for plaintiff, and defendant appeals. New trial.

Admitting as substantive evidence photographs of machine which killed decedent held error.

The plaintiff is the duly qualified administrator of the estate of Jos. H. Overby.

The evidence tended to show that Jos. H. Overby was employed by the defendant at its brick plant as a brick burner, and that in the line of his duty he operated the brick machine. "When working at the mill he would either pull the clay up in the mill at this particular machine or run what they call the mud machine. The man who operated this particular machine would oil it when operating it. Whoever operated it kept it oiled. On the day of his death Jos. H. Overby was found in the gear wheels of the mud machine. His clothes were torn practically all off and he was practically torn in two. *** There was no guard over the gear at the time. One could have been placed over it."

There was no evidence tending to show how plaintiff's intestate was killed, but the plaintiff introduced in evidence paragraph (a) of the further answer and defense, which is as follows: "That deceased was so injured as a result of his oiling or undertaking to oil certain of the machinery in defendant's plant, and while the same was in motion."

Issues of negligence, contributory negligence, and damages were submitted to the jury, and answered in favor of plaintiff.

The jury awarded damages in the sum of $20,000.

From judgment upon the verdict, the defendant appealed.

Robert Ruark, Ruark & Fletcher, and J. W. Bailey, all of Raleigh (J F. Flowers, of Charlotte, of counsel), for appellant.

Hamilton C. Jones, of Charlotte, and James A. Lockhart (by Plummer Stewart), of Charlotte, for appellee.

BROGDEN J.

Certain photographs of the machine, upon which it was alleged the deceased was killed, and the surroundings and attachments thereof, were offered in evidence. There was evidence tending to show that these photographs correctly represented the machine and the surroundings, and they were received in evidence generally and as substantive evidence, over the objection of defendant.

The courts are not in accord upon the question of the admissibility of photographs. In this state, photographs taken two years or more after an injury, and where there was evidence of changes in the situation, were held inadmissible either as substantive evidence or otherwise. Hampton v Norfolk & W. R. Co., 120 N.C. 534, 27 S.E. 96, 35 L. R. A. 808.

Thereafter in Pickett v. Atlantic Coast Line R. Co., 153 N.C. 149, 69 S.E. 9, the rule with respect to the competency of photographs was thus expressed by Walker, J. "The court, over defendant's objection, permitted these...