Lupton v. Southern Exp. Co.

• Decision Date: 20 October 1915
• Docket Number: 185.
• Citation: 86 S.E. 614,169 N.C. 671
• Parties: LUPTON v. SOUTHERN EXPRESS CO.
• Court: North Carolina Supreme Court

86 S.E. 614

169 N.C. 671

LUPTON v. SOUTHERN EXPRESS CO.

No. 185.

Supreme Court of North Carolina

October 20, 1915

Appeal from Superior Court, Carteret County; Connor, Judge.

Action by George A. Lupton against the Southern Express Company. Judgment for plaintiff, and defendant appeals. No error.

In an action for personal injury to plaintiff's foot, X-ray photographs taken by expert showing break in bone held admissible.

This is an action to recover damages for personal injury. The plaintiff introduced evidence tending to prove that while on the platform of the railroad company at Newbern, for the purpose of taking passage on the train, an agent and employé of the defendant negligently ran a heavy truck against him striking him violently in the back, causing him to fall, and the truck passed over one of his feet, to his serious injury. The defendant introduced evidence tending to prove that there was no negligence; that the plaintiff was standing on the platform holding to a post; and that as the truck passed him his foot slipped and went under the truck.

Dr Pollock, a witness for plaintiff, testified:

"I am a doctor of medicine (admitted to be an expert). Have had some experience in X-ray work. Took X-ray photograph of Lupton's foot, as shown by plates in my hands. Took photographs of his right foot. No injury there. Also of left foot. (Shows plates to the jury. Defendant objects overruled. Defendant excepts.) Photograph of left foot shows that bone of fourth toe of foot has been broken. Plate shows callous formed at broken place. This callous would cause pain and is permanent. Pain caused by callous on bone of fourth toe rubbing against bone of third toe. Friction sets up inflammation and causes pain.

Cross-examination Plate does not show injury to big toe, nor whether injury to fourth toe was done in childhood or not. I did not examine or photograph Lupton's back. Know Dr. Primrose. He would possibly know after examination whether bones were broken or not. Callous does not necessarily form on both sides of broken bone. X-ray is only sure way, except by operation, to ascertain whether bones are broken or not."

At the conclusion of the evidence there was a motion for judgment of nonsuit, which was overruled, and the defendant excepted.

The court charged the jury, among other things, as follows:

"In this case counsel for plaintiff and defendant during their argument to you have admitted that George A. Lupton, the plaintiff, while standing at or near the shed of the Norfolk-Southern Railroad Company at Newbern, was struck by a truck being moved by employés of the defendant, the Southern Express Company; that while engaged in conversation with Mr. Bell, to whom he had just paid a bill, and while putting his pocketbook into his pocket, the truck struck him."

Defendant excepted.

There was a verdict and judgment for the plaintiff, and the defendant excepted and appealed.

Julius F. Duncan, of Beaufort, for appellant.

C. R. Wheatley and Abernethy & Davis, all of Beaufort, for appellee.

ALLEN, J. (after stating the facts as above).

There is no objection to the description of the injury as disclosed by the X-ray plates. The exception is only to the exhibition of the plates to the jury, and, as there is nothing to show any variance between the plates and the description given by the witness, we might dispose of the exception upon the ground that the ruling permitting the jury to see the plates, if erroneous, is harmless. We are, however, of opinion that it was competent to introduce the plates and to permit the jury to see them.

What was said in Frank v. Bank, 37 N.Y. Super. Ct. 34, which is approved in Bank v. McArthur, 165 N.C. 374, 81 S.E. 327, in reference to the microscope, is equally pertinent as applied to the X-ray:

"The administration of justice profits by the progress of science, and its history shows it to have been almost the earliest in antagonism to popular delusions and superstitions. The revelations of the microscope are constantly resorted to in protection of individual and public interests. It is difficult to conceive of any reason why, in a court of justice, a different rule of evidence should exist in respect to the magnified image presented in the lens of the photographer's camera and permanently delineated upon the sensitive paper. Either may be distorted or erroneous through imperfect instruments or manipulation, but that would be apparent or easily proved. If they are relied upon as agencies for accurate mathematical results in mensuration and astronomy, there is no reason why they should be deemed unreliable in matters of evidence. Whenever what they disclose can aid or elucidate the just determination of legal controversies, there can be no well-formed objection to resorting to them."

It has been held in several cases in our reports that the ordinary photograph, when shown to be a true representation and taken under proper safeguards, is admissible in evidence ( Davis v. Railroad Co., 136 N.C. 115, 48 S.E. 591, 1 Ann. Cas. 214; Pickett v. Railroad, 153 N.C. 148, 69 S.E. 8), and the same rule prevails as to photographs taken by the X-ray process.

"While a picture produced by an X-ray cannot be verified as a true representation of the subject in the same way that a picture made by a camera can be, the rule in regard to the use of ordinary photographs on the trial of a cause applies to photographs of the internal structure and conditions of the human body taken by the aid of X-ray when verified by proof that they are a true representation. It has been held that, 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; but where it has been shown by the evidence of competent witnesses that it truly represents the object it is claimed to represent, there is sufficient foundation for its admission." 17 Cyc. 420.

"Photographs taken by X-ray process are admissible upon the same principles under similar circumstances with like effect as ordinary photographs." 9 Ency. Ev. 775.

"The accuracy of a properly taken X-ray photograph of the bones of a living body will be judicially known." 1 Chamb. Mod. Ev. § 729.

"The process of X-ray photography is now as well established as a recognized method of securing a reliable representation of the bones of the human body, although they are hidden from direct view by the surrounding flesh, and of metallic or other solid substances which may be imbedded in the flesh, as was photography as a means of securing a representation of things which might be directly observed by the unaided eye at the time when photography was first given judicial sanction as a means of disclosing facts of observation; and for that purpose X-ray photographs, or sciagraphs, or radiographs, as they are variously called, have been held admissible on the same basis as photographs. Bruce v. Beall, 99 Tenn. 303, 41 S.W. 445; Miller v. Dumon, 24 Wash. 648, 64 P. 804; Chicago, etc., Electric R. Co. v. Spence, 213 Ill. 220, 72 N.E. 796 ; Carlson v. Benton, 66 Neb. 486, 92 N.W. 600, 1 Ann. Cas. 159; Geneva v. Burnett, 65 Neb. 464, 91 N.W. 275, 58 L. R. A. 287, 101 Am. St. Rep. 628; 1 Wigmore, Evidence, pars. 795-797. As is said in Mauch v. Hartford, 112 Wis. 40, 87 N.W. 816: 'It is the duty of courts to use every means for discovering the truth reasonably calculated to aid in that regard. In the performance of that duty every new discovery, when it shall have passed beyond the experimental stage, must necessarily be treated as a new aid in the administration of justice in the field covered by it. In that view courts have shown...