O'Neil v. Potts

• Decision Date: 16 July 1915
• Docket Number: 19,269 - (184)
• Citation: 153 N.W. 856,130 Minn. 353
• Parties: ALBERT O'NEIL v. CHARLES P. POTTS; ROSE O'NEIL v. CHARLES P. POTTS
• Court: Minnesota Supreme Court

153 N.W. 856

130 Minn. 353

ALBERT O'NEIL v. CHARLES P. POTTS;

ROSE O'NEIL v. CHARLES P. POTTS

Nos. 19,269 - (184)

Supreme Court of Minnesota

July 16, 1915

Two actions in the district court for Ramsey county, one by Albert O'Neil to recover $3,500 for personal injury of his wife and deprivation of her society and services, and the other by Rose O'Neil to recover $5,000 for her own injuries. The case was tried before Johnson, J., and a jury which found a verdict in each case in favor of defendant. From the order denying their motions for a new trial plaintiffs appealed. Affirmed.

SYLLABUS

Photograph in evidence.

1. Strasser v. Stabeck, 112 Minn. 90, followed to the effect that a photograph will be admitted, when properly verified, to illustrate or express the testimony of a competent witness, but it is not original evidence.

Evidence of custom.

2. The admission of evidence, tending to show a practice among automobile drivers of signaling to cars behind them before stopping, held not prejudicial error. Failure to conform to the practice was merely evidence tending to show want of ordinary care.

Durment Moore & Oppenheimer, for appellants.

O'Brien, Young & Stone, for respondent.

OPINION

SCHALLER, J.

On October 12, 1913, defendant was driving his auto, containing his wife, another lady and one Gustafson, along Minnehaha Parkway. Plaintiff Rose O'Neil was driving a car in the same direction. She passed defendant, turned into the road in front of him and, without warning, stopped her car. Defendant's car struck the rear of the O'Neil car, damaging it somewhat and causing the injuries to plaintiff Rose O'Neil complained of.

The complaint alleged negligence; the answer denied this and set up contributory negligence. The cases were tried together and in each case a verdict was rendered for defendant. Plaintiff in each case moved for a new trial and appeals from the order denying the same.

The assignments of error present two principal questions: (a) That two photographs were improperly admitted in evidence; (b) that evidence tending to prove a certain custom of the road was erroneously received.

1. "A photograph, like a map or diagram, is merely a witness's pictured expression of the data observed by him and therein communicated to the tribunal more accurately than by words. Its use for this purpose is sanctioned beyond question." 1 Wigmore, Ev. § 792.

"The rule governing the admission in evidence of an official map, plat, model, or photograph is well settled. They are admitted, when properly verified, to illustrate or express the testimony of a competent witness, but are not original evidence. State v. Shevlin-Carpenter Co. 66 Minn. 217, 68 N.W. 973; Hall v. Connecticut Mutual Life Ins. Co. 76 Minn. 401, 79 N.W. 497; Stewart v. St. Paul City Ry. Co. 78 Minn. 110, 80 N.W. 855. 'The use of maps * * * as testimony to the objects represented rests fundamentally on the theory that they are the pictorial communications of a qualified witness, who uses this method of communication, instead of or in addition to some other method. It follows, then, that the map * * * must first, to be admissible, be made a part of some qualified person's testimony. Some one must stand forth as its testimonial sponsor; in other words, it must be verified.' 1 Wigmore, Ev. § 793. Where, in such cases, there is evidence fairly tending to establish such verification, the sufficiency of the evidence is a question addressed to the discretion of the trial judge, and his decision will not be reversed, except for an abuse of the discretion." Strasser v. Stabeck, 112 Minn. 90, 92, 127 N.W. 384.

"Was it for the court to say that the photographs were not true representations, or that they were misleading? The photographer was called as a witness and testified that the photographs were correct representations, after making due allowance for the enlargement of objects close to the lens. We think that it was for the jury and not for the court to say whether the photographs lied, just as it was for the jury and not for the court to decide upon the credibility of any witness. We concur in the statement made by Professor Wigmore on the subject. 1 Wigmore, Evidence, § 792." Mitton v. Cargill Ele. Co. 124 Minn. 65, 144 N.W. 434.

The plaintiff testified, in relation to the photograph (Exhibit 1), that he was present when it was taken; that it is a correct photograph of the road at the place where the accident happened; that it was taken about 11 months after the accident; that the conditions were the same except that a certain house and the walk leading to it had been built since the accident; that the car shown in the photograph was his car; that it was placed as nearly as his recollection would then serve at the point where Mrs. O'Neil's car was at the time of the accident; that the photograph represented correctly the road conditions at that point except that the photograph showed the road light and that the road is really darker, an oiled road, and that the photograph was not taken at his request or under his instructions. It also appeared that the photograph was taken under the direction of defendant's counsel.

Objection was made to the admission of the photograph that it was too remote. The court did not rule upon the objection, but suggested that it would have to be shown that the conditions were the same when the picture was taken as they were at the time of the collision.

Testimony was then offered, tending to show that conditions had not changed except as to the house and walk. The offer was then submitted and the court received the exhibit in evidence.

Thereupon plaintiff cross-examined the witness, who testified that he absolutely knew that the roadway was in the same condition as at the time of the accident; that the photograph did not show passing vehicles and that the house and sidewalk had been built since the accident.

Objection was again made that it was too remote and not the same condition. The court received the exhibit.

On redirect examination, another photograph, showing the same road and two automobiles, was produced and offered in evidence; it having been shown that plaintiff's car shown therein was in the same position as in Exhibit 1, and that the other car shown was coming from the west; that the roadway shown was in the same condition as to width as it was at the time of the accident, and that Exhibit 2 showed the location of the accident.

On cross-examination by plaintiff, defendant was asked: "What was the purpose of taking this last picture" (Exhibit 2)? and after argument the witness answered: "To place the machines relatively about where we thought they were."

Defendant's counsel stated that Exhibit...