Parker v. C.A. Smith Lumber & Mfg. Co.

• Decision Date: 17 February 1914
• Citation: 138 P. 1061,70 Or. 41
• Parties: PARKER v. C. A. SMITH LUMBER & MFG. CO. ET AL.
• Court: Oregon Supreme Court

138 P. 1061

70 Or. 41

PARKER v. C. A. SMITH LUMBER & MFG. CO. ET AL.

Supreme Court of Oregon

February 17, 1914

Department 2.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by John A. Parker, administrator of the estate of George H Parker, against the C. A. Smith Lumber & Manufacturing Company and another. From a judgment for defendants plaintiff appeals. Affirmed.

I. N Smith, of Portland (Wm. T. Stoll and Hugh Barclay, both of Marshfield, on the brief), for appellant. John D. Goss, of Marshfield (J. C. Kendall, of Marshfield, on the brief), for respondents.

RAMSEY J.

The plaintiff, as administrator of the estate of George H Parker, deceased, who died intestate on the 19th day of August, 1912, from the effects of an injury received by him on the morning of August 18, 1912, in the city of Marshfield, brought this action to recover $7,500, as damages for the death of the decedent, claiming that his death was caused by the negligence of the defendants.

The defendant the C. A. Smith Lumber & Manufacturing Company is a corporation, and the defendant the City of Marshfield is a municipal corporation of this state.

The defendant the C. A. Smith Lumber & Manufacturing Company was engaged in the manufacture and sale of lumber, and in selling wood for fuel. Said company delivered the wood, by it sold, to its customers in said city, by "dumping" it in wagon load quantities on the sides of the streets in front of their dwelling houses.

South Broadway is one of the principal streets of Marshfield, and extends in a southerly direction from Central avenue to and beyond the place where said decedent was injured as stated infra. South Broadway is a public highway of said city, and is 80 feet wide, to a point where Ingersoll avenue intersects it; but from that point southerly said South Broadway has been opened and improved to the extent of only approximately 23 feet in width, and said improvement consists of planking the driveway and guard railings along the outer edges thereof, the said part of said street being approximately 23 feet wide. Algie Hanson resides on the east side of said portion of said street at No. 912 thereof. On the afternoon of August 17, 1912, at about 4 o'clock, the defendant company, at the request of said Algie Hanson, and for his use and benefit, as fuel, delivered to him, in front of his residence at No. 912, on the east side of said street, a load of short mill wood. Said load of wood (see evidence of Dr. Minigus) was dumped on the east side of said street. It was about 3 feet high, and about 10 or 12 feet long, north and south, extending to within 4 or 5 feet of the center of the street.

The complaint alleges, inter alia, that some time during the night of August 17th, or the morning of the 18th day of August, 1912, the said George H. Parker, deceased, while lawfully passing through said street in a southerly direction on a motorcycle, and while a dense fog and darkness were prevailing, ran into or over the said obstructions, or one of them, sustaining as a result thereof a fracture of his skull and other injuries from the effect of which he died some time during the forenoon of August 19, 1912. The complaint alleges, also, that the decedent was 28 years old, a skilled mechanic, and that he was of robust health and intellect, and industrious, thrifty, and of good habits. The complaint alleges, also, that the company defendant, after dumping said wood in the street, as stated supra, "wantonly, unlawfully, and negligently" allowed the said obstructions to remain in said street until after the morning of the 19th day of August, 1912, without placing any barrier, light, or danger signal of any kind on or around the same to warn or protect persons traveling on or passing through said street. The complaint alleges, also, that the said obstructions of said street by the defendant the C. A. Smith Lumber & Manufacturing Company, as aforesaid, was known, and by reasonably care should have been known, by the defendant city; but that the defendant city negligently failed and neglected to cause said obstructions to be removed, or to put or cause to be put any barrier, guard, light, or danger signal on, around, or about the same to warn or protect persons traveling on or passing through said street. The complaint demands a judgment against the defendants for damages in the sum of $7,500.

The defendants filed separate answers, denying the principal allegations of the complaint, and setting up affirmative matter. The city defendant alleged that it had no notice or knowledge of the placing of said wood in said street. Both defendants admitted that they placed no lights or guards at or about said wood. The defendant company admitted delivering said wood to Algie Hanson as above stated, but averred that it did so in accordance with an ordinance of said city duly authorizing the delivery of fuel in that manner.

Both defendants, by their answers, pleaded in substance, as a defense, that the plaintiff's intestate, George H. Parker, had knowledge of the fact that said wood was in said street at the time of said injury, and that said decedent, at the time of said accident, was in a state of gross intoxication, and incapable of properly managing, or controlling, or operating the said motorcycle upon which he was then and there riding, or of observing or avoiding obstructions, that said wood was plainly discernible at ample distance therefrom to enable a sober person to avoid collision therewith, and that said George H. Parker failed to observe the same by reason of his intoxication. Said answers allege, also, in substance, that the decedent was, at the time of the accident, traveling along the east side of said street, and was then and there operating said motorcycle at a high, unreasonable, reckless, and dangerous rate of speed, greater than 25 miles an hour, and was then and there approaching an intersecting street, and did not at said time have his motorcycle under control, and was then and there operating the same during the period of one hour after sunset to one hour before sunrise without displaying any light thereon, contrary to the provisions of chapter 174, Laws of Oregon for 1911. Said answers allege, also, that the deceased was traveling at the time of the accident at a greater rate of speed than 15 miles an hour, in violation of an ordinance of said city, etc. The affirmative matters of the answers were put in issue by replies.

A general verdict was returned for the defendants. The jury made, also, certain special findings which eliminate from consideration many of the questions referred to in the assignments of error.

1. Some time after the accident it is claimed by the plaintiff that the C. A. Smith Lumber & Manufacturing Company, by its vice president, A. Mereen, signed a certificate to the effect that George H. Parker, who had been in the employment of said company, died on August 19, 1912, "and that his death, or the accident causing it, was not attributable to the excessive use of intoxicating liquors or pre-existing infirmity." This certificate was made to enable the plaintiff to collect a policy of insurance on the life of the decedent. Before it was sent to the company, a photographic copy of it was made. This photographic copy was offered in evidence, and objected to as incompetent and irrelevant, and because the copy had not been properly proved, and because a proper foundation had not been laid for its admission; it being secondary evidence. Photographs stand on the same footing as diagrams, maps, plans, etc., and, when relevant to describe a person, a place, or a thing, photographs are admissible for the purpose of applying the evidence in a cause, and assisting the court or the jury to understand the facts. The photographs must be shown by extrinsic evidence to be true and faithful representations of the place or subject as it existed at the time involved in the controversy.

The photographs, however, need not be verified by the oath of the photographer who took them. The foundation for their introduction may be laid by the evidence of any one who can testify as to their correctness as a representation or likeness.

Whether a photograph is sufficiently verified or not is to be determined by the trial court, in the exercise of a sound discretion. 17 Cyc. pp. 414-416; Mow v. People, 31 Colo. 351, 72 P. 1069; Hall v. C. M. L. Y. Co., 76 Minn. 401, 79 N.W. 497; McGar v. Bristol, 71 Conn. 652, 42 A. 1000; Roosevelt Hospital v. New York El. R. Co., 21 N.Y.S. 205, 206; ^[1] New York S. & W. R. Co. v. Moore, 105 F. 725, 45 C. C. A. 21.

When a written instrument is admissible as evidence in a case, and cannot be produced, and a proper foundation is laid for the admission of a copy, a photographic copy of the instrument, shown to be a true copy by the person who took the photograph, or some other person who knows that it is a true copy, is admissible as secondary evidence. Jones on Evidence (2d Ed.) § 581; Duffin v. People, 107 Ill. 113, 47 Am. Rep. 431.

Jones on Evidence (2d Ed.) § 581, says: "It is a constant practice to receive as evidence pictures and drawings of objects which cannot be brought into court after these have been proved to be accurate representations of the subject. In like manner, photographs are aften admitted when the proper preliminary proof as to their exactness and accuracy is offered. Photographic copies have been received of the public documents on file at the government department at Washington which public policy requires should not be moved. On the same principle, the courts both of this country and of England have received photographic copies of instruments in the custody of other courts which could not be obtained for use at the...