Stewart v. St. Paul City Railway Company

• Decision Date: 17 November 1899
• Docket Number: 11,840 - (131)
• Citation: 80 N.W. 855,78 Minn. 110
• Parties: GEORGE STEWART v. ST. PAUL CITY RAILWAY COMPANY
• Court: Minnesota Supreme Court

80 N.W. 855

78 Minn. 110

GEORGE STEWART v. ST. PAUL CITY RAILWAY COMPANY

Nos. 11,840 - (131)

Supreme Court of Minnesota

November 17, 1899

Action in the district court for Ramsey county to recover $1,000 damages for loss of services and society of plaintiff's wife. The case was tried before Brill, J., and a jury, which rendered a verdict in favor of plaintiff for $250. The court refused to submit to the jury the following special questions:

"Did the car from which Mrs. Anna Stewart stepped at the time of this accident go so that the rear end of it was south of the point of the switch? If the jury answer the above question in the affirmative, then it will answer the following question How many feet south of the point of the switch was the rear end of the car when Mrs. Stewart stepped from it?"

From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

SYLLABUS

Street Railway -- Personal Injury -- Photograph of Locality.

In an action for personal injuries caused by the alleged negligence of the defendant in stopping its car for a passenger to alight at an unsafe place, the principal issue being the distance from the car steps to a hole in the street, the defendant, after the hole had been filled, and about eight months after the accident occurred, placed the car where it claimed it stood at the time of the accident, and a crowbar where it claimed the hole had been, and then caused a photograph of the surroundings to be taken. Upon the trial the defendant offered the photograph in evidence, accompanied by an offer to prove that the car stood about where it stood when the accident occurred, and that the crowbar correctly indicated the location of the hole. Held, that there was no error in refusing to admit the photograph in evidence.

Munn & Thygeson and Hugh T. Halbert, for appellant.

The court erred in excluding the photograph and the testimony which showed its accuracy. Beardslee v. Columbia, 188 Pa. St. 496; Dederichs v. Salt Lake, 14 Utah 137; Barker v. Town, 67 Iowa 146; Archer v. New York, 106 N.Y. 589; Church v. City, 31 Wis 512; Bruce v. Beall, 99 Tenn. 303; Cooper v. St. Paul City Ry. Co., 54 Minn. 379. On the general subject see 31 Cent. L.J. 416; Alberti v. New York, 118 N.Y. 77; Dyson v. New York, 57 Conn. 9; Warner v. Village, 18 App.Div. (N.Y.) 458; People v. Buddensieck, 103 N.Y. 487; Marcy v. Barnes, 16 Gray, 161; Randall v. Chase, 133 Mass. 210; Locke v. Sioux City, 46 Iowa 109; Udderzook v. Com., 76 Pa. St. 340; Ruloff v. People, 45 N.Y. 213.

S. P. Crosby, for respondent.

The photograph was inadmissible. State v. Holden, 42 Minn. 350; Cooper v. St. Paul City Ry. Co., 54 Minn. 383; 31 Cent. L.J. 414.

OPINION

MITCHELI, J.

The plaintiff is the husband of the plaintiff in the action of Stewart v. St. Paul City Ry. Co., supra, page 85; and this action was brought to recover damages for loss of the society, services, etc., of his wife, resulting from the same injuries which were the subject of the other action. The opinion in the other case disposes of all the points raised on this appeal, except two.

In this action, as in the former, the chief contest was over the distance and direction of the hole, into which the wife stepped, from the steps of the car from which she alighted. Very soon after the accident occurred this hole was filled up, but, as the evidence tended to prove, its location was still capable of identification. About eight months after the accident the defendant took the same car out to the locus in quo, and placed it, as is claimed, in the same place where it stood at the time of the accident, placed a crowbar in a vertical position where the hole was claimed to have been and then caused a photograph to be taken, showing the car steps and the crowbar. This photograph was offered in evidence, accompanied by offers to prove that the crowbar was placed where the witness had found the hole immediately after the accident, and that when the photograph was taken the car was standing six feet from the point of the switch referred to in the evidence, and that the photograph was a correct representation of the surroundings. The evidence previously introduced tended to show that at the time of the accident the car stood six or seven feet from the point of the switch. The court excluded the...