Taylor v. Borough of Modena

• Decision Date: 01 April 1952
• Docket Number: 7869
• Citation: Taylor v. Borough of Modena, 87 A.2d 195, 370 Pa. 100 (Pa. 1952)
• Parties: TAYLOR v. BOROUGH OF MODENA.
• Court: Pennsylvania Supreme Court

87 A.2d 195

370 Pa. 100

TAYLOR v. BOROUGH OF MODENA.

No. 7869

Supreme Court of Pennsylvania

April 1, 1952

Argued January 9, 1952

Appeal, No. 4, Jan. T., 1952, from judgment of Court of Common Pleas of Chester County, May T., 1948, No. 4, in case of Cecil W. Taylor v. The Borough of Modena. Judgment affirmed.

Trespass for personal injuries. Before WINDLE, P.J.

Verdict for defendant and judgment thereon. Plaintiff appealed.

Judgment affirmed.

Carolus A. Wade, with him Wade, Wade & Wade, for appellant.

Lawrence E. MacElree, with him J. Paul MacElree, for appellee.

Before DREW, C.J., STERN, STEARNE, BELL, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. JUSTICE CHIDSEY

Plaintiff-appellant sought to recover for personal injuries suffered by him when he allegedly fell on a ridge of ice in the roadway of a street in the defendant borough on December 15, 1947. The plaintiff contended that the ice was caused by water from a spring located on the southern side of the street, which flowed across it in a northeasterly direction, fanning out near the north side of the street where plaintiff fell. The negligence of the defendant was predicated on the assertion that the borough had failed to remedy the condition of which it had actual as well as constructive notice.

A jury verdict was rendered for the defendant borough which contended that there was no ridge of ice and that plaintiff fell by reason of the general slippery condition caused by the weather on that day; that it was free of negligence and plaintiff was contributorily negligent.

Plaintiff filed a motion for a new trial on two grounds: first, that a photograph produced by him which was taken two months after the accident and which showed the course of the water was improperly excluded from the evidence; second, that a photograph offered by the defendant was erroneously admitted into evidence over plaintiff's objection. The motion for a new trial was refused and this appeal from the judgment entered on the verdict raises the same two questions.

The admission of photographs is a matter largely within the discretion of the trial judge: West v. Morgan et al., 345 Pa. 61, 63, 27 A.2d 46; Commonwealth v. Gibbs, 366 Pa. 182, 76 A.2d 608 Despite plaintiff's statement in his brief that he offered to prove that his photograph showed the same conditions as existed at the time of the accident, we find no offer in the record which can be so construed. Before a photograph is admissible it must be verified: Wigmore on Evidence (Third Edition) Vol. III, § 793.Such verification must be by someone who has sufficient knowledge to state that it fairly and truthfully represents the object or the place reproduced: Timlin v. Scranton et al. (No. 1), 139 Pa.Super. 503, 507, 12 A.2d 502. Since there was no verification by way of testimony or any offer of such verification, the photograph was properly excluded.

As to the admissibility of the defendant's photograph, President Judge WINDLE in his OPINION below adequately and correctly disposed of plaintiff's contention with respect thereto as follows: "Unlike in the offer of the photograph made by plaintiff above mentioned, it was testified by a witness whose testimony appeared to be entitled to credence that said picture fairly represented conditions existing at the time of the accident 'insofar as the highway was concerned', save for the substitution of the fence for the hedge above mentioned. Under those circumstances we find no abuse of discretion in its admission in evidence. As was said in Timlin v. Scranton, 139 Pa.Super. 503, 507, 'There is no more reason to exclude a pictorial expression of conditions than an oral description thereof. Of course, photographs must be verified, either by the testimony of the person who took them or by others with sufficient knowledge to state that they fairly and truthfully represent the object or place reproduced: Kutawich, 87 Pa.Super. 260, 262: Carney v. Pennsylvania Railroad Company, 63 Pa.Super. 138, 140. This test was met.' And not only was that test met here but the test that the object and place reproduced was in the same condition as at the time of the accident, except for one change specifically pointed out and readily capable of appreciation by the jury (Timlin v. Scranton, supra), was likewise met by the testimony of at least one witness familiar with the situation."

We are unable to sustain plaintiff's assignments of error.

Judgment affirmed.

DISSENTING OPINION

MR JUSTICE MUSMANNO

The accident which brought about this litigation occurred on December 15, 1947. At the trial, plaintiff's counsel offered to introduce a photograph marked Exhibit P-4 to show that water flowed across the street from a spring on the edge of the highway, the ice on which the plaintiff fell allegedly having formed from this water. The record shows the following: "Q. I show you a photograph marked Plaintiff's Exhibit P-4. Will you tell us what that picture represents. What is that a picture of? A. That is a picture of Brandywine Avenue, Modena, and definitely that is (indicating) Mr. Taylor's home. Q. Pointing to the right of the picture? A. Yes sir. Q. The photographer was standing on what side of the highway when that was taken? A. He was standing on the south side of the highway. Q. Where with respect to the fire hall? Can you tell? A. I would say he was standing on the west side of the fire house when he took that picture. Q. With respect to the ramp, the driveway that goes to the fire house -- A. That was to the fire house that housed the old apparatus, he was standing right alongside, the west side of the ramp, very close to it. Q. Can you tell us what that shows about the roadway? Mr. MacElree: Objected to. I would like to have an offer of the purpose for which the photograph is offered. Does it appear when they were taken? Mr. Wade: No.(The following occurred at side bar.) Mr. Wade: I offer to show the course the water took from the spring, across Brandywine Avenue in a northeasterly direction and coming out in front of the Taylor property and that the pictures were taken...