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Nies v. Broadhead

58 N.Y. St. Rep. 677 Court N.Y. Gen. Term Decision date 1894-01-18 English

Delivered by Dwight, P. J.

Contents

Majority

p. 677
Edward H. Nies, Resp’t, v. Calvin E. Broadhead et al., App’lts.
(Supreme Court, General Term, Fifth Department,
Filed January 18, 1894.)

Headnote

1. Evidence—Photographs.
Photographs of locality may be verified by any eye-witness, as well as the photographer, in order to their competency as evidence.
2. Trial—Striking out testimony.
The fact that the answer is not strictly responsive to the question on direct examination does not, necessarily, entitle the party, against whom the testimony is given, to have it stricken out.
Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.
lí. G. Danforth, for app’lts; E. Van Voorhis, for resp’t.

The action was for a bodily injury sustained by the plaintiff in being thrown from or in his buggy down a high bank by the side of a temporary road constructed by the defendants to avoid a deep cut by which they had intersected the highway in the construction of a railroad. The motion for a new trial purported to be made “ on all the grounds set forth in § 999 of the Code of Civil Procedure,” but the only ground which seems to have been argued below was an exception to the admission in evidence of several photographs of the locus of the accident, taken

p. 678
from different points of view ; and that is the principal .question made on this appeal. The proofs preliminary to the introduction of the photographs showed that they were taken by a photographer about six weeks after the accident, and that the road and its surroundings had not been changed in the mean time in any substantial particular; and the plaintiff, who accompanied the photographer, and who had himself, after that time, some experience in taking photographs, testified that each of the pictures was a correct representation of the scene, from the point of view of each, at the time it was taken. This testimony was not contradicted. Some time after the protographs were proved, as above stated, and marked for identification, they were offered in evidence by counsel for the plaintiff, whereupon, as we read from the record, counsel for the defendants objected to the evidence “ as incompetent; that there were changes between the time the accident occurred and the time the photographs were taken, and they are not proved by the photographer who took them to be accurate.” The objection was overruled, and the defendants excepted. We think the exception was not well taken. It will be seen that the only real ground of the objection stated was that the photographer was not called to testify to the accuracy of the pictures. It is true that the photographer is often called, and it is very proper that he should be, to answer particular questions, if desired, in respect to his work ; but it is not apparent that he is any more competent-to speak of the accuracy of the picture—that is, we suppose, the correctness of the representation—than any other eyewitness of equally correct vision and powers of observation, and equally interested to observe, the features of the scene depicted. There is no case, we believe, in which the verification of the photographer has been held essential to the competency of the picture as evidence, and there are several cases in which the pictures have been admitted without such verification. Roosevelt Hospital v. New York El. R. R. Co., 21 N. Y. Supp. 205 ; 50 St. Rep. 456 ; Archer v. Railroad Co., 106 N. Y. 589 ; Alberti v. N. Y., L. E. & W. Railroad Co., 118 N. Y. 77 ; 27 St. Rep. 865 . In Blair v. Pelham, 118 Mass. 420 , it was held, in an opinion by Gray, O. J., that the photograph must be verified by proof that it was a true representation of the subject; not that such proof must be made by the photographer, but, on the contrary, that the question whether it was sufficiently verified was a preliminary question of fact for the court, and its decision was not subject to exception. It seems to be clear that the objection in this case on the ground stated was not tenable, and was properly overruled. We are unable to see that there was any just ground for the objection to the admission of the photographs in this case. It is undoubtedly true that photography has come to be recognized as a most efficient aid in investigations, the subjects of which cannot themselves be brought into court; and nowhere, as we think, have the principles upon which such aid is received been more correctly set forth than by the supreme court of Pennsylvania in 1874, in the case of Udderzook v. Com., 76 Pa. St. 340 , where that court said:
“ It is evident that the competency of the evidence in such cases
p. 679
depends upon the reliability of the photograph as a work of art, and this, as in the case before us, in which no proof was made by experts of this reliability, must depend upon the judicial cognizance we may take of photographs as an established means of producing a correct likeness. The Daguerrean process was first given to the world in 1839. It was soon followed by photography, of which we have had nearly a generation’s experience. It has become a customary and a common mode of taking and preserving views as well as the likeness of persons, and has obtained universal assent as to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate, made by the rays of light, through the camera, are dependent on the same general laws which produce the images of outward forms on the retina through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likeness.”

Much to the same purpose was the remark of our own court of .appeals in the case of Cowley v. People, 83 N. Y., 464 :

“We do nor fail to notice, and we may notice judicially, that all civilized communities rely upon photographic pictures for taking and preserving resemblances of persons and animals, of scenery and natural objects, of buildings and other artificial objects.”

We may add that we have examined the original photographs in this case, which are in the record before us, and find—as, no doubt, the judge in the circuit found—that they bear evidence on their face of the correctness of their representation of the scenes depicted in clearness of delineation, sharpness of outline, correct perspective, and in the just proportion between the various objects depicted. We have no doubt of the competency or of the usefulness of the evidence in question.

The only other exception mentioned in the argument of counsel for the defendants on this appeal was to the refusal of the court to strike out an answer of one of the physicians as not responsive to the question put to him. The question was: “ Will you state the character of the injury which Mr. Nies received more particularly ? ” The answer was: “A. He had, as I term it, concussion of the spine; and that, if you will allow me to, I will explain to the jury, as well as I can, what follows from that. It is considered by competent medical authority that an injury of that character that don’t immediately make marked improvement, and lead on to a complete cure in a few months, never gets well. In other words, after a patient has passed twelve months without marked bettering of his condition, it shows or argues that there is structural change in the chord there, and it will be permanent.” Defendants’ counsel asked to have the answer stricken out as not responsive. The motion was denied, and the defendants excepted. The fact that the answer of a witness is not strictly responsive to the question on direct examination does not, necessarily, entitle the party against whom the evidence is given to have it stricken out. Ón the contrary, if the evidence embraced

p. 680
in the answer is in itself competent, and such as might be properly deduced by another question, it is in the discretion of the court to let the answer stand; the only ground for striking out being that improper evidence has been put into the case in answer to a proper question, and so without affording an opportunity to the other side to object to its introduction. In this case there was no objection to the evidence on the ground of incompetency, and, if there had been, we think it would have been untenable. It was, no doubt, competent for the plaintiff to give evidence of the probable duration of the injury which he had received, and w'hether it was likely to be permanent. Indeed, these are characteristics of an injury or disease, and were, therefore, in a manner, called for by the question by which the witness was asked to state the character of the injury. There seems to be nothing improper about the answer except the form of the expression, “it is considered by medical authority,” and this was only another form of stating what the science of medicine teaches on the point in question. There seems to be no error in the refusal to strike out, and, as no further complaint of error" is made on this appeal, the judgment and order appealed from should be affirmed. So ordered.

All concur.

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