90 Ala. 25 | Ala. | 1890
1. The photograph of the trestle and of the wrecked train of cars was shown to have been taken about two hours after the accident occurred, and was verified by the testimony of the photographer as being a correct representation of the locality and scene. It was clearly admissible in evidence, to aid the jury in properly understanding the case.
It is a well understood rule, applied in every day practice in the courts, that diagrams and maps illustrating the scene of a transaction, and the relative location of objects, if proved to be correct, are admissible in evidence in order to enable the jury to understand and apply the proved facts to the particular case. — 3 Brick. Dig. 431, § 366. A plan, picture, or other representation produced by the art of photography, is admissible on like principles, if verified as a true and accurate representation. It is, in fact, but a scientific reproduction of & facsimile of the original object in nature, by a mechanical art which is every day advancing towards perfection. The competency of such evidence was settled in Luke v. Calhoun County, 52 Ala. 115, approving a like ruling in the case of Udderzook v. Commonwealth, 76 Penn. St. 340, where a photograph of a person in life, shown to be a correct picture, was admitted in evidence, for the purpose of aiding in the identification of a deceased person alleged to have been murdered. The case of Ruloff v. People, 45 N. Y. 213, supports the same principle.
In the case of Blair v. Pelham, 118 Mass. 420, which was-an action against a town, to recover damages for injuries caused by a defect in a highway, the defendant was permitted to put in evidence a photograph of the place of the accident, on its verification by the photographer as a true representation. So, in Church v. City of Milwaukee, 31 Wisc. 512, an action for .damages resulting to a lot-owner from a change in the grade of a street, a photograph of the premises, shown to-be correct, was admitted, “to aid the jury in arriving at a clear and accurate idea of the situation of the premises, and enable them to better understand how they were affected by the change in the grade.” And Cozzens v. Higgins, 33 How. Prac. 436, decided by the New York Court of Appeals, is to-the same effect. In an action of trespass against an adjoining-proprietor, for the wrongful act of opening holes in the walls of the plaintiff’s cellar, so as to render it untenable, by projecting into it heavy beams, a “photograjhic view” of the cellar was admitted in evidence, as “an appropriate aid to the-
We entertain no doubt as to the soundness of these rulings, and they fully support the action of the court in. admitting in ■evidence the photograph of the wrecked train and surrounding locality in this case.—1 Whart Law Ev. (3d Ed.), § 676; Eborn v. Zimpelman, 26 Amer. Rep. 319-321, note; Marcy v. Barnes, 16 Gray (Mass.), 161; Locke v. Sioux City R. R. Co., 46 Iowa, 109.
2-3. The .question propounded to the .witness Slaton, and his answer to it, tended to throw some light on the plaintiff’s ■contention, that the car containing the fertilizer was too heavily loaded — which was one of the grounds of negligence imputed to the defendant, as the proximate cause of the injury ■suffered by the plaintiff. This evidence was, therefore, relevant, and its admission free from error. The objection interposed, moreover, was general and undefined, failing to particularize any specified ground, and, for this reason, there was no •error in disregarding it.—Dryer v. Lewis, 57 Ala. 551; 3 Brick. Dig. 443, § 567.
4. The evidence tended to sustain the allegations of each -of the counts in the complaint — the first and the third — upon which the merits of the case were tried before the jury. And, under the circumstances, we are of opinion, that the questions -of negligence by the defendant, and of contributory negligence by the plaintiff, were both properly left to the jury.—L. & N. R. R. Co. v. Perry, 87 Ala. 392.
The objection taken to the panel of jurors was clearly without merit.
We discover no error in the record, and the judgment must he affirmed.
