Lupton v. Southern Express Co.
169 N.C. 671
N.C.
1915
Check Treatment

Lead Opinion

AlleN, J.

There is no objection to the description of the injury as disclosed by the X-Ray plates. The exception is only to the exhibition of the plates to the jury, and as there is nothing to show any variance between the plates and the description given by the witness, we might dispose of the exception upon the ground that the ruling permitting the jury to see the plates, if erroneous, is harmless. "We are, however, of opinion that it was competent to introduce the plates and to permit the jury to see them.

What was said in Franh v. Bank, 37 N. Y. Sup. Ct., 34, which is approved in Bank v. McArthur, 165 N. C., 374, in reference to the microscope, is equally pertinent as applied to the X-Ray: “The administration of justice profits by the progress of science, and its history shows it to have been almost the earliest in antagonism to popular *673delusions and • superstitions. Tbe revelations of tbe microscope are constantly resorted to in protection of individual and public interests. It is difficult to conceive of any reason why, in a court of justice, a different rule of evidence should exist in respect to tbe magnified image presented in tbe lens of tbe photographer’s camera and permanently delineated upon tbe sensitive paper. Either may be distorted or erroneous through imperfect instruments or manipulation, but that would be apparent or easily proved. If they are relied upon as agencies for accurate mathematical results in mensuration and astronomy, there is no reason why they should be deemed unreliable in matters of evidence. Whenever what they disclose can aid or elucidate the just determination of legal controversies, there can be no well-founded objection to resorting to them.”

It has been held in several cases in our reports that the ordinary photograph when shown .to be a true representation and taken under proper safeguards is admissible in evidence (Davis v. R. R. Co., 136 N. C., 115; Pickett v. R. R., 153 N. C., 148), and the same rale prevails as to photographs taken by the X-Eay process.

“While a picture produced'by an X-Eay cannot be verified as.a true representation of the subject in the same way that a picture made by a camera can be, the rule in regard to the use of ordinary photographs on the trial of a cause applies to photographs of the internal structure and conditions of the human body taken by the aid of X-Eay, when verified by proof that they are a true representation. It has been held that, to constitute a foundation for the introduction of an X-Eay photograph in evidence, it is not essential that it appear that it was taken by a competent person, nor that the condition of the apparatus with which it was taken and the circumstances under which it was taken were such as to insure an accurate picture; but where it has been shown by the evidence of competent witnesses that it truly represents the object it is claimed to represent, there is sufficient foundation for its admission.” 17 Cyc., 420.

“Photographs taken by X-Eay process are admissible upon the same principles under similar circumstances with like effect as ordinary photographs.” Ene. Ev., vol. 9„ 775.

“The accuracy of a properly taken X-Eay photograph of the bones of a living body will be judicially known.” 1 Chamb. Mod. Ev., vol. 1, sec. 729.

“The process of X-Eay photography is now as well established as a recognized method of securing a reliable representation of the bones of the human body, although .they are hidden from direct view by the surrounding flesh, and of metallic or other solid substances which may be imbedded in the flesh, as was photography as a means of securing a *674representation of things which might be directly observed by the unaided eye at the time when photography was first given judicial sanction as a means of disclosing facts of observation, and for that purpose X-Bay photographs, or sciagraphs, or radiographs, as they are variously called, have been held admissible on the same basis as photographs. Bruce v. Beall, 99 Tenn., 303, 41 S. W. Rep., 445; Miller v. Dumon, 24 Wash., 648, 64 Pac. Rep., 804; Chicago, etc., Electric Co. v. Spence, 213 Ill., 220, 72 N. E. Rep., 796; Carlson v. Benton, 66 Neb., 486, 1 Am. Cas., 159, 92 N. W. Rep., 600; Geneva v. Burnett, 65 Neb., 464, 91 N. W. Rep., 275; 1 Wigmore Evidence, paragraphs 795-797. As is said in Mauch v. Hartford, 112 Wis., 40, 87 N. W. Rep., 816: Tt is the duty of courts to use every means for discovering the truth reasonably calculated to aid in that regard. In the performance of that duty every new discovery, wfien it shall have passed beyond the experimental stage, must necessarily be treated as a new aid in the administration of justice in the field covered by it. In that view, courts have shown no hesitation, in proper cases, in availing themselves of the art of photography by the X-Bay process.’ ” S. v. Matheson, 130 Iowa, 440.

This case is also reported in 8 A. and E. Ann. Oases, and the editor states his conclusion, in the note on page 435, to be: “There seems to be no doubt of the admissibility of X-Bay photographs in evidence upon a proper occasion. It is now a recognized fact that by the aid of proper apparatus a picture of the framework of the human body may be obtained that will more or less sharply define the .skeleton and any foreign substance that may be lodged in the body. Therefore X-Bay photographs are admissible in evidence when proper proof of their accuracy and correctness is produced. Miller v. Mintum, 73 Ark., 183, 83 S. W. Rep., 918; Chicago, etc., Electric R. Co. v. Spence, 213 Ill., 220, 72 N. E. Rep., 796; Jameson v. Weld, 93 Me., 345, 45 Alt. Rep., 299; De Forge v. New York, etc., R. Co., 178 Mass., 59, 59 N. E. Rep., 669; Carlson v. Benton, 66 Neb., 486, 1 Ann. Gas., 159, 92 N. W. Rep., 600; Bruce v. Beall, 99 Tenn., 303, 41 S. W. Rep., 445. See, also, Frazer v. California St. Cable R. Co., 146 Cal., 714, 81 Pac. Rep., 29; Sias v. Consolidated Lighting Co., 73 Vt., 35, 50 Alt. Rep.” Carlson v. Benton, 66 Neb., 486; Bruce v. Beall, 99 Tenn., 303, and other cases cited in the note to the quotation from Cyclopedia of Law, support the text.

There was also no error in permitting the jury to see the plates. The rule, based on want of confidence in the intelligence of jurors, formerly prevailed that jurors might hear but could not see, but it has been expressly repudiated in this State. Martin v. Knight, 147 N. C., 578; Nicholson v. Lumber Co., 156 N. C., 59.

In the first of these cases Justice Connor, discussing the propriety of permitting a jury to see a paper whose genuineness was in contro*675versy, says: “Tbe purpose of tbe evidence is to aid tbe jury. Why convey information tbrougb tbe sense of bearing and exclude tbe sense of seeing? Can it be doubted for a moment tbat tbey would receive a clearer, more intelligent view of tbe matter in controversy if permitted to bave tbe explanation made witb tbe aid of their sight? "We know from experience tbat arguments in this Court are illuminated and our apprehension of tbe matter in controversy made clearer by maps in cases involving tbe management of machinery or tbe situation of parties. It was supposed in tbe past tbat tbe average juror was not sufficiently intelligent — educated—to comprehend tbe fine shades of difference in bandwriting. "Whatever may be thought of tbe soundness of tbe reason in tbe past, it is manifest tbat it has but little force at this time. As education and intelligence bave increased and tbe methods of illustration improved, tbe capacity of tbe ‘average man’ to write and pass upon tbe handwriting of others has advanced.”

It is true tbat tbe witness who made tbe X-Bay photographs does not say, in so many words, tbat tbe photograph is an accurate and true representation of tbe condition of tbe foot, but this is a reasonable inference from bis evidence. He bad sworn tbat be would tell tbe truth; be was an expert and experienced in tbe manipulation of tbe X-Bay, and bis whole evidence shows tbat be believed tbe photographs to be a true representation of tbe condition of tbe foot.

His Honor did not, at any time, tell tbe jury, as contended by tbe defendant, tbat tbe defendant admitted negligence, and if be erroneously stated tbat counsel for tbe defendant admitted in tbe argument tbat tbe plaintiff was struck by tbe truck, it was tbe duty of counsel to correct bis error. LaRoque v. Kennedy, 156 N. C., 372.

All tbe evidence for plaintiff and defendant showed tbat tbe plaintiff was injured by tbe truck, and tbe question in controversy was bow tbe injury occurred, and this was submitted to tbe jury under proper instructions, which stated fully tbe contentions of tbe defendant.

There are other exceptions to tbe charge which need not be considered separately. Tbey consist- principally -of objections to statements of contentions of tbe parties, which arose upon tbe evidence, and to single expressions taken from a paragraph, which are free from criticism when considered in connection witb tbe context. We would not approve tbe expression tbat adequate compensation cannot be awarded for physical pain and mental suffering, standing alone, but tbe whole charge shows tbat bis Honor was indicating tbe difficulty of fixing a money value for physical pain and mental suffering, which all admit, and tbat be instructed tbe jury tbat no damages could be awarded as punishment, and only a just compensation based on tbe evidence.

Several exceptions are to charges favorable to tbe defendant.

*676Tbe motion for judgment of nonsuit is not discussed'in tbo brief and need not be considered, except to say tbat the evidence in the record was sufficient, if believed, to establish the negligence of the defendant and damage to the plaintiff as the proximate result thereof.

We find no error upon the trial.

No error.





Concurrence Opinion

Clark, C. J.,

concurs, especially in the proposition illustrated by the citation from S. v. Matheson, 130 Iowa, 440: “It is the duty of the courts to use every means for discovering the truth, reasonably calculated to aid in that regard. In the performance of that duty, every new discovery, when it shall have passed beyond the experimental stage, must necessarily be treated as a new aid to the administration of justice in the field covered by it. In that view, courts have shown no hesitation, in proper cases, in availing themselves of the art of photography by the X-Ray process.” This case is reported in 8 A. and E. Ann. Cases, 435, with annotations.

When the question of the admissibility of photographs was first presented to this Court, in Hampton v. R. R., 120 N. C., 534, it was held by a divided Court that they were inadmissible, because the Court had never known of their being used; but the dissenting opinion in favor of their admissibility has ever since been held to be the law. In Lowman v. Ballard, 168 N. C., 16, the Court disallowed the validity of service of process over the telephone by a divided Court, but this has since been allowed, except as to summons (as to which the statute is silent) by chapter 48, Laws 1915.

The admissibility of the X-Ray photography as evidence is now well accepted in jurisprudence.