Dallas Ry. & Terminal Co. v. Durkee

On Rehearing.

BOND, Chief Justice.

On motion for rehearing appellee contends error of the trial court in admitting in evidence four photographs taken in January 1945, when trees and bushes were free of foliage, as not reflecting the condition of the crossing at the time of the alleged injury in May 1944, hence the trial court did not err in refusing appellant’s request that the photographs go to the jury room to give visionary understanding of the condition of the crossing as affects the issues involved. It will be observed that appellee makes no counterpoint of error to the action of the trial court in admitting the photographs in evidence. However, in the light of appellee’s motion, and the dissenting opinion, we wish to submit the uniform holdings of courts of this State, as well as text writers on the subject, sustaining the position" that admission of photographs in evidence, with proper admonition by the court, is not error when the evidence shows that they substantially reflect the condition of the street crossing at the time of the collision. It is quite evident, as viewed from appellee’s own testimony in this case, that the photographs were very material, and, if admissible, should have gone to the jury room for inspection by the jury during their deliberations on the verdict.

In 32 C.J.S., Evidence, § 715, p. 623, the rule is recited: “The fact that there have been changes in conditions, including even substantial changes, will not necessarily exclude a photograph where the changes can be and are explained, so that the photographs, as explained, will give a correct understanding of the condition existing at the time to which the controversy relates, and be practically instructive.” The rule is likewise stated in 20 Amer.Jur., sec. 734, p. 613: “A mere change in the appearance of a locality, arising from photographs having been taken at different seasons of the year, is open to explanation.” In the City of Waco v. Criswell, Tex.Civ.App., 168 S.W.2d 272, 277 , photographs were admitted over objection, though they did not show that conditions in and about the location of a catch basin were substantially the same as the condition in the locality involved in that suit. The Waco Court of Appeals overruled the contem

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tion, saying: “* * * that the objections urged to the admissibility of the pictures goes to the weight of the evidence rather than to their admissibility.” In Bilbrey v. Gentle, Tex.Civ.App., 107 S.W.2d

597,

599 , this court held that pictures taken 18 months after the accident where the evidence shows that the highway at the time the pictures were taken, as here, was in practically the same condition as it was at the time of the accident, were admissible in evidence, reciting: “As this evidence tended to show that there had been no substantial change in the condition of the highway, we think the photographs were admissible.” Citing City of Waco v. Killen, Tex.Civ.App., 59 S.W.2d 940, 943 . In the-cited Killen case, Justice Alexander, then of the Waco Court, said: “Ordinarily a photograph, in order to be admissible, must represent the scene substantially as it existed at the time the controversy arose and not as it existed after a change had been brought about." Thus holding, in effect, that a picture, taken 3 "years after the collision in that case, which involved the location of a stump of a tree long before removed, but otherwise depicted the street, was admissible. In Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520 , 143 S.W.2d 763 , the court held that where testimony showed that photographs taken after the occurrence fairly and accurately represent the scene of the accident, they were admissible. In Hovey v. Sanders, Tex.Civ.App., 174 S.W. 1025 , writ refused, photographs of the scene of the accident between a train and an automobile were admitted over objections, showing a flat car instead of a box car placed on the track; the court held that the presence of the flat car, if noticed by the jury, could not have misled them when considered in the light of testimony that the deceased was killed by a box car and not by a flat car. Photographs tending to show distance from which the approaching streetcar could have been seen by a person intending to cross the tracks, are clearly admissible under the issue of contributory negligence. Missouri K. & T. R. Co. v. Moore, 4 Willson Civ.Cas.Ct.App., § 214, 15 S.W. 714 ; Devine v. Keller, 73 Tex. 364 , 11 S.W. 379 .

We think the photographs in this case were admissible, and, if admissible, certainly should have gone to the jury, on request by appellant. The trial court, in qualifying the bill on the issue, evidently recognized that the jury should have them, but 'only “if they request them.” Manifestly, appellant’s rights in the premises should not have been conditioned on the wish or demand of the jury, or on the discretion of the trial judge. Its rights are preserved by law, and cannot be arbitrarily taken away. Motion for rehearing overruled; motion to certify overruled.

LOONEY, dissents.