Dallas Ry. & Terminal Co. v. Durkee

LOONEY, Justice

(dissenting).

Among other defenses urged by appellant was that if appellee was injured as alleged, it was because he failed to keep a proper lookout for his own safety. On this issue appellant offered in evidence three photographs showing different views of the street intersection where the accident occurred. After the jury retired appellant requested the court to send these photographs to the jury to be considered by them during their deliberations; this the court refused to do, stating that if the jury requested the photographs they would be sent, otherwise not. Appellant reserved a bill of exception to this action of the court and assigned error thereon. The majority sustained this assignment of error, reversed the judgment below and remanded the cause for a new trial. I dissent from this action of the majority and, as briefly as is practicable will state my reasons for such dissent.

I do not think the photographs were admissible in the first place, because they did not correctly represent the scene as it existed at the time of the accident. The accident occurred in the Spring, May 6, 1944, when the surrounding trees and shrubbery were in full leaf; the photographs were not taken until in the Winter, January 16, 1945, when the same trees and shrubbery were bare of foliage. Obviously a person approaching the intersection could not have had the same view or lookout when the accident occurred as was possible at the time the photographs were taken. This fact the trial court seems to have realized and, although overruling appellee’s objections to the admission of the photographs, in admitting them admonished the jury as follows: “that none of the photographs are evidence of the position of the streetcar at the time of the collision (one of the photographs showed a streetcar that had been placed to be photographed), nor the amount of foliage on trees and shrubbery at that time, nor evidence of whether there was a sign in the middle of the intersection at the time of the collision” (Bill No. 3, pp. 64, 65 tr.).

It is obvious, I think, that the photographs did not portray the intersection as it existed at time of the accident, in the respects mentioned by the court in her qualification of the bill; that is, a streetcar appearing in one of the photographs did not correctly represent the position of the streetcar involved in the collision at a

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particular juncture sought to be established —that the trees and shrubbery, denuded of foliage, opened up a vista and afforded a view of the intersection that did not exist at the time of the accident, and a sign of caution swung in the middle of the intersection was not shown to exist at the time of the accident; in other words, the photographs taken in January 1945, did not correctly portray the scene as appellee viewed it in May 1944. The photographs being incorrect, as obviously they were, I think they should have been excluded in the first instance, and for same reason the court did not err in refusing to send them out to the jury after they retired.

The doctrine is laid down in 17 Tex.Jur., sec. 315, p. 733, that: “Photographs are admissible in evidence when relevant and shown to be correct, as, for example, photographs of the scene of an accident, or showing the condition of burned premises after the fire,” etc. The rule is announced in 20 Am.Jur., subject Evidence, sec. 730, that: “It is generally agreed that photographs are admissible in evidence only when they are verified or authenticated by some other evidence. One offering a photograph as evidence must show by extrinsic evidence that the photograph is an accurate and faithful representation of the place, person or subject which it purports to portray”; and at page 611, sec. 731, same authority, the rule is announced: “If the situation and surrounding circumstances of the talc-ing of a picture are subject to change, a photograph, to be admissible, must have been taken at the time of the transaction or before the situation and circumstances have undergone change.” In City of Waco v. Killen, Tex.Civ.App., 59 S.W.2d 940, 943 , writ dismissed, the court announced the following: “The court permitted ap-pellees to introduce -in evidence photographs of the scene of the accident taken approximately three years subsequent to the date of the accident and after the stump had been removed. 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.”

But even if the action of the court in admitting the photographs with the accompanying verbal instruction heretofore stated was unobjectionable, yet I do not think the court erred, under the circumstances, in refusing the request of appellant. As recited in the bill of exception, at the time the request was made the jury were in their room considering the case. The request made was that the court send the photographs “to the jury room by the bailiff to be given to the jury during their deliberations on the issues submitted to them in the charge of the court.” That was the request refused; it will be obvious that it was neither requested nor contemplated that the verbal instruction or admonition given by the court at the time the photographs were admitted would, in any form or manner, accompany them to the jury room. The photographs being incorrect in the respects mentioned by tha court in her verbal instruction, if sent to the jury room absent these instructions would have been unfair and harmful to ap-pellee; and for that reason I do not think the court erred in refusing appellant’s request.

However if, under the circumstances, the court should have sent the photographs out to the jury, yet I do not think her refusal to do so constituted material or reversible error. Each case of this kind must be determined by its own peculiar facts. In some cases the refusal of such a request would be material and reversible error; while in others not so, as illustrated by the three cases cited in the majority opinion. In Texas Employers Ins. Ass’n v. White, Tex.Civ.App., 68 S.W.2d 511, 514 , photographs of the scene of the accident, as in the instant case, were admitted in evidence, but the trial court, as in the instant case, refused a similar request to permit the jury to take the pictures with them in their retirement; error was assigned and, in disposing of the question, while recognizing the existence of such a rule, the court declined to hold that the action of the trial court constituted reversible error. In Trinity & B. V. R. Co. v. Lunsford, Tex.Civ.App., 183 S.W. 112, 113 (a leading case on the subject), there was introduced in evidence a written statement made by the plaintiff a short time after he received the injuries for which suit was brought; there was sharp conflict between the testimony given by plaintiff as a witness and portions of the written statement previously made. The court refused the request of appellant to permit the jury to have the written statement previously made to be considered during their deliberations. The action of the court in this respect was held reversible error; Judge Key speaking for the Court of Civil Appeals, among other things said:

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“The document referred to was not the deposition of a witness which the statute excludes, hut was written evidence which was offered by the defendant for the purpose of contradicting the testimony given by the plaintiff while on the witness stand, and it was clearly within the purview of the statute quoted. It was also very material upon the most vital issue in the case, and therefore the court committed reversible error in not permitting it. to be taken by the jury when they retired to consider of their verdict.” (Citing authorities.) In Bankers Life Co. v. Butler, Tex.Civ.App., 122 S.W.2d 1077 , the company sought to defeat recovery on the ground that the insured, in seeking re-instatement of the policy, made misrepresentations to the effect that she had not been ill and had not consulted a physician in five years. This statement was controverted by copies of the permanent record of a hospital that were introduced in evidence. The court refused to permit the jury to have these copies while deliberating; error was assigned and, in disposing of the question, the Court of Civil Appeals, among other things, said: “Since said exhibits related to the treatment of Mrs. Jettie W. Butler in the Methodist Hospital, which was a closely contested issue of fact in the case, it cannot be held that the error committed by the trial court in refusing to allow said exhibits to be detached and used by the jury in their deliberations was harmless” at page 1079 of 122 S.W.2d, first column.

It will be observed that the evidence kept from the jury in their deliberations in the two cases last mentioned was held by the court to be vital and material, while the photographs involved in the instant case, even if correct, proved nothing on the issue of proper lookout, except as mere circumstances to be considered in connection with the testimony of witnesses. The jury had these photographs before them, inspected and considered them in connection with the admonitory language of the court when originally introduced, and thereafter made no request that they be sent to their room. I am of opinion therefore that the action of the court in refusing the request of appellant was not the denial of any right reasonably calculated to cause and that probably did cause the rendition of an improper judgment. Rule 434, first proviso.

For the reasons stated I dissent from the decision of the majority, believing that the assignment of error should have been overruled and the judgment of the court below affirmed.