Bailey v. Wray

Prescott, J., delivered the opinion of the Court. Plaintiffs below appeal from a judgment entered upon a jury’s verdict in favor of the defendants. Three questions are presented for determination: (1) Did the trial court err in refusing to admit a photograph into evidence?; (2) Did the court commit prejudicial error in refusing to declare a mistrial?; and (3) Was the court in error in instructing the jury on the law relating to contributory negligence ? The plaintiffs, a husband and wife, occupied the first floor of a three-apartment building, owned and operated by the defendants.

The owners maintained and controlled a hallway and vestibule leading to the street, for use by the occupants of all three apartments. There are two marble steps that lead down to the vestibule from the hallway. Plaintiffs claimed that the defendants carelessly permitted the top step to get into an improper condition, which caused the wife to fall and injure herself. The slab of marble on the top step was cracked, and had been cracked during the four years’ occupancy of the apartment by the plaintiffs.

During the course of the trial, plaintiffs offered five photographs of the accident scene—all of which portrayed the condition of the top step. Four were admitted, but the trial court refused to admit the fifth, because it did not profess to represent the condition of the step at the time of the wife’s injury, but showed a portion of the step pulled forward and displaced, which had been deliberately done in order to photograph it in that position. ³⁶² There are many reasons why this ruling of the court was correct. We shall name several. In the first place, the admissibility of photographic evidence is largely in the discretion of the trial court.

In addition, there were four other pictures of the step that were received into evidence. It can scarcely be seriously argued that it was prejudicial error to refuse to admit a fifth photograph, when there were four others, all showing the condition of the top step, that were admitted. Moreover, the proffered photograph was not offered as a true representation of the condition of the step at the time of the accident, but a portion of the step had been intentionally moved in order to photograph it. Furthermore, the witness, who took the photographs, testified in detail as to the moveability of a part of the step, a fact which the photograph was supposed to demonstrate.

We hold there was no error here. II One of the defendants was called to testify, and on cross examination he was asked if he and his brother (the defendants) had not purchased the property in which the plaintiff wife