Mayor of Baltimore v. State Ex Rel. Biggs

Thomas, J., delivered the opinion of the Court. Bush street, in Baltimore City, crosses Bussell street, sometimes called the Annapolis road, at right angles, and extends to and ends, at what is spoken of in the evidence as the northwest side of Bussell street. There is a sewer under the bed of Bush- street, which also crosses Bussell street at right angles, and extends to the northwest side of Bussell street and there empties in Bush street dock. At. the mouth of the sewer at the end of Bush street there was a stone wall, which ran parallel with Bussell street and the coping of which was about forty feet long.

There were two street car tracks on Bussell street where it crossed the end of Bush street, and the coping of the wall, which ran along the ¹¹⁵ northwest side of Bussell street and at the end of Bush street was-, according’ to the testimony of some of the witnesses, only about six inches above the surface of Bussell and Bush streets at their intersection, or above the surface of the ground adjoining the coping. At the time of the accident which gave rise to this suit there was an arc light about seventy or one hundred feet from the corner of Bush and Bussell streets, or from the end of the coping, and another light between one hundred and fifty and two hundred feet- further from the crossing. On the night of February 27th, 1915, Albert Biggs while operating an automoible on Bush street where it crosses Bussell si reel ran over the end of Bush street and into the Bush strecd dock. He died on the 11th of March following, and this suit was brought for the use of his,widow and children to recover damages occasioned by his death, which is alleged to have resulted from his being thrown into- the dock and to have been caused by the negligence of the Mayor and City Council of Baltimore in permitting Bush street where it adjoined Bush street- dock to be and remain in an unsafe condition for public travel.

This is the second appeal in the case. At the first trial the low’er Court withdrew the case from the jury on the ground that there was no evidence legally sufficient to prove nocligenoe on the part of the city, and on the further ground that it appeared that the deceased had been guilty of contributory negligence. This Court reversed the judgment in favor of the defendant in 129 Md. 686 , and awarded a new trial. Describing the scene of the accident Jodgk Briscos there said: “At the foot of Bush street and on the sewer there was a stone wall, the coping of which was about six or seven inches above the- surface of the adjoining ground and adjacent to and alongside of the Annapolis road, and there ivas testimony that this coping, to one walking down Busli street at night could not he seen 'until you got right on top of it.’ While there were 1wo arc lights attached to ¹¹⁶ poles, one across the road at Bush street and the Annapolis road, and the other about 150 or 175 feet distant to the west from the first light, there is a conflict in the testimony, as to whether the arc lights there located furnished sufficient light and warning to enable travelers or strangers passing at night, along Bush street, to see that this street ended at the Annapolis road and Bush street dock.

There was no light upon the stone wall and no guard around or near the coping on the wall, and this coping was only about, six or seven inches above the surface of the ground.” In support of the ■rule that it is'the- duty of a municipality to keep its streets in a safe condition for public travel, Jud&e Briscoe quotes the prayer approved by this Court in Mayor and City Council v. O’Donnell, 53 Md. 110 : “That it was the duty of the defendant to take proper precaution, by proper guards, signals, lights or other warnings, to warn persons of the impassable condition of the street, so as to prevent injuries to persons passing along said street, and if the jury further find that, the defendant and those employed by it in repairing and reeurbing said street, did not use ordinary can' in providing such precautions and that the plaintiff in consequence of such neglect to provide such precautions was thrown from his hack while driving with ordinary care along said street, then the plaintiff is entitled recover,” and then quotes with approval the statement of the Court in Mayor and City Council of Baltimore v. Hutchinson, 166 Fed. 647 : “Undoubtedly, a municipality is not required ordinarily to erect barriers, railings or other construction to prevent persons traveling upon a highway from straying therefrom; but it does not follow that the obligation does not exist where the point is dangerous, either naturahv or because of the work being done in and about the highway at the particular time. Whether the excavation in this case was dangerous, or the railing thereto, or the warning given was sufficient, to protect persons from or warn them of such danger were questions of fact, all to be determined by the jury upon consideration of the whole evidence.” ¹¹⁷ During the second trial, which resulted in a verdict and judgment in favor of the plaintiff for $10,000.00, the defendant reserved twenty-nine exceptions to rulings of the Court on the evidence and a further exception to the action of the Court on the prayers. The first sixteen exceptions, except the twelfth exception, relate to the admissibility of these photographs of the scene of the accident. The accident occurred on the 27th of February, 1913, and the photographs were, taken sometime in April following.

The evidence shows that, between the date of the accident and the time the photographs were taken Hush street and Russell street, where it crosses, Bush street, had been paved, and one of the defendant’s witnesses testified that some little grading had been done on Russell street at that point. But the photographer who- took the photographs testified that they correctly represented the conditions existing at the time they were taken, and a number of plaintiff's witnesses testified that they fairly represented the scene of the accident as it appeared on the 27th of February, except that the streets referred to were not then paved, hut were dirt roads, or were paved with cobblestone- which were then covered with dirt. The photographs were admitted in evidence over the objection of the defendant with leave to either of the parties to prove any changes they showed in the surface of the streets, and the- Court then called the jury’s attention to- the fact that the parties agreed that the streets at the time of the accident were not smooth streets as represented by the photographs, but “were cobblestones.” It is said in 17 Cyc., 4-17: “When in an action for personal injuries or other action of to-rt, or in criminal prosecutions, it becomes material to know the location, surroundings and condition of the premises upon which the accident, injury or crime in controversy occurred, photographs, of the locus in quo, if verified by proof that they are true representations, are competent evidence. But the value and admissibility of the photograph, as in other cases, depends upon the ¹¹⁸ fact that it is a correct representation of the place in question, and that the condition existing when it was taken was an accurate reproduction of the condition existing when the accident, injury or crime occurred.” While this rule has been followed in this State (Columbia, etc., R. Co. v. Huff, 105 Md. 34 ), this Court has also recognized the principle that slight changes in the condition, which doi not destroy the substantial identity of the location, should not render the photographs inadmissible, and that the matter is one that should be left largely to the discretion of the trial Court.

In the case of Consol. Gas. Co. v. Smith, 109 Md. 186 , the Court said: “As to whether a photograph is sufficiently verified, or is practically instructive, the question is a preliminary question, for the Court, and while there is some diversity of authority as to whether the determination of the Court in this respect is open to review or not, we think the weight of authority is that this discretion is not the subject of exception unless it is plainly exercised in an arbitrary manner. * * * In all such cases-, if there is evidence of changes in the condition or surroundings of the object since the accident, this may lead to the exclusion of the photograph, and should do so, where the substantial identity of the conditions has not been preserved.” In the case of Md. Elec. Ry.

Co. v. Beasley, 111 Md. 270, there was an exception “to the admissibility of photographs taken sometime after the accident and after a change of seasons,” and in disposing of it, Judge Pearce, speaking for this Court, said: “In the case before us certain trees which were referred to by the driver as obstructing the vision, and which were in leaf at the time of the accident in June, had been since trimmed, though only in the tops, and there had been a fall of snow when the photograph was taken. It is not possible to lay down a general rule as to what changes shall require an exclusion of photographic representations of the locality, but the trial Court with the photographs before it, and the witness who took them, ought to be conceded some discretion ¹¹⁹ in admitting or rejecting them, and we should not feel warranted in reversing this judgment upon that ground, without clear* proof that injm*y was thereby inflicted upon the de^ fendant.” In the case of Beardslee v. Columbia Township, 188 Pa. St. 496, 41 Atl. 617 , the Supreme Court of Pennsylvania said: “The further objection in the present case, that the photograph was not taken until after the township defendant had made changes in the road at the place of the accident, is not without- difficulty. In photographs, as in plans, maps or other drawings used as evidence, there ought to he substantial identity in the person, place or thing photographed, and that which the jury are to consider in the case.

But photographs of the scene of an accident, taken at or near to the time, axe not always obtainable; and bearing in mind the object sought,—the assisting of the jury, by knowledge of the locality, to judge the conduct- of the parties with reference to the issue raised,—the only practical rule would seem to he that the changes must not he such as to destroy the substantial identity, and that the changes, whatever they are, must he carefully pointed out and brought to the jury’s attention. This would have to be the course pursued if a view were allowed to the jury at the trial, and no other appears practicable in regard to plans, photographs or other substitutes for a view. With these safeguards, the subject must be left largely to the discretion of the trial judge. In the present case we cannot see that there was any error in regard to the photographs of which the appellant- is now entitled to complain.” See also Dyson v. New York & N. E. R. Co., 57 Conn. 9 , 17 Atl. 137 .

In the case at bar the only purpose of offering the photographs- was to- show the location of Bush and Russell streets, the mouth of the sewer and the dock at the place of the accident. There was no change in the conditions in respect to these- objects, and it is not possible that the repaving of the streets, of which the jury was advised, could have rendered the photographs misleading or deceptive as to their location at the time of the ¹²⁰ accident. It is not claimed that the photographs do not fairly represent the location of the light near the corner of Bush and Bussell streets, and so far as the height of the coping above the surface of the street or the adjoining ground, to which so much of the evidence was directed, is concerned, the photographs, which were exhibited to this Court, if they can be said to furnish any indication, are more favorable to the defendant than the testimony of the plaintiff's witnesses.. The changes in the condition at the place of the accident, pointed out in the evidence, are not such as to justify the Court in holding that, the photographs were not helpful to the jury, and that there was- error in admitting them.

Moreover, it appears from the record that after they were admitted in evidence, the jury, during the trial, with the consent of the Court and counsel, visited and viewed the scene of the accident. Fnder such circumstances, it could hardly be said that the admission of the photographs was prejudicial and reversible error. The twelfth exception is to the ruling of the Court allowing counsel to read a “stenographic copy of the testimony of a deceased witness who testified at the first trial.” While the testimony of a deceased witness may be proved by the stenographer who took the testimony and who testified from his notes, or by a witness who heard the testimony, it is not proper to allow counsel to read to the jury a, copy of the evidence reduced to writing from the stenographic notes. Ecker v. McAllister, 54 Md. 362 ; Herrick v. Swomley, 56 Md. 439 ; 10 R. C. L., Sec. 354, page 972.

Counsel for the appellant stated that this exception was not important, and after reading the evidence we would not be disposed to reverse the judgment because of its admission. Hie seventeenth and eighteenth exceptions arc to the admission in evidence of a photographic copy of the application of the deceased for insurance in the John Hancock Mutual Life Insurance Company and the report of the result of the medical examination of the deceased made by ¹²¹ Doctor Yon Dreele. .Doctor \ron Dreelo testified, that he did not know whether the Win. A. Biggs mentioned in the application ivas the same person as