56

in rebuttal of testimony by the defendant tending to show that no similar accident had ever occurred before. Proof of similar accidents after the accident in question is sometimes admitted to show knowledge on the part of the person charged with negligence.57 Evidence of accidents at other places and at other times and in no way connected with the accident in question is clearly immaterial and in-admissible. Evidence that no previous accident had occurred at a particular place or in connection with a particular piece of machinery is not admissible to show its safety in an action for damages resulting from an alleged defect therein, unless it appears that its use was substantially similar to that made of it at the time of the accident and such as to test the alleged defects.59

58

§ 7873. Evidence to Prove General Condition of Gas Pipe.-Evi-dence as to a leak in a natural gas company's main at a point other than that from which gas alleged to have caused an explosion must have come, but in the same line of pipe, has been held admissible to show the general condition of the pipe.60

§ 7874. Experiments and Tests.-The court, in its discretion, may permit the parties to make experiments before the jury to explain. testimony already given. These will usually be permitted where the court deems them necessary to a clear understanding of the facts in the case. 61 Thus, a contention that a scar upon the outside of the bot

464; s. c. 33 N. E. Rep. 605; Tempearance Hall Assn. v. Giles, 33 N. J. L. 260; Anderson v. Taft, 20 R. I. 262; s. c. 39 Atl. Rep. 191; Moore v. Richmond, 85 Va. 538; s. c. 8 S. E. Rep. 387.

56 Illinois &c. R. Co. v. Treat, 179 Ill. 576; s. c. 54 N. E. Rep. 290; aff'g s. c. 75 Ill. App. 327.

Gable v. Kansas City, 148 Mo. 470; s. c. 50 S. W. Rep. 84; Central of Georgia R. Co. v. Ross, 107 Ga. 73; s. c. 32 S. E. Rep. 904; Johnson v. Manhattan R. Co., 52 Hun (N. Y.) 111; s. c. 23 N. Y. St. Rep. 388; Auld v. Manhattan Life Ins. Co., 34 App. Div. (N. Y.) 491; s. c. 54 N. Y. Supp. 222; Vandecar v. Universal Trust Co., 80 App. Div. (N. Y.) 274; s. c. 80 N. Y. Supp. 290. But see Wilkins v. Monson &c. Slate Co., 96 Me. 385; s. c. 52 Atl. Rep. 755.

5 Sugar Creek Coal Min. Co. v. Peterson, 177 Ill. 324; s. c. 52 N. E. Rep. 475; rev'g s. c. 75 Ill. App. 631; Wise v. Ackerman, 76 Md. 375;

s. c. 25 Atl. Rep. 424; Gulf &c. R... Co. v. Locker, 78 Tex. 279; s. c. 14 S. W. Rep. 611; Missouri &c. R. Co.. v. Mitchell, 75 Tex. 77; s. c. 12 S... W. Rep. 810; 41 Am. & Eng. R. Cas. 224. Evidence that a cornice of a building, constructed similarly to one from which a brick fell, injuring plaintiff, held up the weight of a man, is inadmissible to show that the cornice in question was properly constructed: Mayer v. ThompsonHutchison Bld. Co., 116 Ala. 634; s. c. 22 South. Rep. 859.

59 Lutton v. Vernon, 62 Conn. 1; s. c. 23 Atl. Rep. 1020. See also, T. & H. Pueblo Bldg. Co. v. Klein,. 5 Colo. App. 348; s. c. 38 Pac. Rep. 608; Kolb v. Sandwich Enterprise Co., 36 Ill. App. 419.

Go Alexandria Min. &c. Co. v. Irish, 16 Ind. App. 534; s. c. 44 N. E. Rep. 680.

61 People v. Levine, 85 Cal. 39; Osborn v. Detroit, 32 Fed. Rep. 36; Heath v. State, 93 Ga. 446; Chicago &c. R. Co. v. Legg, 32 Ill. App. 218;

tom flange of a railroad rail was made by a wheel on the engine as the rail lay across the track, may be disproved by producing a similar wheel, although somewhat smaller than that on the engine, and rolling it upon a section of a similar railroad rail laid across another, in order to show that the wheel could not strike the lower flange as claimed, where it is also shown that the larger the diameter of the wheel the farther it would be from striking such flange.62 So, the court may allow an experiment with a correct model of the coal bucket by defects. in which an employé was alleged to have been injured, for the purpose of showing how the bucket worked when in use, the court reminding the jury that the experiment was permitted solely as an illustration of how the accident could have happened. The jury, however, have no right to make experiments out of court unless under the court's supervision. Courts generally allow evidence of experiments made out of court under substantially similar conditions to those surrounding the transaction in question, but such evidence is not always looked upon with favor; and it seems a better practice to put before the jury the physical and topographical facts surrounding the injury and the place of the injury, leaving the jury to draw a just conclusion concerning the issue. 65 Evidence of such experiments has been held admissible to show that one could or could not have seen that which he testifies to have seen,-as where the inquiry is whether an engineer was able to discern objects on the track, or whether the train that ran over

Illinois &c. R. Co. v. Burns, 32 Ill.
App. 196; Libby v. Scherman, 146
Ill. 540; s. c. 34 N. E. Rep. 801;
Pennsylvania Coal Co. v. Kelly, 156
Ill. 9; Leonard v. Southern Pac.
Co., 21 Or. 555; s. c. 15 L. R. A. 221;
28 Pac. Rep. 887.

62 Leonard v. Southern Pac. Co., 21 Or. 555; s. c. 15 L. R. A. 221; 28 Pac. Rep. 887.

63 Pennsylvania Coal Co. v. Kelly, 156 Ill. 9; s. c. 40 N. E. Rep. 938; aff'g s. c. 54 Ill. App. 622.

64 Harrington v. Worcester &c. R. Co., 157 Mass. 579; s. c. 32 N. E. Rep. 755; Winslow v. Morrill, 68 Me. 362.

65 Alabama &c. R. Co. v. Burgess, 114 Ala. 587; s. c. 22 South. Rep. 169; Lake Erie &c. R. Co. v. Mugg, 132 Ind. 168; s. c. 31 N. E. Rep. 564; Kinney v. Folkerts, 84 Mich. 616; S. c. 48 N. W. Rep. 283. In an action for injury to a railroad employe by an engine which is shown to have struck him while standing against a coal bin eighteen inches from the end of the engine beam

63

while the engine was running slowly, evidence of an experiment by the railroad company in placing another employe in as nearly the same position as possible, and running an engine safely by him at the same rate of speed, under the same conditions, is admissible: Hayes v.. Southern Pac. Co., 17 Utah 99; s. c. 4 Am. Neg. Rep. 730; 11 Am. & Eng. R. Cas. (N. S.) 419; 53 Pac. Rep. 1001.

Burg v. Chicago &c. R. Co., 90 Iowa 106; s. c. 57 N. W. Rep. 680; Missouri &c. R. Co. v. Moffatt, 56 Kan. 667; s. c. 44 Pac. Rep. 607 (test to determine whether object obscured view and deadened sound of signals). Evidence that small objects or children could be seen on a railroad bridge at the point where plaintiff was injured, from a curve in the road, because of the absence of natural objects which might otherwise obstruct the view, is competent when given by those who have made the experiment, to show want of care on the part of

67

a person could have been stopped after the engineer saw, or could have seen, the person killed, and, in the latter case, though the test was made for the purpose of proving the result. The court, in its discretion, may allow evidence of other similar experiments in rebuttal, although conducted with less perfect appliances and less expert witnesses.68

§ 7875. Verification of Model Used for Purpose of Illustration.— It is not necessary to verify a model designed to represent the relation of objects at the scene of an accident, before allowing a witness to use it to illustrate his testimony, where the model itself is not introduced and is used only for the purpose of illustration.“9

§ 7876. Diagrams.—Diagrams and drawings correctly representing the scene of the accident are admissible where necessary to a clearer understanding of the testimony,70 though made by one not a witness.71 In one case, it was held proper to permit a witness who had taken measurements at the scene of the accident, and made a plat of it, but who was not present when the accident occurred, to testify that he had been shown the place by persons who were present, and to permit the latter to testify that they had shown the place to different parties.72

§ 7877. Photographs and Maps.-Photographs of persons and scenes are admissible to aid the jury to understand the evidence where an actual view is impracticable, provided they are verified by proof showing the correctness of the representation and its relevancy to the issues.73 It is not absolutely essential that the photograph should be verified by the person who made it; the proof may be made by any person familiar with the subject of the photograph and able to testify

the engineer: Young v. Clark, 16 Utah 42; s. c. 50 Pac. Rep. 832.

67 Byers v. Railroad, 94 Tenn. 345; s. c. 29 S. W. Rep. 128.

es Illinois &c. R. Co. v. Burns, 32 Ill. App. 196; Chicago &c. R. Co. v. Legg, 32 Ill. App. 218.

Knop v. Dechert, 7 App. Div. (N. Y.) 390; s. c. 39 N. Y. Supp. 911. TO Battishill v. Humphrey, 64 Mich. 494; s. c. 7 West. Rep. 806; Culbertson v. Holliday, 50 Neb. 229; s. c. 69 N. W. Rep. 853; Missouri &c. R. Co. v. Moore, 4 Tex. Civ. App. 323; s. c. 15 S. W. Rep. 714.

Bunker Hill &c. Min. &c. Co. v. Schmelling, 79 Fed. Rep. 263; s. c. 24 C. C. A. 565; 48 U. S. App. 331.

72 Over v. Missouri &c. R. Co. (Tex. Civ. App.), 73 S. W. Rep. 535 (no off. rep.).

73 Chicago v. Vesey, 105 Ill. App. 191; Wabash R. Co. v. Prast, 101 Ill. App. 167; Williams v. Carterville, 97 Ill. App. 160; Miller v. Louisville &c. R. Co., 128 Ind. 97; s. c. 27 N. E. Rep. 339; Sterling v. Detroit, 134 Mich. 22; s. c. 10 Det. Leg. N. 399; 95 N. W. Rep. 986; Omaha &c. R. Co. v. Beeson, 36 Neb. 361; s. c. 54 N. W. Rep. 557; Warner v. Randolph, 18 App. Div. (N. Y.) 458; s. c. 45 N. Y. Supp. 1112; Goldsboro v. Central R. Co., 60 N. J. L. 49; Smith v. Territory, 11 Okla. 669; s. c. 69 Pac. Rep. 805; Beardslee v. Columbia Twp., 188 Pa. St. 496; s. c. 41 Atl. Rep. 617; Dederichs v. Salt Lake City R. Co., 14 Utah 137; s. c. 46 Pac. Rep. 656, and note to same in 35 L. R. A. 802.

to its correctness." The photograph of a scene should be received only where the conditions of the place have remained unchanged since the happening of the accident," or where, if changed, the changes are immaterial and the substantial identity of the place is not destroyed,70 -as, for instance, by a fall of snow," or a storm meanwhile, which did not alter the features of the scene.78 Thus, it has been held proper to admit the photograph of the place where an accident occurred in the highway alleged to be defective, although it was taken subsequently and after the erection of a fence, where the court states to the jury that any subsequent change is not evidence of negligence. But photographs taken long after the occurrence of the injury after material changes have been made should be refused,80 especially where maps of the place made soon after the accident are in evidence. So, the photograph of a sidewalk taken after an accident caused by slipping upon rough ice

"Roosevelt Hospital v. New York Elev. R. Co., 50 N. Y. St. Rep. 456, 458; s. c. 21 N. Y. Supp. 205, 206.

7 Kansas City &c. R. Co. v. Smith, 90 Ala. 25; s. c. 8 South. Rep. 43; Chicago &c. R. Co. v. Lawrence, 96 Ill. App. 635; Nies v. Broadhead, 75 Hun (N. Y.) 255; s. c. 58 N. Y. St. Rep. 677; 27 N. Y. Supp. 52; San Antonio v. Talerico, Tex.. Civ. App.; s. c. 78 S. W. Rep. 28; s. c. modified, Tex.; 81 S. W. Rep. 518. In an action against a railroad company for injuries to an employé of another road from getting his foot caught in an unblocked frog, a photograph taken freshly after the accident, when there has been no change in the condition of the frogs, the verification having been waived, is admissible to show that other frogs in the vicinity were unblocked, where evidence has been given on the part of the defendant from which it may be inferred that all the frogs were kept blocked, as well as that at which the accident happened: Turner v. Boston &c. R. Co., 158 Mass. 261; s. c. 33 N. E. Rep. 520.

78 Wimber v. Iowa &c. R. Co., 114 Iowa 551; s. c. 87 N. W. Rep. 505; Parshall v. New York &c. R. Co., 50 N. Y. St. Rep. 502; Glasier v. Hebron, 62 Hun (N. Y.) 137; Beardslee v. Columbia Twp., 188 Pa. St. 496; s. c. 41 Atl. Rep. 617. A photograph of a railroad crossing where an accident occurred is not rendered inadmissible by the fact that the rail

81

79

road company has erected gates at the crossing since the accident: Stott v. New York &c. R. Co., 50 N. Y. St. Rep. 500; s. c. 21 N. Y. Supp. 353.

"Fitzgerald v. Hedstrom, 98 Ill. App. 109.

TS Williams v. Brooklyn Elev. R. Co., 32 N. Y. St. Rep. 702; s. c. 10 N. Y. Supp. 929; s. c. rev'd on other grounds, 126 N. Y. 96; 36 N. Y. St. Rep. 504; 46 Am. & Eng. R. Cas. 149; 26 N. E. Rep. 1048.

TO Glasier v. Hebron, 62 Hun (N. Y.) 137; s. c. 41 N. Y. St. Rep. 747; 16 N. Y. Supp. 503; s. c. rev'd on other grounds, 131 N. Y. 447; 43 N. Y. St. Rep. 319, 909; 30 N. E. Rep. 239, 597.

80 Chicago &c. R. Co. v. Corson, 101 Ill. App. 115; s. c. aff'd, 196 Ill. 98; 64 N. E. Rep. 739; Cleveland &c. R. Co. v. Monaghan, 140 Ill. 474; s. c. 11 Rail. & Corp. L. J. 285; 30 N. E. Rep. 869; aff'g s. c. 41 Ill. App. 498; Iroquois Furnace Co. v. McCrea, 191 Ill. 340; s. c. 61 N. E. Rep. 79; Keyes v. State, 122 Ind. 527; s. c. 23 N. E. Rep. 1097; Barker v. Perry, 67 Iowa 146; Leidlein v. Meyer, 95 Mich. 586; s. c. 55 N. W. Rep. 367; Hampton v. Norfolk &c. R. Co., 120 N. C. 534; s. c. 35 L. R. A. 808; 27 S. E. Rep. 96; Beardslee v. Columbia Twp., 188 Pa. St. 496; s. c. 41 Atl. Rep. 617.

St Hampton v. Norfolk &c. R. Co., 120 N. C. 534; s. c. 35 L. R. A. 808; 27 S. E. Rep. 96; 7 Am. & Eng. R. Cas. (N. S.) 510.

83

thereon is properly excluded if it appears by inspection that it does not represent the slipperiness or the roughness of the ice or the quantity of it in such a way as to be instructive.82 A photograph of the vehicle, in which a passenger was riding at the time of an accident is properly received to explain the physical facts surrounding the injury; but not a photograph of another vehicle of exactly the same pattern.' The photograph of a child seven years old at the time of his death, alleged to have been caused by defendant's negligence, has been held admissible to show his physical development, although it was taken two years before the death of the child. The rule in regard to the use of ordinary photographs to enable the jury to better understand the evidence or the merits of the case, applies to the photographs taken by aid of X-rays.85

88

84

86

87

§ 7878. View of Locality. It is within the sound discretion of the court to permit the jury to view and inspect the place where personal injuries are alleged to have been sustained, and the exercise of this discretion will be disturbed only in cases of clear abuse. It is always to be borne in mind that the purpose of the view is to enable the jury to better understand the evidence, and not to collect new evidence. The view should be permitted only where the place is shown to be in essentially the same condition as it was at the time the injury complained of was received. This right to a view in the discretion. of the court is a statutory right in most of the States, and is, of course, closely construed, and does not generally include the right to a demonstration to the jury of the working of machinery or other instrumentality alleged to have caused the injury, at the scene of the accident.9°

89

82 Harris v. Quincy, 171 Mass. 472; s. c. 50 N. E. Rep. 1042.

83 People's Passenger R. Co. v. Green, 56 Md. 84.

Taylor &c. R. Co. v. Warner, 88 Tex. 642; s. c. 32 S. W. Rep. 868.

85

5 Smith v. Grant (Colo.), 29 Chic. Leg. N. 145 (no off. rep.); Geneva v. Burnett, 65 Neb. 464; s. c. 91 N. W. Rep. 275; Mauch v. Hartford, 112 Wis. 40; s. c. 87 N. W. Rep. 816.

se Lake Erie &c. R. Co. v. Purcell, 75 Ill. App. 573; Leidlein v. Meyer, 95 Mich. 586; s. c. 55 N. W. Rep. 367; People v. Thorn, 156 N. Y. 289; s. c. 42 L. R. A. 368; 50 N. E. Rep. 947.

Springfield v. McCarthy, 79 Ill. App. 383; Jackson Co. v. Nichols, 139 Ind. 611; s. c. 47 Am. & Eng.

Corp. Cas. 198; 38 N. E. Rep. 526;
Shelby Co. v. Castetter, 7 Ind. App.
309; s. c. 33 N. E. Rep. 986; 34 N.
E. Rep. 687; Klepsch v. Donald, 4
Wash. 436; s. c. 30 Pac. Rep. 936; 31
Am. St. Rep. 991.

88 Wright v. Carpenter, 49 Cal. 607; Heady v. Vevay &c. Co., 52 Ind. 117; Lake Shore &c. R. Co. v. Gaffney, 9 Ohio C. C. 32; s. c. 2 Ohio Dec. 212.

SD Seward v. Wilmington, 2 Marv. (Del.) 189;. s. c. 42 Atl. Rep. 451; Banning v. Chicago &c. R. Co., 81 Iowa 74; s. c. 56 N. W. Rep. 277; Stewart v. Cincinnati &c. R. Co., 89 Mich. 315; s. c. 50 N. W. Rep. 852; 49 Am. & Eng. R. Cas. 456.

Moore v. Chicago &c. R. Co.. 93 Iowa 484; s. c. 61 N. W. Rep. 992.