Finch v. W. R. Roach Co.

*592 Butzel, J. Plaintiff sued for damages for personal injuries sustained in falling from an alleged defectively constructed ladder furnished him by defendant. Defendant owned and operated an orchard near Lexington, Michigan, where it sold cherries at a given price, but at a lower price to those who picked the cherries themselves. It appears that those who picked for themselves were obliged to strip an entire tree before leaving the orchard. Plaintiff, his wife, and a hired man went to defendant’s orchard to pick their own. Defendant’s overseer supplied plaintiff an eight-foot three-legged ladder and designated a tree. When plaintiff was about to leave after an hour or so of picking, the overseer told him to pick all remaining cherries on the outside of the limbs. Accordingly, plaintiff placed the ladder along the limbs, climbed up, and “had been up there probably 15 or 20 seconds when the ladder tipped over right from under” him. A protruding bolt on a brace cut his body severely. Plaintiff’s essential claim of negligence is in furnishing him a ladder of unsafe, defective design and construction. There is no claim that the ladder had fallen into disrepair; the theory of plaintiff is that the original construction was such that the platform was unstable notwithstanding its outward appearanee of safety. To prove this point, plaintiff, an attorney, and an engineer secretly entered defendant’s orchard several months after the accident, and they measured and photographed a ladder found there which is claimed to be exactly like the one from which plaintiff fell. Prom the measurements then taken, a model was constructed by a carpenter and admitted in evidence over objection. The engineer drew a diagram of the ladder, and his expert opinion and that of another engineer were based on the diagram and model. The essence of their opinion *593 was that the ladder was so constructed that there were several points on the platform which were outside the range of stability, and that if a man placed his weight on any of these points, the ladder would tip over. It appears that there was a failure to take the measurement of the angle formed by the front leg and the platform of the ladder examined on defendant’s premises, and the spread of the model ladder was not as wide as that of the ladder in the orchard. The trial court overruled defendant’s objection to the introduction of the model on the ground that without the measurement of the angle the model could not be an accurate replica, and he denied a motion to strike the testimony of the experts who based their opinion on an examination of the model. He also reserved decision on defendant’s motion for-directed verdict based on the claim that without this measurement negligence had not been proved. The jury returned a verdict for plaintiff, the amount of which is conceded to be reasonable if plaintiff is entitled to recover. The trial court entered judgment for defendant notwithstanding the verdict on the ground that the model was secondary evidence, and that it was inadmissible because plaintiff failed to account for the absence of the original or give notice to produce it, and that this was fatal to recovery. Both parties claimed an appeal, but defendant in its brief stated that it formally abandoned all cross-errors and limited the reviewable questions to those which ‘ ‘ determine the sufficiency or insufficiency of the evidence presented in support of appellant’s' own theory.” Defendant admits in its brief that it “at no time relied upon the best evidence rule in objecting to the admission of the model ladder,” but that its *594 objection was primarily directed to the complete lack of proof justifying expert testimony of unsafe design from the model. Defendant first objected to the testimony of the expert witnesses on the ground that it was based on completely inaccurate and incompetent facts. It insisted that there was no competent testimony to show that the ladder examined in the orchard months after the accident was the very ladder, or an exact duplicate of the ladder from which plaintiff fell, and that there was no way of telling what was the angle formed by the front leg and the platform of the original ladder. The model was at first used as “only an illustration” to aid the witnesses. When it was formally offered in evidence, defendant objected because of its inaccuracy in portraying the original. The trial court took this preliminary question under consideration and later ruled that while there was no determination by plaintiff of the angle between the front leg and the platform, there was testimony that the outside limit of any variance would be slight and not such as to warrant his exclusion of the model. His conclusion was that it was for the • jury to determine whether the variance affected the stability of the ladder. The jury found, in answer to a special question, that plaintiff “fell from a ladder identical within practical limits with the model he brought into court as to height, platform size and angle between platform and stiles.” We must first determine whether there was sufficient evidence of faulty construction to warrant the jury in finding for plaintiff on this element of the case. For this present purpose we shall assume that the admission of the model was not in violation of the “best evidence rule.” The problem may be reduced to the inquiry: Since plaintiff failed to get a precise measurement of the angle deemed to be so *595 vital, was there adequate evidence thereof from which the jury could properly find that the platform angle of the original ladder was improper? Defendant argues that plaintiff’s theory is one of latent defect, determinable only upon careful, expert study, or experiment; it further claims that if the defect is not latent, but can be discovered by ordinary means, then plaintiff’s own showing convicts him of contributory negligence. We think there was enough evidence of improper construction to warrant submission of the case to the jury. Plaintiff testified that the ladder from which he fell was identical with the one examined on a later visit to the orchard. On this later visit, plaintiff, an attorney, and an engineer claimed they carefully noted on paper and in their minds the characteristics. True, one measurement, assumed to be vital, was not recorded. There was testimony that any variance would be negligible, and in the opinion of the expert, the basic stability of the model which illustrated his testimony did not differ in any material degree from the examined chattel which is said, even by defendant’s own proofs, to be identical with the one from which plaintiff fell. We do not think there was any error in the use of the model which was not a facsimile in every detail. A photograph or model is used only as a “nonverbal mode of expressing a witness’ testimony” (3 Wigmore on Evidence [3d Ed.], p. 175, § 790), and as a testimonial aid it may often help the jury to understand the evidence “more clearly than they could from the words of any witness” (Bernard v. Pittsburg Coal Co., 137 Mich. 279). The proposed aid must be sponsored by a witness who uses it to relate his personal knowledge or scientific skill and understanding. United States Shipping Board v. The Ship St. Albans, (1931) A. C. 632 (77 A. L. R. 938). The trial court *596 determines, within discretionary limits, the preliminary question of whether the model is a fair representation of the ultimate fact (see Perri v. Tassie, 293 Mich. 464). When the correctness of the illustrative representation is disputed, if there is room for finding in favor of the offering party, the trial court may admit it and submit the question to the jury for ultimate determination. Richmond v. Atkinson, 58 Mich. 413. In the case before us, there was testimony based on personal knowledge to link the model with the ladder measured in the orchard, and the one thus measured was said to have been a facsimile of the one furnished plaintiff. The fact that one angle was not measured does not necessarily preclude the jury from believing the witnesses who stated from memory that the questioned angle on the ladder in court was, so far as their recollection established, the same as the angle on the accused ladder. Failure to measure this one angle was not fatal to plaintiff’s case. Its weakening effect on the claim was for the jury to determine. Likewise, the testimony of the engineer that the ladder he examined was faultily designed was for the jury to weigh along with the facts upon which he based his opinion. The question was left to the jury by a special question submitted by defendant. The jury upheld the similarity of the model with the original-in accordance with the testimony of plaintiff’s witnesses. We think the trial court was in error in granting a judgment notwithstanding the verdict for a supposed violation of the best evidence rule. Defendant concedes that at ho time did it rely on this rule as a ground of exclusion of the model, but it explains that the trial court used this reasoning as a “mere incident” to his conclusion that plaintiff’s model differed from the original in respect to the vital pitch and angular measurements, and that plaintiff’s *597 failure to produce or explain the absence of the original was fatal to recovery. After judgment it was too late under any principle to penalize plaintiff for nonproduction of the original ladder or his unexplained use of evidence of a different character. We need not determine whether failure to give notice to produce an original chattel would be a valid ground for exclusion of the proofs adduced if the question had been properly raised. See Michigan Bankers Ass’n v. Ocean Accident & Guarantee Corp., Ltd., 274 Mich. 470; Elliott v. Van Buren, 33 Mich. 49 (20 Am. Rep. 668); Wuerth v. Frohlich, 251 Mich. 701; Queen v. Francis, (1874) 2 Crown Cases Res. 128 (43 L. J. M. C. 97, 22 W. R. 663, 12 Cox C. C. 612); Lucas v. Williams, (1892) 2 Q. B. 113 (61 L. J. Q. B. 595); McClary v. State, 75 Ind. 260; Clarke v. Robinson, 44 Ky. (5 B. Monr.) 55; Commonwealth v. Pope, 103 Mass. 440; Commonwealth v. Welch, 142 Mass. 473 (8 N. E. 342); State v. McAfee, 148 Mo. 370 (50 S. W. 82); People v. Fernandez, 35 N. Y. 49; Heneky v. Smith, 10 Ore. 349 (45 Am. Rep. 143); 3 Wigmore on Evidence (3d Ed.), p. 320, § 1181; 1 Chamberlayne, The Modern Law of Evidence, pp. 621-624, §§ 482, 483; 3 Jones, Commentaries on Evidence (2d Ed.), p. 2581, § 1420; Taylor, Evidence (10th Ed.), §555; cf. Chenie v. Watson, (1797) Peake Add. Cas. 123 (170 Eng. Rep. 217). Likewise there is no need to decide whether the trial court in the exercise of his discretion might require production of uninscribed real evidence (Clarke v. Robinson, supra; Wigmore, op. cit., §1181). If the trial court ruled as he did because he felt the proofs were inadequate to establish negligence as a matter of law, he was wrong for the reasons previously discussed; if he was attempting to exercise a judicial discretion by insisting upon a higher quality of probative proof, the discretion was exercised too late. *598 We are much impressed with defendant’s claim that, despite the verdict of the jury, the tipping of the ladder resulted from plaintiff’s own carelessness, but we are constrained to hold that the issue was properly submitted to the jury. It is our province as judges to determine whether there is room for the verdict, and at this point our inquiry must end, even though as triers of the facts we would be impelled to reach a contrary conclusion. From the evidence of the experts that there was a latent defect in the construction of the ladder supplied plaintiff, we cannot say as a matter of law that the circumstances were such that plaintiff was bound to anticipate or discover that there was or might be any such defect in the short time he was to use the article. At least there was room for the jury to find that plaintiff exercised the degree of care required of him for his own safety. Etel v. Grubb, 157 Wash. 311 (288 Pac. 931). The cases of Kelley v. Brown, 262 Mich. 356, and Nichols v. Bush, 291 Mich. 473, do not support defendant’s contention that plaintiff was contributorily negligent as a matter of law. In neither case was there any proof of negligence on the part of defendant in supplying an improperly designed or out-of-repair ladder. Where there is such evidence of defendant’s negligence, and the circumstances are such that the infirmities are not readily discoverable, the question of the user’s contributory negligence may properly be submitted to the jury. Etel v. Grubb, supra. The trial court erred in entering judgment for defendant notwithstanding the verdict. The judgment is reversed, and a judgment shall be entered on the verdict, with costs to plaintiff. Bushnell, C. J., and Chandler and McAllister, JJ., concurred with Butzel, J.