Hampton v. Norfolk & Western Railroad

Fürohbs, J.: This is an action for damages against the defendant. The complaint states that the injury complained of was received in 1894, but it does not appear from the evidence whether it was in 1894 or 1895. The defendant’s road runs .through the city of Winston, along Tenth street, which had been excavated to a depth of about 30 feet at the point where the injury was received. It is in evidence that the plaintiff, on the night of the injury, went to Watlington’s store, which fronts on Liberty street, and purchased about 60 pounds of groceries, put them in a bag and started home, and by some means missed his way. The night being dark, he fell into this deep cut and received the injury complained of. It appears that the rear end of Watlington’s store is about 30 feet from Tenth street, but the plaintiff testified that he had gone about 150 yards before he fell into the cut — thus traveling nearly parallel with defendant’s road. He also testified that he-struck a path, after leaving the store, which he followed untilhe fell into the cut; that it was so dark he could not see the path, but he could feel it, so as to Know he was in a path. Tne plaintiff alleged that the injury was caused by the defendant’s negligence in not fencing, and keeping fenced, this deep and dangerous out in a city like Winston, while the defendant alleged that it was a back lot where the plaintiff fell, fenced on the front by the owner and that the [536] defendant was guilty of no negligence in not fencing it. The defendant also denied that there was any path running through s3id lot, as the plaintiff had testified. Upon these points there was much evidence on both sides. Watlington and others testified that there was no fence, and Watlington also testified that he had usually kept some empty barrels standing along the street to prevent persons going from the store back to the defendant’s road, but he had sold them a short time before and the way was open from Liberty street hack to defendant’s road. B. F. Oopple, J. W. Stout, A. H. Gilliam and Watling-ton testified that there was a path, as testified to by the plaintiff. While A. W. Morton and F A. Nading testified that they lived near by and “never knew of any pass way,” &c., and L. Nor veil, and probably others, testified that there was a wire fence at Watlington’s store at the time of the injury. Without undertaking to give all the evidence, we have stated it sufficiently to present the contention of the parties. The defendant offered a map on the trial, made by one of the defendant’s employees, which was allowed to be used without objection, though it was made by defendant’s employees and not under order of court. The defendant also, during the trial, offered in evidence a photograph, which was objected to, and the defendant introduced A. J. Farrell, who testified: “1 am a photographer. I took the pictures last Friday; they are correct as the ground view is.” Ruled out and the defendant excepted. This trial took place in February of this year (1897), and there is evidence showing there have been changes made in the fencing since the injury was received, and that the defendant has since enclosed this cut. This is the only exception taken during the trial. But the defendant asked several written instructions, which [537] were not given And tbe defendant, after appealing from tbe judgment in favor of the plaintiff, assigns the following grounds of error: 1. “The refusal of his Honor to allow the photographs offered to be used as evidence. ’ ’ 2. “The refusal of his Honor to give the special instructions prayed for by the defendant.” 3. “The instructions as given were calculated to mislead the jury, and are erroneous in law.” Neither of these assignments can be sustained. The photographs were not evidence per se. They did not represent the plaintiff, the fall or the injury. At most, they could only supply the place of an unauthorized map, which is not evidence and which the court may refuse to allow in evidence. Burwell v. Sneed, 104 N. C., 118. And when such maps are allowed, they are not evidence, and can only he used by a witness to explain his evidence to the jury. Dobson v. Whisenhant, 101 N. C., 647. There was no such purpose as this manifested in this case. It seems to have been the idea of the defendant that they" were, of themselves, substantive evidence. If we are in error in this, it is because the defendant has failed to make manifest anything to the contrary. We have no doubt but what a photograph, taken soon after the occurrence, might be used, as an unauthorized map may be used. Riddle v. Germanton, 117 N. C., 387. But, where it appeared to the court that the photograph had been taken two years or more after the injury was received, and where there' was evidence of changes in the situation, and where it was material to establish a path (as in this case) as existing two years ago, but which was necessarily effaced by the lapse of time, the ground soon after the injury was received having been fenced up, and the defendant having the use of a map of its own m [538] which was shown to have been made soon after the plaintiff was injured,- it seems to us to have been altogether proper to exclude the photograph, whether introduced as original, independent evidence or as an unauthorized map. The second assignment cannot be sustained. These prayers are long, confused and argumentative — each containing some proposition that the court could not properly give. State v. Neal, at this term ; Railroad v. Wainright, 25 S. E. Rep., 622 (97 Ga.). The third assignment is what is termed a “broad-side” exception to the charge, without pointing any error, and cannot be sustained. This has been so often decided by this court that it seems to ns, if the learned counsel had thought there w as error in the charge, they would have complied with this oft-repeated rule. Barcello v. Hapgood, 118 N. C., 712; State v. Downs, 118 N. C., 1242; McKinnon v. Morrison, 104 N. C., 354, and cases cited in Clark’s Code (2nd Ed.), pp. 382, 383. There is no error and the judgment is affirmed.