
    The Cincinnati, Hamilton & Dayton Railway Co. v. De Onzo.
    
      In action for personal injuries — Not error for court to admit in evidence photograph and diagram, when.
    
    1. It is not error for the court, on the trial of a cause, to admit in evidence a photograph which appears to have been accurately taken, and is proven to be a correct representation of the subject in controversy which cannot itself be produced, or of some subject incident to it, and is of such a nature as to throw light upon the disputed point.
    2. At the trial of an action for personal injuries wherein it becomes pertinent for the plaintiff, in order to make out his case, to prove his ability, prior to the accident which resulted in his injury, to perform certain difficult feats of personal agility and skill, and oral testimony has been given tending to describe such feats, it is not error for the court to admit in evidence pictures or diagrams which are proven to correctly represent the feats and are calculated to enable the jury more clearly to understand and apply the oral evidence.
    (No. 13302
    Decided November 12, 1912.)
    Error to the Circuit Court of Butler county.
    The action below was to recover for personal injuries claimed to have been sustained by the defendant in error, De Onzo, while a passenger on the railroad of the plaintiff in error by reason of the negligence of the Company. A verdict for De Onzo was returned by the jury, and a judgment thereon rendered which was affirmed by the circuit court. The Company asks a reversal.
    Facts are stated in the opinion.
    
      
      Messrs. Shotts & Millikin, for plaintiff in error.
    The photograph was used as primary evidence of the condition of the leg and tendon at the time of the alleged injury, and as a substitute for oral testimony, and was not used for any of the purposes for which photographs, maps or diagrams are usually competent.
    Photographs have been permitted to be used in evidence in the absence of the originals, and in case of the inability to produce the original, or as aids in the investigation, as a map or document, and when they serve to explain or illustrate and apply the testimony, and they are often useful to enable courts and juries to comprehend readily the question in dispute as affected by the evidence, but we think that the use of photographs has always been considered as secondary or demonstrative evidence, the latter ,in the sense that the photograph is competent whenever it is important that the place, object, person or thing be described to the jury. Gilbert v. West End St. Ry. Co., 160 Mass., 403; Dederichs v. Salt Lake City Ry. Co., 14 Utah, 137, 35 L. R. A., 805.
    It was not shown at the trial that oral evidence could not be produced to show the condition of the tendon prior to the accident, but we contend that even if oral testimony could not be procured that the photograph was not competent evidence. Baxter v. C. & N. W. Ry. Co., 104 Wis., 307.
    It was not necessary for the picture to be used as a non-verbal mode of expressing De Onzo’s testimony, because this could be shown by direct proof. It was not used, to more clearly convey to the minds of the jury a condition, nor was it necessary to use it to describe the condition of the tendon. Cirrelo v. Met. Express Co., 88 N. Y. Supp., 932.
    The condition of the leg at the time of the accident could be given by a verbal description, and there was nothing to justify the admission of the photograph, and the only purpose it subserved was to prejudice the jury. Selleck v. Janesville, 104 Wis., 570; 1 Wigmore on Evidence, Secs. 790, 792; State v. Matheson, 130 Ia., 440, 114 Am. St. 440, n.; Baustian v. Young, 152 Mo., 317, 75 Am. St., 474, n.
    The court of common pleas erred in admitting in evidence the different pictures or cuts marked exhibits 1 to 7, inclusive.
    Where a document taken from a book is introduced, the jury must not be told that it was found in any book, or was gotten out by a distinguished doctor or a man of science, for that will lead the jury to attach undue importance to it. Ordway v. Haynes, 50 N. H., 159.
    It is not error to exclude from the jury a document when no drawing is necessary to illustrate the fact ascertained. Thrall v. Smiley, 9 Cal., 529; 4 Ency. of Evidence, 638; Lake St. El. Rd. Co. v. Burgess, 13 Am. Neg. Rep., 507.
    If the pictures were used for the purpose of refreshing the memory, and they served that purpose, and recalled to his mind a description of his feats, we do not think it can be contended that the pictures could themselves be introduced in evidence. Jones on Evidence, Sec. 883.
    
      Messrs. Andrews, Harlan & Andrews and Mr. David Pierce, for defendant in error.
    Opposing counsel contend that photographs are not admissible in evidence. In their brief Ohio authorities on this point are conspicuous by their absence. We will cite some: Hohly v. Sheely, 21 C. C., 484, 11 C. D., 678; 1 Thompson on Trials (2 ed.), Sec. 869; Varner v. Varner, 16 C. C., 386, 9 C. D., 273; Tish v. Welker, 5 Dec., 725, 7 N. P., 472.
    Photographs properly verified are admissible to establish the identity of persons, etc. 9 Ency. of Evidence, 772.
    Photographs properly verified as correct representations are generally admissible to show the nature and extent of personal injuries. 9 Ency. of Evidence, 774; Toledo Trac. Co. v. Cameron, 137 Fed. Rep., 48; Miller v. Minturn, 73 Ark., 183, 83 S. W. Rep., 918; People’s Gas, Light & Coke Co. v. Amphlett, 93 Ill. App., 194; Reddin v. Gates, 52 Ia., 210, 2 N. W. Rep., 1079; Jameson v. Weld, 93 Me., 345, 45 Atl. Rep., 299; Cooper v. St. Paul City Ry. Co., 54 Minn., 379, 56 N. W. Rep., 42; Geneva v. Burnett, 65 Neb., 464, 91 N. W. Rep., 275; Carlson v. Benton, 66 Neb., 486, 92 N. W. Rep., 600; Alberti v. N. Y. L. E. & W. Rd. Co., 118 N. Y., 77, 23 N. E. Rep., 35, 6 L. R. A., 765; Davis v. Seaboard Air Line Ry., 136 N. Car., 115, 48 S. E. Rep., 591.
    The above authorities are all cited under note 13 in 9 Ency. of Evidence, 774.
    We claim that the admission of the photograph was within the discretion of the trial judge, and that the court’s action is not subject to exception.
    Plaintiff in error’s counsel make a second contention to the effect that the court erred in admitting cuts or diagrams, being exhibits 1 to 7, inclusive, which show and illustrate some of the feats William De Onzo performed, among them being his most difficult feats. The defendant reserved exceptions. These pictures were in a magazine. They were handed De Onzo and he described his feats from them.
    We cite 4 Ency. of Evidence, 638 et seq., and cases there cited, on the admission of diagrams as independent evidence.
   Spear, J.

Two questions only are presented by the record. They relate to alleged error in the admission of evidence, one respecting a certain photograph and the other certain pictures.

De Onzo is by profession an athlete or acrobat, his specialty being what he terms barrel jumping. His evidence given at the trial tended to show that he was a man at the time of the accident of about thirty-five years of age, a public performer in theaters, in perfect health and in every way capable of performing the feats upon the stage called for by his profession. He had performed successfully in the chief cities of the United States and of Europe, and before many of the members of the royal families of England and on the continent, and had received large pay. Since the injury he cannot perform any of the more difficult and attractive feats, and his earnings from such minor feats as he can perform are exceedingly small.

The accident occurred on December 26, 1901, by reason of a collision between a freight train and a passenger train on The Cincinnati, Hamilton & Dayton Railway, on which De Onzo was a passenger on his way from Hamilton to Cincinnati. The principal injury complained of was to his left leg. In examining the plaintiff at the trial respecting his injury, and after the witness had testified as to certain lumps. and swellings then appearing on the left leg and which he stated were not there before the accident, his counsel produced a photograph purporting to give an accurate representation of the plaintiff's legs before the accident. The plaintiff then testified that the photograph was a correct picture of himself before and at the time of the accident, and truly represented his legs. The photograph was then offered in evidence. Objection was made especially on the ground that counsel did not know when it was taken. The witness was then inquired of as to when the picture was taken, and after some answers indicating uncertainty of recollection, testified that it was taken at Kansas City in the year 1901, and close onto September, being about three months prior to the accident. The objection of counsel was overruled and the photograph admitted, to which counsel for the Company excepted. The special objection here urged is that the photograph was taken at too remote a time, and that the condition of the leg being a proper subject for oral description, and being of a nature easily described by oral testimony, a picture of it could not aid the jury nor for any purpose be competent.

We do not consider the objection well taken. The introduction of photographs in evidence at the trial of causes is quite familiar practice in Ohio courts and has been for many years, but we are not aware of any reported case in this court which undertakes to declare any principle of law upon the subject. This may be because no serious objection has been taken to that mode of making proof, the general practice having been acquiesced in. It has been thought proper for courts to take judicial notice that photography, being the art of producing and preserving representations of persons, places and things by the action of light upon a prepared surface, may become a valuable aid in the development of facts before our legal tribunals, and this rule generally prevails. From many authorities, decisions and textbooks, and from the practice of courts in this state and elsewhere, it may be stated as a general rule that photographs are admissible in evidence when they appear to have been accurately taken, and are proven to be correct representations of a subject in controversy, which subject cannot itself be produced, or of some subject incident to it, and also of such a nature as to throw light upon the disputed point. If the photograph has been verified as above indicated, it is a proper item of evidence to go to a jury. Necessarily some discretion is reposed in the trial court in passing upon the preliminary proof, and determining whether or not the photograph has been sufficiently verified and is pertinent to the issue, but such discretion is a reasonable one and not to be exercised arbitrarily. The record in this case indicates that the court’s discretion had been reasonably exercised.

Nor was the photograph used as primary evidence. The plaintiff had testified to the condition of his limbs prior to the accident, but the limbs themselves could not be exhibited as of that time. Hence the photograph served to corroborate the testimony of the witness and more fully show to the jury the contrast between the injured leg as it had been and as it then was shown to the jury.

As to the pictures. The pictures offered were in a magazine. While De Onzo was testifying as to the feats he performed he was shown the pictures and inquired of if they correctly represented the tricks he had described. The ability to perform such feats was of itself a valuable acquirement. It was not entirely easy to effectively describe b)'’ oral testimony the exact performance which De Onzo had been able to give, and these pictures afforded a representation of the difficult feats and tended to enable the jury more clearly to understand and apply the oral evidence; They were thereupon torn from the magazine and given in evidence. We do not think this was error.

Many authorities have been cited and consulted. They will be found, pro and con, in the reporter’s notes. We do not regard it necessary to repeat them here.

The judgments below will be affirmed.

Judgment affirmed.

Davis, C. J., Shaucic, Johnson, Donahue and O’Hara, JJ., concur.  