Honeycutt v. Cherokee Brick Co.

Broghen, J.

Certain photographs of the machine, upon which it was alleged the deceased was killed, and the surroundings and attachments thereof were offered in evidence. There was evidence tending to show *557 tbat these photographs correctly represented the machine and the surroundings, and they were received in evidence generally and as substantive evidence, over the objection of defendant.

The courts are not in accord upon the question of the admissibility of photographs. In this State photographs, taken two years or more after an injury, and where there was evidence of changes in the situation, were held inadmissible either as substantive evidence or otherwise.

Hampton v. R. R., 120 N. C., 534 , 27 S. E., 96 .

Thereafter, in Pickett v. R. R., 153 N. C., 149 , 69 S. E., 8 , the rule with respect to the competency of photographs was thus expressed by Walker, J.:

“The court, over defendant’s objection, permitted these photographs to be used for the purpose of enabling a witness to explain his testimony as to what effect the diversion of the water had upon the land. Preliminary proof was heard as to the correctness of the photographs and as to the time and manner in which they were made. There was no error in admitting them for the purpose indicated.”

Again, in S. v. Jones, 175 N. C., 709 , 95 S. E., 576 , the Court said: “The exceptions as to the use of the photograph for the purpose of allowing one of the witnesses to illustrate or explain his testimony is not well taken. The witness was endeavoring to show how the parts of the distillery which were found in the house might be assembled so as to make a complete apparatus for manufacturing liquor. He could use a diagram for the purpose, and why not a photograph? The trial judge excluded it for any other purpose, and distinctly charged the jury to disregard it, except for the indicated purpose and not to use it as substantive testimony.”

In Elliott v. Power Co., 190 N. C., 62 , 128 S. E., 730 , Varser, J., writing the opinion, said: “All of these pictures were used to explain the witnesses’ testimony to the jury. It was not error for the court to allow the jury to consider the pictures for this purpose and to give them such weight, if any, as the jury may find they are entitled in explaining the testimony. The charge shows plainly that the court was careful to apply this rule to use of the pictures offered by either side, and when the charge is considered contextually, it appears the court was cautioning the jury not to consider pictures not in evidence.”

The principles announced in the foregoing decisions have been consistently recognized and applied.

Hoyle v. Hickory, 167 N. C., 619 , 83 S. E., 738 ;

S. v. Kee, 186 N. C., 473 , 119 S. E., 893 ;

S. v. Mitchem, 188 N. C., 608 , 125 S. E., 190 ;

S. v. Matthews, 191 N. C., 378 , 131 S. E., 743 ;

Kepley v. Kirk, 191 N. C., 690 , 132 S. E., 788 .

Applying the rules established by our decisions, we conclude, and so hold that the admission of the photographs as substantive evidence constituted error.

New trial.