Opinion
September 19, 1923.
September 22, 1923.
Present: RUGG, C.J., BRALEY, DeCOURCY, PIERCE, CARROLL, JJ.
Evidence, Photograph, Chalk.
No prejudicial error is shown in a ruling by a judge, before whom was being tried an action of tort against a town for personal injuries alleged to have been caused by a defect in or want of repair of a public highway, that certain photographs, purporting to show the highway at and near the place where the accident occurred, might be shown to the jury as chalks for the purpose of enabling them to see "the general situation or the general contour of the highway at the time of the alleged accident," the judge stating, "These photographs . . . have no evidential effect as to the alleged defect as claimed by the plaintiff," the photographs, so far as they showed the precise place of the accident, being admissible in the discretion of the trial judge and no prejudicial error appearing from the fact that they showed a near-by part of the highway.
TORT for personal injuries alleged to have been caused to the plaintiff by a defect in or want of repair of a highway in the defendant town. Writ dated May 20, 1921.
In the Superior Court, the action was tried before Thayer, J. The jury found for the defendant. The plaintiff alleged one exception only, which is described in the opinion.
H. Sherman, for the plaintiff.
C. Fairhurst, ( W.A. Davenport with him,) for the defendant.
This is an action of tort to recover damages alleged to be the result of a defect in a highway. Certain photographs were offered in evidence purporting to show the highway at and near the place where the accident occurred. Exception was taken to the ruling that the photographs might be shown to the jury as chalks for the purpose of enabling the jury to see "the general situation or the general contour of the highway at the time of the alleged accident. These photographs . . . have no evidential effect as to the alleged defect as claimed by the plaintiff." So far as the photographs showed the precise place of the accident, they were admissible in the discretion of the court. So far as they showed a near-by part of the highway, there was no prejudicial error. Everson v. Casualty Co. of America, 208 Mass. 214, 219-221.
Exceptions overruled.