Mangum, Charles S., Jr.

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Evidence -- Admissibility of Experiments

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NORTH CAROLINA LAW REVIEWVolume 9 | Number 4 Article 126-1-1931Evidence -- Admissibility of ExperimentsCharles S. Mangum Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationCharles S. Mangum Jr., Evidence -- Admissibility of Experiments, 9 N.C. L. Rev. 453 (1931).Available at: http://scholarship.law.unc.edu/nclr/vol9/iss4/12NOTES AND COMMENTSEvidence-Admissibility of Experiments.In an action for wrongful death of a small child, plaintiff offeredevidence that -by an experiment it was found that a child dressed indeceased's clothing could be seen from locomotive for a distance of600 to 1,200 feet from place where the accident occurred. Held,inadmissible, since it was not shown how or when deceased reachedthe track or where she had been immediately before the accident.1Experimental evidence may be introduced if circumstances areshown to be the same2 or essentially the same3 at the time of the eventand of the experiment, and the witnesses do not have to be expertsexcept where technical knowledge is required.4 The burden of prov-ing that the circumstances were the same is upon the proponent,5after laying the foundation.6 Time, 7 place,8 and the seasons 9 maybe considered in determining this similarity. Admissibility of suchevidence is discretionary with the trial judge,' 0 and subject to reviewonly in case of abuse ;11 but trial judges are cautioned by expressions'Neice v. Norfolk and Western R. R. Co., 154 S. E. 563 (Va. 1930).'Langham v. Chicago R. I. & P. Ry. Co., 197 Iowa 1118, 198 N. W. 525(1924) ; Going v. N. & W. R. R., 119 Va. 543, 89 S. E. 914 (1918) ; Owen v.Delano, 194 S. W. 756 (Mo. App. 1017). Cf. State v. Graham, 74 N. C. 646(1876), and Cox v. R. L, 126 N. C. 103, 35 S. E. 237 (1900).'St. Louis I. M. & S. Ry. Co. v. Kimbrell, 117 Ark. 457, 174 S. W. 1183(1915) ; Arrowood v. R. R., 126 N. C. 629, 36 S. E. 151 (1900) ; Zimmer v.Fox, 123 Wis. 643, 101 N. W. 1099 (1905).'Arrowood v. R. R., supra note 3. Bystander can testify. Hallawell v. OilCo., 36 Cal. App. 672, 173 Pac. 177 (1918). Fact that person making experi-ments knew what he was looking for does not render evidence incompetent.Henderson v. R R., 132 Va. 297, 111 S. E. 277 (1922).'Riggs v. M. St. Ry. Co., 216 Mo. 304, 115 S. W. 969 (1909). But the dutyof going forward with the evidence may shift, as where circumstances make aprima facie case. May Dept. Stores v. Runge, 241 Fed. 575 (C. C. A. 8th,1917).' Omaha St. Ry. Co. v. Larson, 70 Neb. 591, 97 N. W. 825 (1903) ; N. & W.Ry. v. Sollenberger, 110 Va. 606, 66 S. E. 726 (1909).Brewing Co. v. Ice Co., 156 N. Y. S. 410 (1915); Dow v. Bulfinch, 192Mass. 281, 78 N. E. 416 (1906)."Henderson v. R. R., supra note 4. The place where the experiment ismade is immaterial, as long as conditions are essentially the same. Olivarosv. San Antonio Ry. Co., 77 S. W. 981 (Tex. Civ. App. 1903).'Range Co. v. Vanderford, 217 Ala. 342, 116 So. 334 (1928)." Beckley v. Alexander, 77 N. H. 255, 90 At]. 878 (1914) ; May Dept. Storesv. Runge, supra note 5. This discretion does not extend to preliminary proofof similarity of conditions. Amsbary v. R. R., 78 Wash. 379, 139 Pac. 46(1914)." Augusta Ry. & Electric Co. v. Arthur, 3 Ga. App. 513, 60 S. E. 213(1908) ; City of Manchester v. Beavers, 38 Ga. App. 337, 144 S. E. 11 (1928) ;Konald v. Rio Grande Ry. Co., 21 Utah 379, 60 Pac. 1021 (1900). The evi-dence may be so clearly relevant and material as not to be within the discretionof the trial judge to receive or reject it. May Dept. Stores v. Runge, supranote 5.THE NORTH CAROLINA LAW REVIEWin at least two opinions to be wary of permitting experiments at thetrial itself, which though permissible when made outside, might con-fuse the jury when made in court.12Experiments are most often employed in cases involving acci-dents caused by railroads, automobiles, etc.,' 5 cases involving defectsin appliances or in construction,14 cases in which chemical analysesfigure, 15 cases involving the range of sight and hearing,' 0 and in caseswhere it is necessary to determine personal responsibility for death.17The following cases illustrate the application of the above prin-ciples and the difficulty of simulating actual conditions in an experi-ment: Defendant was indicted for rape of a young girl in a darkroom which she shared with her mother. The mother testified thatin the struggle defendant fired a pistol and that she recognized himby the flash. Defendant insisted that the jury be instructed to retireinto a darkened room and ascertain whether defendant could be rec-ognized by the gun-flash. Held, Not allowed, since the same cir-cumstances could not be reproduced as a foundation for the experi-ment.' 8 In another case, a suit for divorce, defendant offered evi-'Jumpertz v. People, 21 Ill. 375 (1859); Spires v. State, 50 Fla. 121, 39So. 181 (1905).'Henderson v. R. R., supra note 4 (railroad); Panhandle R. R. v. Hay-wood, 227 S. W. 347 (Tex. Civ. App. 1921) (railroad); Truva v. Rubber Co.,124 Wash. 445, 214 Pac. 818 (1923) (auto); McCarthy v. Curry, 240 Mass.442, 134 N. E. 339 (1922) (machinery)." Boston Hose and Rubber Co. v. Kendall, 178 Mass. 232, 59 N. E. 657(1901) (explosion of boiler); Bona v. Auto. Co., 137 Ark. 217, 208 S. W. 306(1919) (defects in steering-gear); Smith's Adm'x v. Electric Co., 164 Ky. 46,174 S. W. 773 (1915) (defect in transformer); Kimball Bros. Co. v. Gas andElectric Co., 141 Ia. 632, 118 N. W. 891 (1908) (motor test); Leonard v.Southern Pacific Co., 21 Ore. 555, 28 Pac. 887 (1892) (defects in bridge).Guinan v. Lasky Corporation, 167 N. E. 235 (Mass. 1929) (explosivequality of motion picture film) ; Heal v. Fertilizer Works, 124 Me. 138, 126At. 644 (1924) (quality of fertilizer); Hershiser v. Railroad, 102 Neb. 820,170 N. W. 177 (1918) (blood test); Graustein v. Wyman, 250 Mass. 290, 145N. E. 450 (1924) (Babcock test) ; Standard Oil Co. v. Reagan, 15 Ga. App.571, 84 S. E. 69 (1915) (distinguishing between gasoline and kerosene)." Meaney v. Power Co., 282 Pac. 113 (Ore. 1929) (visibility); Klenk v.Klenk, 282 S. W. 153 (Mo. App., 1926) (visibility); Nelson v. R. R., 208Mass. 159, 94 N. E. 313 (1901) (surveying); Harper v. Holcomb, 146 Wis.183, 130 N. W. 1128 (1911) (shooting by mistake for deer); Kansas CityR. R. v. Hall, 152 S. W. 445 (Tex. Civ. App. 1912) (visibility of coal chute);Lasityr v. City of Olimpia, 61 Wash. 651, 112 Pac. 752 (1911) (lightingeffects); Smith v. Insurance Co., 234 Mich., 119, 208 N. W. 145 (1926) (dis-tance person may be recognized at night) ; Gambrill v. Schooley, 95 Md. 260,52 Ati. 500 (1902) (distance voice will carry)." Huestis v. Aetna Life Insurance Co., 131 Minn. 461, 155 N. W. 643 (1915)(experiment with gun); Tackman v. Brotherhood, 132 Ia. 64, 106 N. W. 350(1906) (experiments with rope) ; Jumpertz v. People, supra note 12 (experi-ment with door hooks)."Spires v. State, supra note 12.NOTES AND COMMENTSdence that plaintiff's stenographer, at her desk in adjoining room, sawa woman sitting in plaintiff's lap. Plaintiff offered as evidence anexperiment to show that from where she was sitting the stenographercould not have seen him. Held, Inadmissible, since it was not provedthat the furniture was in the same position as at the time of theevent.1 9 In an action for the wrongful death of a child in a railroadaccident, plaintiff offered an experiment in evidence to show thatdefendant's engineer, when he saw an object upon the track, shouldhave recognized it as a child from a point distant 1,200 feet. Held,Admissible, because, in the experiment, it was shown that the cir-cumstances upon which the evidence was predicated could be sub-stantially reproduced, since it was proved that the engineer actuallysaw the child on the track.20In the principal case, the necessary foundation for the experi-ment could not be laid and, therefore, the ruling in the case wascorrect.CHARLES S. MANGUM, JR.Landlord and Tenant-Effect of Consent to One Assignment ofLease on Condition Not to Assign-Dumpor's Case.A 1931 opinion1 of the Supreme Court has ushered onto theNorth Carolina juristic stage the English case of Dumpor v. SymnW2decided in 1603. In Dumpor's Case a condition that the lessee andhis assigns would not convey the lease without special license fromthe lessor was held to have been extinguished, when one such licensewas given. This holding is obviously contrary to a common senseinterpretation of the given transaction. The court based its decision.on precedent, but it has been shown that the authorities were invokedby false analogy.3 Dumpor's Case is no longer the law in England,4but its doctrine continues to prevail in several American jurisdic-tions.5"Kuenk v. Klenk, supra note 16.Henderson v. R. R., supra note 4.'Childs v. Warner Bros. Southern Theatres, Inc., 200 N. C. 333, 156 S. E.923 (1931).24 Coke 119 (1603).'Dumpor's Case (1873) 7 AM. L. Rnv. 616, 623.' The following statutes nullified the rule in Dumpor's case: 22 and 23Vicr. c. 35, §1 (1859) and 23 and 24 Vicr. c. 38, 6 (1860).'Reid v. Weissner & Sons Brewing Co., 88 Md. 234, 40 Atl. 877 (1898);Pennock v. Lyons, 118 Mass. 92 (1875) ; Aste v. Putnam Hotel Co., 247 Mass.147, 141 N. E. 666 (1923) ; Murray v. Harvey, 56 N. Y. 337 (1874) ; see Ger-man Am. Savings Bank v. Gollmer, 155 Cal. 683, 102 Pac. 932, 934 (1909).

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Evidence -- Admissibility of Experiments

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