Blizzard v. Fitzsimmons, 196 Miss. 484, 10 So.2d 343; Bufkin v. Louisville N.R. Co., supra; Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292; 38 Am. Jur., Negligence, Sec. 64 p. 717; Bailey, Personal Injuries (2d ed.), p. 148. IV. Erroneous evidentiary rulings of the trial court singularly and cumulatively so prejudiced the defendant in the presentation of his case that on this basis alone, reversal of this case is compelled. Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Faught v. Washam, 329 S.W.2d 588; Gulf, M. O.R. Co. v. Golden, 221 Miss. 253, 72 So.2d 44; Knox v. Granite Falls, 245 Minn. 11, 72 N.W.2d 67; Malone Freight Co. v. Tutton, supra; Simon v. Dixie Greyhound Lines, supra; Annos. 53 A.L.R. 2d 1091, 163 A.L.R. 122; Wigmore, Evidence (3d ed.), Sec. 1013.
However, a pioneer scholar and textbook authority in the field of photographic evidence appropriately points out that "the vital, mirror-like appearance of a photograph makes it capable of inciting passions and prejudices of a jury" and that "(t)he danger in this respect increase as photography improves" [Scott on Photographic Evidence (1942), § 601, loc. cit. 475]; and, courts dealing with colored photographs have sounded a caveat that "such evidence should be faithful and accurate" [People v. Moore, 48 Cal.2d 541, 310 P.2d 969, 972] and that "caution must be exercised in admitting colored photographs which may tend to exaggerate the seriousness and extent of wounds or burns." Knox v. City of Granite Falls, 245 Minn. 11, 72 N.W.2d 67, 73, 53 A.L.R.2d 1091. Knox v. City of Granite Falls, 245 Minn. 11, 72 N.W.2d 67, 72-73(9-10), 53 A.L.R.2d 1091; Roring v. Hoggard, Okl., 326 P.2d 812, 815(7); Anderson v. Evans, 164 Neb. 599, 83 N.W.2d 59, 68 (21); State v. Bischert, 131 Mont. 152, 308 P.2d 969, 972-973(6, 7); State v. Huff, 14 N.J. 240, 102 A.2d 8, 13(15); Commonwealth v. Makarewicz, 333 Mass. 575, 132 N.E.2d 294, 299(4); State v. Kuhnhausen, 201 Or. 506, 272 P.2d 225, 246(19); State v. Nunn, 212 Or. 546, 321 P.2d 356, 366(16); State v. Michel, 225 La. 1040, 74 So.2d 207, 215(24), affirmed 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83, rehearing denied 350 U.S. 955, 76 S.Ct. 340, 100 L.Ed. 831; State v. McMullan, 223 La. 629, 66 So.2d 574, 575(1); State v. Iverson, 77 Idaho 103, 289 P.2d 603, 607(11); Armijo v. People, 134 Colo. 344, 304 P.2d 633, 638(10); People v. Carter, 48 Cal.2d 737, 312 P.2d 665, 673(9, 10); People v. Moore, 48 Cal.2d 541, 310 P.2d 969, 972(1); People v. LaVerne, 148 Cal.App.2d 605, 307 P.2d 31, 36(8); Fields v. State,
Under Restatement, Torts, § 339, comment e, it is stated that a possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved. See, also, Knox v. City of Granite Falls, 245 Minn. 11, 72 N.W.2d 67, 53 A.L.R. 2d 1091. The knowledge of the inflammable characteristic of gasoline may not have been sufficient to constitute a realization of the full extent of the risk involved.
A photograph may be admitted if its value as evidence outweighs its possible prejudicial effect, or may be excluded if its prejudicial effect may well outweigh its probative value. 29 Am Jur 2d, Evidence, § 787, p 861, citing Knox v. City of Granite Falls (1955), 245 Minn. 11 ( 72 N.W.2d 67, 53 ALR2d 1091). Defendant also puts forth a brief argument that there was insufficient evidence to support a finding of guilt beyond a reasonable doubt.
He misgauged the time and returned near the fire when the explosion took place and caused his injury. It is notable that all these efforts whether prompted by recklessness or bravado were for one purpose — to effect an explosion of this dynamite cap. Certainly, plaintiff realized the danger involved in throwing this cap into the fire because he retreated some fifteen feet from the fire, presumably as a safety precaution. Plaintiff cites and places great reliance on certain Minnesota cases, notably, Knox v. City of Granite Falls, Minn., 72 N.W.2d 67; Ekdahl v. Minnesota Utilities Co., 203 Minn. 374, 281 N.W. 517; Schorr v. Minnesota Utilities Co., 203 Minn. 384, 281 N.W. 523; Erickson v. W.J. Gleason Co., 145 Minn. 64, 176 N.W. 199. These cases, however, are all readily distinguishable on their facts. For example, in Knox v. City of Granite Falls, supra, the victim was a little girl seven years old who was confessedly a "young child". Ekdahl v. Minnesota Utilities Co., supra, and Schorr v. Minnesota Utilities Co., supra, dealt with electrocution caused by a highly deceptive instrumentality, and the cases are in no way comparable in their facts with the present case.
The situation here is distinguishable from those cases where dangerous conditions could be replaced at slight expense by less hazardous conditions which would serve the same function. See, for example. Knox v. City of Granite Falls, 1955, 245 Minn. 11, 72 N.W.2d 67, 53 A.L.R.2d 1091 (open flame flares at street excavation where battery operated flares were available); Kahn v. James Burton Co., 1955, 5 Ill.2d 614, 126 N.E.2d 836 (lumber stacked in unstable manner, with pieces to be used first (heavier pieces) on top); Hyndman v. Pennsylvania Railway Co., 1959, 396 Pa. 190, 152 A.2d 251 (inadequately protected high voltage electrical transformer). The rule of section 339 does not afford plaintiff a basis for recovery.
Technical imprecision in instructions do not require reversal if the charge was sufficient to inform the jury of the findings required in the setting of the evidence. Eliason v. Production Credit Association, 259 Minn. 134, 138, 106 N.W.2d 210, 213 (1960); Knox v. City of Granite Falls, 245 Minn. 11, 18, 72 N.W.2d 67, 72 (1955); Anderson v. Hegna, 212 Minn. 147, 152, 2 N.W.2d 820, 823 (1942). 4. Appellants claim the trial court erred in allowing Ronald Kubes, an employment services supervisor with the Department of Economic Security, to testify "unequivocally" that Paul Jones would finish college successfully and be able to get employment with no wage loss. An examination of the transcript of Kubes testimony does not reveal he "unequivocally" stated that Jones would finish college.
The Montgomery Ward facility situated to the southwest of the intersection is not open to the public and the parking area near it is for the convenience of its employees or others having specific business there. The situation, therefore, is not one calling for a special degree of alertness in anticipation of the presence of small children. See, Kachman v. Blosberg, supra; Van Asch v. Rutili, 286 Minn. 9, 174 N.W.2d 101 (1970); Knox v. City of Granite Falls, 245 Minn. 11, 72 N.W.2d 67 (1955); Shawley v. Husman, 247 Minn. 510, 78 N.W.2d 60 (1956). 4. We believe that the instructions given by the trial court with respect to the matter of speed were adequate. It is agreed that the zone in which defendant was driving was a 45-miles-per-hour speed zone.
It is well settled that in personal injury actions photographs are admissible to show the existence and nature of injuries providing the photographs are relevant and accurately portray the injuries at the time they were taken. Knox v. City of Granite Falls, 245 Minn. 11, 72 N.W.2d 67 (1955). Photographs have been admitted in connection with the testimony of the treating physician where they portray the condition which the doctor is attempting to describe.
Even though passion and prejudice are absent, appropriate action may be taken where the evidence does not justify the award of damages. Knox v. City of Granite Falls, 245 Minn. 11, 72 N.W.2d 67 (1955). We have stated that we are reluctant to disturb a verdict as excessive in a case where the amount has the approval of the trial court, but that it does not follow from such reluctance that we should permit all verdicts to stand.