318 DUBOIS— OBSERVATIONS ON THE [April 23, 



were not exaggerated. The point is, that when photographs are 

 shown in support of the verbal testimony even the discriminating 

 mind is apt to be over-persuaded by the mere fact of pictures. Any 

 seeming lack therefore on the part of the picture is subconsciously 

 excused on the ground that a depression of two inches in a pave- 

 ment is necessarily diminished to almost nothing in a photograph. 

 Then the mind rebounds to an exaggeration of the truth notwith- 

 standing the claim that the depression does not exceed two inches. 



Manifestly, the defense has little show in such a case. He can- 

 not prove that the plaintiff did not fall from this cause. His one 

 witness denied the dangerous character of conditions and to us jurors 

 this denial seemed fatuous and partisan. But when I saw the 

 place itself I thought this witness more right than wrong — more true 

 indeed to the moral fact than all the others. 



I am quite sure that had the jury been taken in a body to the 

 actual scene of this accident the outcome would have been different. 

 I could scarcely believe my own eyes. I tried to slip on the curb 

 as the plaintiff slipped because of the slightly sunken but not rough 

 pavement, but I failed. True, I had rubber heels but true, also, the 

 woman may have had suicidal " French heels." Of this we jurors 

 had no knowledge but some of us thought of it. All the verbal 

 testimony of many witnesses corroborated what the photograph was 

 supposed to show. It did show lines and shadows but not danger. 

 The witness said danger and the jury believed that the photographs 

 showed it too. Doubtless, also, the degree of damage which the 

 woman suffered became, sub-consciously in the jury mind, the meas- 

 ure of that danger. I see now, that the pictures did not prove danger 

 — not relatively, at least, as I find pavements and curbs wherever I 

 go as bad and w^orse but they do not seem to me dangerous, li the 

 defendant was guilty of negligence, comparatively few property 

 holders are not guilty. 



This case has been reviewed at some length because of its illus- 

 trative values in pointing out. how the mind shifts itself under the 

 subtilties of " evidence " which is in reality no evidence, but which 

 cannot be denied or assailed as untrue and cannot be easily ruled out. 



It seems to me that with a knowledge of the psychology of the 

 gradual winning of the juryman's mind in spite of his own better 



