
    No. 1046
    COLOPITRO v. OHIO BELL TELE. CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1711.
    Decided Nov. 15, 1926
    Judges Shields, Houck & Lemert, 5th Dist., sitting.
    480. EVIDENCE — Pictures of the surroundings of an accident offered by plaintiff as an exhibit, are properly withdrawn from consideration of the jury where there are written comments along the margin with reference to said pictures.
    Attorneys — Miller, Brady, Yager & Leidy for Colopitro; Tyler, McMahon, Smith & Wilson for Company; all of Toledo.
   HOUCK, J.

James Colopitro, by his father and next friend, brought an action against the Ohio Bell Telephone Co. in the Lucas Common Pleas to recover for injuries sustained by reason, as claimed, of having been struck by a truck of the Company. The jury returned a verdict for the company.

Error was prosecuted and Colopitro claimed that the trial court committed prejudicial error in withdrawing from the consideration of the jury exhibit No, 4, which exhibit was offered in evidence; and that the verdict and judgment are manifestly against the weight of the evidence.

It seems that Colopitro’s witnesses all testified that the point at which he was injured, there was a smoke screen, which, it was claimed, obscured the vision of the truck driver and of Colopitro. It was sought to have a picture of the surroundings of the accident go to the jury room. Certain statements were written on the cardboard upon which the picture was printed. The Court of Appeals held:

1. The court excluded these statements with reference to what the picture indicated, as contained in the words on the margin of the cardboard containing the picture.
2. This exhibit, in the condition it was in at the time it was offered, was not admissible in evidence and especially so after all the testimony was in.
3. The court below withdrew exhibit No. 4 from consideration of the jury for the reason that the pictures only were proper evidence to go to the jury and not the written comments concerning the pictures.
4. No prejudicial error exists and the judgment not being against the weight of the evidence, it is affirmed.

Judgment affirmed.

(Shields & Lemert, JJ., concur.)  