
    Hoover et al. v. Turner, Admr.
    (Decided October 19, 1931.)
    
      Mr. Henry G. Binns and Mr. James F. Henderson, for plaintiffs in error.
    
      Mr. John Cline and Messrs. Garelt & Sillman, for defendant in error.
   Hornbeck, J.

Plaintiffs in error, Glenn Hoover, S. J. Black and Lloyd Riley, were defendants below, and defendant in error, George S. Turner, administrator, was plaintiff. We refer to them as they appeared in the trial court. The action is to reverse a judgment of the trial court for the plaintiff in the sum of $19,000, representative of a verdict of $28,000, upon which the trial court entered a remittitur of $9,000. The action was for the benefit of the husband and next of kin, under the wrongful death statute. It was the claim that the defendants were jointly engaged in the operation of a truck line, and, particularly, of the truck which it was claimed caused the death of plaintiff’s decedent and resulting damages to the plaintiff.

The facts briefly are that Mr. Turner, his wife, and his son, were driving from Columbus to Lebanon on the first day of the hunting season, November 15, 1929; that Mr. Turner, driving a big six Studebaker, 1924 model, on leaving Columbus, took the National Pike to West Jefferson, and thence proceeded by Route 42 through the city of London, and had reached a place about four and one-half miles west of London when the collision occurred, out of which the suit arose. Mr. Turner and his party had left Columbus about three o’clock a. m., and reached the place of the accident shortly after four a. m. George Stubbs was the driver of a Dodge truck carrying a trailer, twenty-eight feet long in all, heavily loaded, and was making an overnight trip from Indianapolis east on Route 42, and had reached the point where the collision occurred. After the collision the right wheels of the Studebaker were resting north of and parallel with a culvert which was in a grass plot beyond the gravel, which extended three feet beyond the north half of the improved portion of the road. The left front wheels of the truck and the Studebaker were locked. The Studebaker was crushed in the left front, and on the side, extending to and beyond the windshield. The left front wheel had been forced out of line and back of the right front wheel. Mrs. Turner was thrown from the right front seat, rendéred unconscious, and died on the way to the hospital without regaining consciousness. The truck was principally damaged in front, at the radiator, and it had broken apart at the trailer and dragged on the ground.

The testimony of the eyewitnesses to the collision was directly in conflict. Mr. Turner and his son stated that the truck had collided with the Studebaker over on the left side of the driver of the truck, to the north of the road. The driver of the truck, Mr. Stubbs, testified that he was well over on to his right, which would be the south side of the road; that the driver of the Studebaker when he first saw him was on his wrong side, namely, the south of the road; that a short time before the collision he veered to the north, and that he (the driver of the truck) thought that Mr. Turner would safely pass, but that a short distance before the impact Mr. Turner again turned his car onto his wrong side and collided head on with the truck; that he (the driver of the truck) immediately jammed his brakes, but that the steering apparatus was put out of order; and that his truck veered to the left and bore the Studebaker over to the place where the cars eventually came to rest.

The Turners testified, substantially, that as they came over a little rise in the road, driving all the time on their right side, they observed the truck coming over a hill some distance to their west; that as it came nearer they observed that it was on the wrong side of the road; to attract the driver’s attention Mr. Turner dimmed his lights; that as he came within a distance of a few hundred feet of the truck the driver was seen to be veering along the north side of the road to the right and left of the middle line; that as the truck came nearer Mr. Turner slackened his speed, bore further to his right, and finally blew his horn, as the truck still came nearer, and upon the suggestion of his wife gave the truck driver the whole road and drove off of the gravel and over onto the grass. A meager statemént of the testimony of these witnesses will disclose the marked conflict that exists in the testimony.

It is asserted as one of the grounds of error that the physical facts established by the record completely refute any theory upon which the jury could have based its verdict in behalf of plaintiff.

The monumental physical fact which, in conjunction with the testimony of the Turners, appeared to confound the defendant, was the position of the automobile and truck after the collision. The fact that the automobile was over to its right much further than was required by the rules of the road, and the truck, as several witnesses said, including one of the defendants, on top of the Studebaker, supported the claim that the collision must have occurred on the north side, and to the left of, the driver of the truck. This theory was corroborated by the proof of the double tracks, claimed to be those of the truck, leading along the wrong side of the thoroughfare for a distance of 100 to 125 feet and almost up to the place where the cars were found after the collision. It is true that this testimony was refuted by some of the witnesses; but the fact was for the jury.

On the other hand, the theory of the defense was supported by two physical facts, in addition to the testimony of Stubbs, namely, the marks in the roadway extending from the south side of the road and across the road near to the place where the cars were found at Test, and the presence of glass on the south side of the road. It would seem if these marks, stressed by the defense, were produced in the manner in which they claim, namely, by the dragging of the broken down truck, that they rendered impossible the theory that the cars came together beyond the north side of the thoroughfare. However, there Avas dispute concerning the location of these marks, some of plaintiff’s Avitnesses testifying that they were only to be seen at points under where the trailer stood, and there was also testimony tending to show that they may have been caused by a disc cutter operated along the road by Mr. Moats. We can only say that there was such conflict in the record respecting these marks in the road as to require the jury to determine the fact.

Attention is directed to the position of the truck, especially the trailer, after the collision, upon the theory that by reason of their position the accident could not have occurred as claimed by the plaintiff. It would seem that if the trailer was zigzagging, as the testimony of the plaintiff tends to prove, it might have come to a stop after the collision facing either northeast or southeast. Likewise, if the truck and trailer were moving in a straight line due east, on their right side of the road, it would be unusual that a collision resulting from an automobile veering across the road could cause all of these moving objects to veer to the north side of the road.

However, so many factors are present tending to cause automobiles in collision to assume certain positions when they have ceased to move that it is largely speculative to determine from circumstances only how the collision occurred.

We are convinced that the jury was well within its rights in resolving the testimony upon a fair consideration of all of it against the theory of the defendants and in favor of the claim of the plaintiff.

It is further claimed that the verdict of the jury was stimulated by passion and prejudice, induced by misconduct of counsel. The misconduct of counsel claimed was in the manner of his questioning, particularly in the queries made to witnesses touching their relationship to insurance and insurance companies.

The state of the pleadings made it relevant and proper to indulge considerable latitude in the testimony concerning the ownership, control, and operation of the trucking company, and to permit questions purposed to disclose insurance on the truck, in whose name carried, to whom loss paid, etc. It is probable that some of the questions on this subject were unnecessary and could have been omitted with propriety. However, many of the questions were not objected to, and we cannot say upon the whole that the inquiry respecting insurance, or the conduct of counsel generally, was improper, or that the verdict manifests passion or prejudice on the part of the jury.

A number of photographs taken by Mr. Massey, a photographer at London, Ohio, were offered by plaintiff and defendant and received by the court. Three photographs, Defendants’ Exhibits C, E and G, were offered and refused, to which exceptions were noted. It is asserted that the court erred in permitting certain of the pictures to be offered by the plaintiff, because not properly identified, and erred in not admitting the photographs tendered by the defendants.

It is probable that sufficient identification of the photographs was required to be made at the time of and before they were introduced, as it is not necessary to produce the person who takes the pictures to identify them. Eventually, Mr. Massey, the photographer who took the pictures, was called to the stand, fully interrogated respecting them, which clearly removed any prejudice which could have resulted by the failure of plaintiff to call him in the first instance. Some of the pictures introduced by plaintiff were taken by Mr. Massey at the request of defendants, and therefore were known by them to be fair and 'correct representations of the objects which they purported to portray.

The photographs tendered by the defense, and refused, represented the marks in the road which defendants’ witnesses testified appeared there, and which it was claimed were caused by a broken portion of the truck dragging upon the road after the collision. The marks had been painted white, and in one of the pictures numbers had been inserted, from 1 to 15, inclusive, probably for the purpose of showing the total number of such marks on the road. It was testified that when the pictures were taken the day was dark and an ordinary photograph would not display the true situation respecting the marks, and that to make them visible the expedient of painting them was resorted to. The court was of opinion that they should not be admitted, undoubtedly upon the theory that they did not properly represent the true situation which they purported to depict, as is required under the ordinary rules of evidence.

We have examined the cases cited by counsel, particularly Hayes v. Emerson, 110 Cal. App., 470, 294 P., 765, where the court permitted the introduction of a photograph showing a skid mark which had been painted white for its full length, according to the testimony of the witnesses in the case. The court held that a-photograph shown to be a faithful representation of what it purported to reproduce was admissible as approximate aid in applying evidence; and that it was for the trial court to determine whether a photograph was a correct representation of the object, and fhe ruling would be sustained unless there had been an abuse of discretion.

It will be noted that this case, upon the exhibit admitted, rather than the syllabus, is authority for the admissibility of evidence like unto that offered in this case. It is likewise authority to the effect that the admission of such photos is largely a matter of discretion of the trial court, and that it will not be disturbed unless abused. We cannot say that the trial court would have erred in this case had it admitted the photographs, but testimony of this character should be received with caution for the obvious reason that it is subject to distortion. In this case the jury had the full benefit of the statements of the witnesses respecting those marks which were portrayed in the tendered photos and we cannot say that the court erred in refusing to admit them. The length to which this sort of photography could be employed in a case of this kind would appear if all the marks testified to in the record had been painted, photographed and put in the record. There would have appeared the double tread marks which it was claimed were made by the truck, possibly those which Mr. Moats claimed were made by his disc cutter, perhaps other marks in the road, together with those in the photographs tendered. Such practices could easily be the subject of abuse, and a court should act with great care in receiving photos taken after there has been any change in the objects which are the subject of evidence in the case. The action of the trial court in refusing to admit the photographs is in accord with the principle announced in the following Ohio authorities: 17 Ohio Jurisprudence, 580: “Preliminary proof should be made that the object or person which is the subject of the photograph is fairly represented”; Varner v. Varner, 16 C. C., 386, 9 C. D., 273; Cincinnati, H. & D. Ry. Co. v. De Onzo, 87 Ohio St., 109, 100 N. E., 320.

"We have examined all of the errors asserted and do not find that any was so prejudicial to defendants as to require reversal of the judgment. It will therefore be affirmed.

Judgment affirmed.

Allread, P. J., and Kunkle, J., concur.  