Steckbeck v. Worman , 71 Ind. App. 666 ( 1919 )

McMahan, J.

— Complaint by appellee for damages to Ms automobile caused by tbe alleged negligence of appellant. The jury returned a verdict in favor of appellee, and judgment was rendered accordingly.

Tbe only error assigned is tbe overruling of tbe motion for a new trial.

1. Tbe first contention of appellant is that tbe verdict is not sustained by sufficient evidence. The accident occurred on a country road about 6:30 p. m., December 2. Appellee and bis witnesses testified in substance that tbe appellant was driving bis automobile from twenty-five to thirty miles an bour in violation of tbe law; that bis lights were bright; that be did not slow up, but came straight at appellee; that appellee was driving bis car about eight or ten miles an bour and, on seeing tbe appellant coming, drove over to tbe side of tbe road and stopped bis car; that appellant did not slow bis car, but ran into tbe appellee’s car, injuring tbe same. Some of appellee’s witnesses testified that appellant was “zig-zagging” across tbe road and that, when about thirty feet from appellee, be drove in a diagonal direction, striking the front wheel of appellee’s car. Appellant and bis witnesses testified to an entirely different state of facts. They testified in substance that appellee was driving bis car from twenty-five to thirty miles an bour, bad but one headlight which, being bright and glaring, blinded appellant; that appellee drove bis car from one side of tbe road to tbe other, and that appellant was driving about eight miles an bour instead of twenty-five to thirty- miles an hour, and that appellee ran bis car into appellant’s car. There was a sharp conflict in tbe evidence. It was the province of tbe jury to determine tbe weight of the evidence and the credibility of the witnesses. The jury returned a verdict in favor of appellee and, there being evidence to, support their verdict, we will not weigh the evidence.

2-3. Appellant also contends that the court erred in refusing to permit the jury to inspect a photograph of appellant’s car, which he says was admitted in evidence. The record, however, discloses that appellant offered to introduce the photograph in evidence and that plaintiff objected. The record does not clearly disclose whether the photograph was introduced in evidence or not. It appears from the evidence that on the day after the accident two photographs, A and B, were taken of appellant’s car. Appellee’s objection to admitting photograph A in evidence was overruled. Nothing more is shown relative to A. The record does not disclose that after the ruling of the court it was actually introduced in evidence. Appellant then offered to introduce B in evidence, to which appellee made objection. Appellant then made an offer to exhibit A and B to the jury. The court overruled the offer of appellant to exhibit them to the jury until evidence was introduced showing the relation of the cars to each other. No evidence had been introduced to show that at the time the photographs were taken appellant’s car was in the same condition that it was in immediately after the accident. It is evident from the statement of the court that neither A nor B had been formally introduced in evidence.' That being true, the court correctly refused to allow them to be exhibited to the jury. There was no hardship imposed on appellant by requiring him to prove that there had been no change in the condition of his automobile after the accident and before tbe pbotograpbs were taken. Appellant contends that the proximate canse of the injury to appellee’s automobile was the fact that appellee had but one light on the front of his car and was running the same in violation of §10476 Burns 1914, Acts 1913 p. 779, §13. The jury, however, found otherwise, and there is evidence to support that finding.

There was no error in overruling the motion for a new trial. Judgment affirmed.