DocketNumber： No 418
Citation Numbers： 22 Ohio Law. Abs. 520
Judges： Barnes, Bodey, Hornbeck
Filed Date： 3/6/1936
Status： Precedential
Modified Date： 11/12/2024
OPINION
The above entitled cause is now being determined on proceedings in error from the judgment of the Court of Common Pleas of Greene County, Ohio. The parties will be referred to as they appeared in the trial court, inverse to their order here.
The real plaintiff was the minor, Ray M. Smith, but due to his minority the action was brought by his father and guardian, Joseph Smith. Ray is now past twenty-one.
The plaintiff’s action was for personal injuries claimed to have been sustained while riding in an automobile as a guest with his friend Norman Clark, and alleged to have been caused by the negligence of the defendant, John Tytus, in operating his automobile on the wrong side of the road in violation of §6310-17 GC.
Plaintiff’s petition was filed July 26, 1934, answer thereto on September 15, 1934, and reply October 10, 1934. Trial commenced April 18, 1935, just eleven months to the day after the accident. The jury was impanelled on the first day of trial and several days were consumed in taking evidence. On April 22 one of the jurors was taken sick. After conferences it was finally agreed by counsel that the jury might be discharged and the cause submitted to the trial court. On June 7, 1935, the court released a written opinion, finding in favor of the plaintiff. Defendant interposed motion for separate finding of facts and conclusions of law. This motion was sustained and separate findings made by the trial court. Motion for new trial was filed and overruled. On July 16, 1935 judgment was entered for plaintiff in the sum of $18,-850.00. This is the final order from which error is prosecuted in our court. The motion for new trial and also the petition in error sets forth nine specifications of error, but in the oral argument and briefs counsel for plaintiff in error urge but two grounds, as follows:
“I. The verdict is manifestly against the weight of the evidence.
“2. The amount of the verdict is excessive.”
While other grounds of error are not specifically withdrawn from consideration, we assume that since same are not presented in argument or brief no reliance is placed thereon at this time. In addition, we might say that we find no prejudicial error on any of the grounds not presented in brief.
Both grounds of error urged by counsel for plaintiff in error involve the question of the weight of the evidence and this necessitates a very careful and thorough examination of the evidence as presented in the record.
The accident occurred on the morning of May 18, 1934, between the hours of 1:30 and 2:00 A. M. and on U. S. Route No. 42, between Xenia, Ohio and Spring Valley, Ohio, about four miles south of Xenia. At this point U. S. Route No. 42 is hard-surfaced, a thoroughfare about 19 feet in width and with gravelled, usable berms on either side of about four feet, making the usable portion of the road about 27 feet in width.
The defendant, John Tytus, resides in Middletown, Ohio, and is Vice-President of The American Rolling Mills Company in that city. He is fifty-nine years of age. During the day he had driven to Columbus* Ohio, to see his dentist. Accompanying him on the trip over and back was Mrs. Allen Andrews, Jr., of Hamilton, Ohio. The uncontrovertcd evidence is that at the time of and immediately before the accident he was driving his Ford coupe at a speed not exceeding 35 miles per hour. Tie car in which the plaintiff, Ray M. Smith, was riding, and operated by Norman Clark, was a Tudor Ford Sedan, and before the accident, according to the testimony of Clark, was operated at a speed of about 45 miles per hour.
During the early evening and until midnight the plaintiff Smith, Clark and another young man by the name of Crites, and three girls had spent the time in and
There is evidence that the three boys and three girls, when they left Xenia for Dayton, had with them a half pint of gin, which was consumed after they arrived at Dayton. They also drank some beer in each of the three dance halls. This evidence is only important as it might reflect on the question of Clark’s ability to drive his car. Aside from this evidence given by Clark and Smith as to the quantity, time and place of drinking liquor, there is no evidence supporting intoxication.
There are also some kindred aspersions as to the defendant, Tytus, a married man, being out at this late hour with a married roman. Counsel for defendant sought to meet any possible claim against propriety by having present and calling as a witness, Allen Andrews, Jr., the husband of Mrs. Josephine Andrews, the lady who was with Mr. Tytus in the car. Of course, this incident really has no bearing upon the question of negligence or responsibility for the accident and resultant injuries. The only eye witnesses who were able to give any direct testimony of pertinent facts immediately before and at the time of the accident were Clark, on behalf of the plaintiff, and Mr. Tytus, on his own behalf.
The plaintiff Smith says that he has no recollection of anything after leaving Xenia and striking Route 42 on the way home. He does not know whether he was asleep or whether the accident erased his memory of immediately preceding events. Medical testimony is offered that severe accidents sometimes have that result. Clark says that as they were approaching what proved to be the Tytus car Smith spoke to him about it.
Mrs. Andrews says that, while not asleep, she was riding with her eyes closed and hence knew nothing until she heard the screeching of brakes immediately before the crash. The defendant, Tytus, says he saw the approach of what proved to be the Clark car by reason of reflection in his windshield, and that it had the appearance of coming fast. At that time he pulled to the extreme right and was so driving when the Clark car hit his car in the rear. Clark thinks he ffrst observed the tail light of the Tytus car when he was 300 or 400 feet away, and at that time it was in the center of the road; that when something like 150 feet away he sounded his horn the first time and the Tytus car apparently responded to his signal by pulling towards the right; that thereafter he observed it again pulling towards the right; that thereafter he observed it again pulling towards the center, and at something like 75- feet away he gave a second signal, but the car proceded towards the center. He gave a third signal and at the same time applied his brakes when he arrived at the conclusion that he could not pass the car, either to the right or left. Tytus claims that he heard no signals by horn. Plaintiff says that piark did manage to get the front of his car past on the left side of the road, but the rear of the Tytus car struck his car on the rear right side, mashing the running board, fender and rear side panel. Tytus denies that he at any time after seeing the reflected lights in his windshield was driving his car on the left or wrong side of the road, but says, on the contrary, that he was driving well over to the right. The Tytus car was very badly damaged and in a general way as follows: The spare tire on center rear of the car, and tire carrier broken; the rear bumper, rear glass, rear panel on left side dented, a hole knocked in the gasoline tank and the same cramp-led in, all near the left end. The left rear fender mashed, the frame bent, the left rear wheel mashed and thrown up against the body, so that it would not revolve. In other words, the physical conditions disclosed the force of the impact upon the Tytus car to be at the left rear, extending to the rear center.
Very generally in rear end collisions the front of the car following comes in contact with the rear of the car in front. The location of the injuries and damage to the Tytus car would lead to this conclusion in the first instance, but when we And by undisputed evidence that the front of the Clark car was not damaged, we must look for further physical facts, if disclosed.
Both sides, in order, present witnesses who visited the scene of the accident shortly following the hour of its occurrence and before daybreak. The first person present, following the crash, was Mr. Roy Hinshaw,' bookkeeper for The Eavey Company, and residing at 18 Union Street, Xenia. He was driving his automobile on this Route 42 towards Xenia and was within a few hundred feet of it when it happened. He
Mr. Hinshaw testifies that he examined the roadway and could see gasoline spilled on the road. It was located a little east of the center of the road, which would be the left side as the cars involved in the accident were proceeding. He says that this gasoline mark proceeded across the road in the direction of the Tytus car on the right hand side. He makes no reference to tire marks in the road.
Norman Clark also examined the road while he was with witness Hinshaw. In his testimony he refers to a mark on the roadway as if the tires had made a line, but does not say where in the road. He also refers to the gasoline mark, which he says was well to the left side of the center of the road as you were going towards Spring Valley, and that this trail of gasoline led to the Tytus car.
M. C. Smith, city manager of Xenia, Ohio, and an uncle of the injured boy, was telephoned to from the hospital and requested to go out and bring in the father, Joseph Smith. He first went to the hospital and from there drove out to Spring Valley, where the father lives. His direct route was out Route 42 and past the scene of the accident. On his way out he made a casual observation of the location of the two cars. The Tytus car was in the ditch on the right side of the road, and the Clark car in the ditch on the left .side of the road, so expressed considering the direction in which they were going previous to the accident. The two cars were almost opposite each other.
Mr. Smith proceeded to the home of his brother, Joseph Smith, and then immediately returned with him to the hospital. After spending a reasonable time at the hospital, Messrs. M. C. Smith and Joseph Smith returned to the scene of the accident and there made a more thorough investigation of the physical conditions. At the time of their arrival John Baughn, sheriff of Greene County, and his deputy, J. B. Newsome, were present, also making an investigation of the physical conditions. Each and all give testimony as to the damaged condition of the cars, some in more detail than others, but nothing in conflict with the general condition heretofore referred to. Joseph Smith says that at the time of their arrival the Clark car had been removed. Mr. M. C. Smith described in detail tire marks on the highway, which he says were clearly traceable to the Tytus car.
In order to avoid confusion we will refer to the right and left sides of the road as the cars were moving before the accident, rather than to cardinal directions. We might also say that before the- accident the two cars were proceeding in a general southerly direction, and therefore the west side of the road would be the right and the east side would be the left. Mr. M. C. Smith in his testimony traces this tire mark both ways; that is, he describes it as he traced it from the Tytus car as it was located on the right side of the road in the ditch up over the berm, the four foot gravelled strip, the hard surfaced road to the center, and then for a distance of approximately 30 feet, about 3 feet on the left side of the center and then again crossing to the center and proceeding in a diagonal direction, about 100 feet to the berm. He also repeats his testimony in the same answer by starting at the berm and proceeding on the right side practically 100 feet to the center, then across the center, about 3 feet, and for a distance of about 30 feet on the left side of the center, then back across the center and over the hard surface, gravel and berm to the Tytus ear. He also gives evidence of a large puddle of gasoline about four feet from the center, on the left side of the road, directly opposite the point where the moving Tytus
For a better understanding of the subsequent narrative we might say at this point that the trial court was of the conclusion that the evidence warranted the inference that the collision took place at this point.
Mr. Smth described this tire mark as a well-defined continuous line on the right side, for approximately 100 feet, up to the center of the road, directly opposite this puddle of gasoline. This tire mark in the road was made by the left rear wheel of the Tytus car and there is clear evidence that the wheel was not revolving. Mr. M. C. Smith also was present eight days later, when photogranbs were taken of the tire marks and gasoline marks, and further states that these photographs correctly represent the marks in the road, just as he saw them on the early morning following the accident. This removes any question that might otherwise arise as to remoteness.
Joseph Smith also testifies in a general way to the tire and gasoline marks, although not in such full detail, nor with such definiteness as does his brother, M. C. Smith. Both testify to marks on the left hand surfaced portion of the road, intended to support the theory of tire skid marks of the Clark car. These appear at regular intervals and about 24 inches in length, but were not discernible between the location of the gasoline puddle and the location of the Clark car in the ditch. These possible skid marks were not definitely located as to their distance from the center of the highway, but were said to be on the left side of the road. Four photographs were presented in evidence, all taken by the same photographer, eight days after the accident. Three were presented, identified and introduced in evidence by the plaintiff. The fourth was in the possession of counsel for the plaintiff, and on request was delivered to counsel for defendant and the latter then introduced this fourth photograph in evidence as Defendant’s Exhibit 2. These photographs, and particularly Defendant’s Exhibit 2, will be referred to later.
No other or further testimony was presented by plaintiff relative to tire marks or gasoline marks on the highway.
Counsel for defendant presented two witnesses, who examined the general physical conditions on the early morning immediately following th^ accident. One was John Baughn, sheriff of Greene County, and the other, J. B. Newsome, his deputy. These men were called to the hospital following the accident and from there went out to the scene of the accident before daybreak and were there at the time of the arrival of Mr. M. C. Smith and his brother, Joseph Smith. The testimony of each as to the damage to the respective cars conforms to the other testimony in a general way, although probably none gives as full and detailed a list of injured parts as does the mechanics examining the cars or looking over same for the purpose of estimating damages. Both these witnesses testify that they were able to trace the tracks of the Tytus car on the right side of the highway and that at no time did the Tytus car cross the center onto the left side. These tracks were traced back a distance of from 75 to 100 fest. The tracks of the Tytus car showed that it was pulling towards the center. There were other tire marks across the center on the left side at or near the point where the sheriff thinks the collision occurred. Neither the sheriff nor his deputy observed any gasoline or gasolino marks on the highway.
We now come to examine the photographs introduced in evidence as exhibits. Plaintiff’s Exhibit A and Defendant’s Exhibit 2 are interesting and helpful. According to the photographer, Plaintiff’s Exhibit A was taken for the purpose of showing the gasoline stains, but it does, in a measure, show some of the same physical conditions as shown in Defendant’s Exhibit 2. However, the latter was taken for the purpose of showing tracks and is clearer and mors distinct as to tire marks. The photograph of this tire track necessarily presents a more correct idea of its location and course than could possibly be done by witnesses relying upon their recollection. Of course, we always have the question whether, through photographs or testimony of witnesses presenting physical conditions following an accident, such condition had a causal connection with the subject being investigated. Applying th's idea to the instant case the query arises as to whether or not the evidence sufficiently identifies the tire mark shown in the highway as having been made by either one of the cars involved in the accident. We have present such an identification in the testimony of Mr. M. C. Smith, who identifies the lines and says' they are the same as he observed on the early morning after the accident, and that they were traceable in a connected line to the Tytus
This single well-marked, well-defined line, as presented in the photograph, Defendant’s Exhibit 2, coupled with the oral testimony of various' witnesses who visited the scene of the accident does, we think, present the correct evidence as to the location of the Tytus car on the right side of the road, at least up to the center line. There is no controversy in the evidence that the wheel mark which clearly shows on the right side of- the hard surfaced pavement is made from a non-revolving wheel. The facts that it remains and shows so clearly eight dai's after the accident urges very strongly that it is more than a clamped wheel from use of brake. There is no conflict in the evidence that this wheel mark, something like 75 to 100 feet in length, on the right side of the road, was made by the left wheel of the Tytus car. It must be kept in mind that it was the left wheel of the Tytus car that was so wedged into the frame that it would not revolve. To our mind it is more inferable than otherwise that the collision and mashing and wedging of the rear tire of the Tytus car so that it would not revolve occurred where this tire mark starts, well over to the right on the right hand side of the road. The only reason assigned for fixing the point of collision at a different location, as we understand, is the puddle cf gasoline. We cannot see why this should be controlling. A car moving at a speed of 45 miles per hour will travel 66 feet per second. In our judgment it is easier to explain the failure to find signs of gasoline along this 75 to 100 foot wheel mark than to conclude that the wheel mark was made otherwise than by the collapsed non-revolving wheel. While it is true there is no evidence by any of the occupants of the two cars of more than one crash, still there is no evidence to the contrary. This could easily occur and be in such quick succession that the occupants of the cars, in the excitement, could not discern it. It is passing strange that if the Clark car, moving at a speed of 45 miles an hour, and coming in contact with the Tytus car, moving at a speed of 35 miles an hour, and of such character as to cause'major damage to each car, would not make many gyrations on the road and come in contact more than once and all this in a period of not more than two or three seconds.
It is impossible to determine just at what point or in what manner the gasoline tank of the Tytus car was slit so.as to permit the gasoline to escape.- If we accept the theory that the crash occurred at or near the point where the Tytus car approached the center line on the highway and that the wheel marks on the left of that center line were made by the left wheel of the Tytus car, we are then forced to the conclusion that the contact did not take place on the left side of the road. It is seif evident that the narrow line extending from the white center over to the left was not made by a car moving on its own power. It would be absolutely impossible for a wheel to move ilr that direction, except by skidding or being knocked over. If t-he collision occurred at or near this point, the conclusion is irresistible that the Clark car struck the Tytus car on the right side of the white line and pulled it over on the left side.
It is our judgment that the physical evidence does not suppont the contention of the plaintiff that the defendant-, Tytus, was operating his car on the left side of the road. We have heretofore stated that the only eye witness giving any testimony of conditions immediately preceding and at the time of the accident were the driver Clark, on behalf of the plaintiff, and defendant Tytus, on behalf of himself. According to Clark the Tytus car immediately before the accident was pulling over towards the center of the road, and he reasons that at the time of the crash he was across the center. On the other hand, Tytus says that he was well over on the right side of the road. If we accept the theory that the crj.sh occurred at the point where the wheel mark starts, then the physical evidence supports Tytus. If, on the other hand, the view is accepted that the crash occurred at the other end of the tire mark, near where it approached the white center line, then the physical evidence corroborates Clark to the extent that Tytus was driving his car towards the center, but v/ould not support Clark in his reasoning that the Tytus car was being driven on the left side of the road. It will be observed that Clark does not say positively that the Tytus car was being driven on the left hand side of the road. (See pages 33, 34 and 35 of the record) That Clark so reasons that the Tytus car was being driven on the left hand side of the road is unquestionably true and it clearly appears that his answer is based upon his deductions. Tire first reference to this question is at the bottom of page 34 and top of page 35, and in his answer
“Q. With reference to this center line, at tlie time the cars came together, where was the Tytus car?
A. I was watching the car more than anything else, but from the position I last seen it and his gradual pulling to the left, I would say practically the whole car was past the center line.
Q. On which side of the road?
A. On the left side of the road.
Q. In the direction you were going?
A. Yes.”
Also see the following question and answer in the middle of page 34:
' “Q. Then what happened?
A. Then, I seen that he was not going to lay over to the right, so there was a moment of indecision in my mind as to what to do, whether I could possibly pass on the right or not, and I decided against that. By that time I seen my brakes were not going to stop me in time to avoid a collision, so I attempted to get in the ditch. In doing so, the front end cleared his, and my right rear struck his left rear.”
If Clark was over on the left side, where he should be in attempting to pass, why should there be indecision as to the possibility of passing on the right side at a time when he knew that his brakes were not going to stop him in time to avoid a collision?
Furthermore, the evidence discloses conclusively that this road is very wide, to-wit, the hard surfaced portion 19 feet and the gravelled usable berms an additional 4 feet wide on each side, making the usable portion of the road 13% feet in width to the right and left of the white line. Even if Clark’s deductions were correct that the Tytus car was over on the left hand side there would still be 8% feet to the left of usable road upon which to pass.
What reason can be given for Tytus, driving his car from the extreme right diagonally across the road to the center and then over the center, if he knew a car was approaching from the rear and that it desired to pass? Tytus says that he knew of the approach of the car by its reflection in his windshield, and at that time moved over to the right. He did not hear any signal by horn, and hence, if this be true, it cannot be claimed that he gave heed to a horn that he did not hear. Failure to observe a signal by horn will not constitute negligence unless the horn is heard. It is just unthinkable that Tytus would pull over to the extreme right to permit a car to pass and then immediately thereafter drive clear over on the left hand side of the road.
We now call attention to the cross examination of Mr. Clark at pages 55, 56 and 57, relative to the movement of the Tytus car. On page 55 he testified that when he blew his horn the second time the left wheels of the Tytus car were approaching the center line of the road, and then the following questions and answers:
“Q. Did you blow your horn a third time?
A. Yes.
Q. How far were you from the defendant’s car when you blew your horn the third time?
A. I don’t know. I was very close.
Q. Was it far enough away so that at that time you could have, by applying your brakes, stopped your car before striking his car?
A. NO.”
Then follow questions and answers as to applying the brakes, distance, and so forth, and then at the center of page 56 the following:
“Q. Inasmuch as you could have stopped the car within forty feet, therefore, you must have been closer than forty feet when you blew the horn the third time?
A. Yes.
Q. Now, after you blew the horn the third time, when you were some place within forty feet, you don’t know how many feet, but so close that you could not then, by applying the brakes stop, what was the position of the defendant’s car then with reference to the center line of the road? Was he pulling still further over to the left of the road?
A. Yes.
Q. So that, as I understand it, at the time of the collision, his car was completely to the left of the center line of the road?
A. I couldn’t say that for sure.
Q. Well, you can’t say that for sure, but is that your best judgment?
A. That’s my best judgment.
Q. Your best judgment is that even the right wheels, front and rear, of his car were to the left of the center line of the road?
A. Yes.”
If we reconsider the case on the question of the weight of the testimony, it is proper to search the record for any and all testimony that touches the credibility of the witnesses. Giving application to this rule with respect to the defendant Tytus and the witness Clark, heretofore referred to as the only two eye witnesses, we find that Mr. Tytus is a man fifty-nine years of age, residing in Middletown, Ohio, and is Vice-President of The American Rolling Mills Company in that city. We find nothing in the record reflecting on his credibility as a witness.
As to Clark, it is disclosed that a short time after this accident he was arrested for grand theft in California, entered a plea of guilty and was sentenced. Specifically, the offense was stealing an automobile. He also admits that at times he had gone under an assumed name. The sheriff testifies that on the morning immediately following the accident he talked with Clark about the accident, and he then stated to him that he did not know who was to blame. Clark, on being interrogated as to this conversation, says that he does not believe that he made such a statement, but on further inquiry, said that he would not deny it. It is in evidence that Clark was seeking frequent interviews with Tytus, and saw him no less than ten times. Clark admits four or five times, and possibly more. Tytus and other witnesses present at some of the interviews say that he was unable to ascertain definitely what Clark wanted, but, from certain statements made felt that he was threatening to blackmail him. Clark denies this and says that he felt that Tytus owed him something but failed to give any clear statement of his demands. It is also claimed that in some of these interviews Clark stated that he was in need of money because he had issued a bad check. Clark says he does not remember making the statement, but admits that he may have done so.
There is also admitted in evidence Defendant’s Exhibit 1-a and 1-b, Exhibit 1-b being an envelope addressed to John Tytus. The envelope was one from the Hotel Manchester, Middletown, Ohio. The letter, Exhibit 1-a, was written on a letterhead of the Hotel Manchester, Middletown, Ohio, and was addressed to Mr. Tytus and is unsigned. Clark admits the writing but disclaims mailing. It appears on its face that it was not sent through the mails, but is claimed to have been delivered at the office for Mr. Tytus during his absence. In any event, it came into the hands of Mr. Tytus. It is unexplained by Clark and, to say the least, is suspicious.
We recognize the rule that regardless of this evidence as to the character of the two men, the trial court, who saw and heard the witnesses, has the right to accept the testimony of either. However, the testimony of Clark cannot be extended as proving beyond what he says. His reasonings and deductions are not evidence. His testimony must be confined to facts. It is the province of the jury, or the court, where a jury is waived, to make the deductions. Applying this principle we find, as heretofore quoted from Clark’s direct testimony, that from the position that he last saw the car and his gradually pulling to the left he would say the Tytus car was over the center; but in the cross examination, as heretofore quoted: “I would not say that for sure, but that is my best judgment.” The fact that this evidence went in without objection would not change the rule as to its probative value.
The physical evidence presented by witnesses who visited the scene of the accident and observed the tire tracks, gasoline marks and positions of the cars very positively shows that his deductions were wrong and his judgment on the position not good. Mr. M. C. Smith, an uncle of the injured boy, was the first to visit the scene of the accident, but on his first trip he did little more than examine the cars. Shortly thereafter Clark and Hinshaw returned to the scene of the accident, but they gave no detailed evidence as to the marks in the road that can aid in the slightest degree in solving the problem. The next to appear on the scene was the sheriff of Greene County, Mr. Baughn, and his dep
While the sheriff and his deputy were viewing the scene of the accident Mr. M. C. Smith and Mr. Joseph Smith, the latter being the father of the injured boy, visited the scene for the purpose of examining the physical conditions. Their testimony has heretofore been narrated in detail. They traced the tracks of the Tytus car from the extreme right in an angling direction towards the center for a distance of about 75 feet. They then say that the track crossed the center on to the left side and followed on the left side for a distance of about 30 feet, when it again crossed to the right side and into the ditch. Mr. M. C. Smith places this distance from the center line at about 3 feet, and his brother, Joseph Smith, at about 1% to 2 feet. They also testify to a pool or puddle of gasoline in the road on the left hand side at about the point where the Tytus car crossed over the center line. The trial court makes the deduction from the location of this pool of gasoline, that this was the point of contact. Without any further explanation this testimony of Mr. M. C. Smith and his brother, Joseph Smith, would be substantive evidence leading to the inference that the Tytus car was over on the left hand side. Unexplained, it possibly might be inferred that it was being driven there. However, eight days following the accident they engaged a photographer to go to the scene of the accident and make photographs. Mr. M. O. Smith was present at the time same were taken. The photographer took four different views. The plaintiff only introduced three, but the fourth was produced on call of counsel for the defendant and then introduced in evidence, being identified by the photographer. The photograph shows a very clear and distinct black line on the right hand side of the road, covering a distance of what is estimated to be 75 feet, and coursing a diagonal line from the right side of the paved portion of the road to the center white line, but not across it, except in the photograph which was offered in evidence by defendant, it shows a sharp, almost right angle line across the center and on to the left side of the road, and then on for some distance, where it again crosses to the right side and witnesses say down into the ditch where the Tytus car was standing. Exhibit A shows this black line and its abrupt crossing in the center line, but not as clearly as does Exhibit 2, introduced by defendants. The photographer taking the pictures explains that Exhibit A was not taken for the purpose of showing the tire line, but rather to show the gasoline marks. This same photographer says that Exhibit 2, which he took, was taken for the purpose of showing the tire marks. We have heard in the past of trick photography where perspective is not properly shown. It certainly would not be proper to indulge this possibility in this case, since the photograph was taken by plaintiff’s photographer and when Exhibit 2 was taken it was for the purpose of showing the tire or wheel marks. His camera was on the left side of the road (considering the direction in which the ears involved in the accident were moving). Considerin'?' that the line from the center of the road moves almost at right angles across the center and on to the left side of the road, we can understand that the photograph might not show the width of the mark, but it would correctly show its direction and course. The conclusion is, therefore, irresistible that even if the point of contact between the cars was at or near this center line, the left wheel of the Tytus car did not go over on to the left side on its own power. It is physically impossible for the real wheel of a car under its own power to take the course as shown in this photograph, Defendant’s Exhibit 2. From the physical facts it must be concluded that it was pulled over.
As further bearing on the identity of this wheel mark in its entire course we again refer to the testimony of Mr. M. C. Smith, who testifies that this mark shown in the photograph is the same mark that he saw on the highway in the early morning following the accident, and that at that time it was traceable directly to the Tytus car. This photograph is of much higher value than the testimony of witnesses who depend upon their recollection. However honest, we know as a matter of common knowledge that it is difficult to remember with exactness physical conditions such as existed there on the morning following the accident. Ordinarily, a photograph taken eight days following an accident would not be accepted, because it
We now search the record as to whether or not there is any conflict in the testimony of plaintiff’s witnesses from the conditions shown in the photograph marked Defendant’s Exhibit 2. A most careful reading of the testimony will disclose that there is no conflict unless it be the deductions of the witness Clark. The photograph, Defendant’s Exhibit 2, is explanatory of the oral testimony and not in conflict. When witnesses Joseph Smith and M. C. Smith, father and uncle of the injured boy, testify that on the morning following the accident they traced the tire mark of the Tytus car from the extreme right side of the paved portion of the road diagonally to the center line, then across the center line a distance of from lVa to 3 feet, and then continuing down the left side for a distance of 30 feet, where it again crosses to the right side and in a ditch, the natural effect on the listener to such a statement would be that the car was moving in a regularly well defined natural course, although witnesses do not say so.
When we examine the photographs it gives an entirely different explanation to their testimony. We then for the first time find an element present that we otherwise would not think of. The witnesses have not testified untruthfully, but we have not visualized correctly. As heretofore stated, the photograph is explanatory and gives us the correct situation.
Some comment has been made relative to a statement made by Mr. Tytus at the hospital to the sheriff and his deputy. The inference is drawn that Mr. Tytus made the remark that he would take care of everything, and from this it is urged that he was recognizing his negligence and liability. We are unable to conclude that the testimony of the sheriff and his deputy on this question will bear any such construction. .The officers were interested in clearing the wreckage from the highway, and not in the question of personal injury damage to the plaintiff. They were talking about the cars. Mr. Tytus did look after his car and have it removed from the highway.
It is the view of two members of this court that the finding and judgment is manifestly against the weight of the evidence and that the cause should be remanded for new trial. However, the other member of the court does not concur in this conclusion and under the law it follows that a reversal on the weight of the evidence cannot be had except where all three members of the court concur.
There will be appended to this opinion the dissent of Judge Hornbeck.
Another claimed error is that the amount of the judgment is excessive.
After we pass the question of liability we would not be inclined to disturb the amount of the verdict. By reason of the fact that only two members of the court concur in the view that the judgment should be reversed on the weight of the evidence the judgment of the lower court will be affirmed.
Exceptions will be allowed.