Haven v. Snyder
| Decision Date | 15 May 1931 |
| Docket Number | 14,085 |
| Citation | 176 N.E. 149,93 Ind.App. 54 |
| Parties | HAVEN v. SNYDER |
| Court | Indiana Appellate Court |
Rehearing denied August 13, 1931.
From Huntington Circuit Court; Summer Kenner, Judge.
Action by Frank R. Haven against Roy V. Snyder. From a judgment for defendant, the plaintiff appealed.
Affirmed.
Claude Cline and M. J. O'Malley, for appellant.
Arthur H. Sapp, John V. Sees and Burr H. Glenn, for appellee.
Appellant Frank R. Haven, brought this action against appellee, Roy V. Snyder, for damages for personal injuries alleged to have been sustained by him by reason of a collision between appellee's automobile and the automobile owned and driven by appellant. Trial was had by jury, which rendered a verdict in favor of the defendant, and, from a judgment thereon, appellant appealed.
Appellant filed a complaint in two paragraphs, but the first paragraph was dismissed pending a ruling on a demurrer thereto, and a demurrer to the second paragraph was overruled. After the introduction of some evidence, and during the progress of the trial, appellant was permitted to file a third paragraph of complaint. Appellee filed answer in general denial to each of the second and third paragraphs of complaint upon which trial was had.
The second paragraph of appellant's complaint alleges, in substance, as follows: That plaintiff (appellant) owned a Dodge touring car, which, on the night of August 12, 1928, at about 11 o'clock p. m., he was driving in a northerly direction at a point about 500 feet south of the intersection of the highway which crosses state highway No. 24, at what was formerly the town of Mahon; that defendant was the owner and driver of a Paige sedan and was driving in a southerly direction on the same highway at the same time and place; that appellant's car was being driven at about 30 miles per hour in a northerly direction on the right side of the road in a careful and prudent manner at a point south of Mahon; that appellee operated his car in a southerly direction and that appellee "negligently and carelessly swerved his car to the left and to the left of the center of said highway over into and upon the car driven by plaintiff; thereby causing plaintiff's car to be damaged and causing plaintiff to lose control of his car, which caused the car to swerve to the left and run across the highway and into a ditch on the west side of the highway." It is further alleged that, as a result of appellee's car colliding with appellant's car, appellant received certain injuries to his person (which he fully describes) and for which he asks damages. The third paragraph is substantially similar to the second, except it is alleged that Leonore Snyder was driving appellee's car at the time the collision occurred; that Leonore Snyder is the wife of Roy V. Snyder, appellee, owner of the Paige sedan, and that Leonore Snyder was driving the car as the servant and agent of Roy Snyder, with his knowledge and consent, and under his direction.
The only error relied upon for reversal is that the court erred in overruling appellant's motion for a new trial, which contains the following grounds: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the court erred in admitting in evidence, over the objection of the plaintiff (appellant), certain evidence consisting of certain photographs; and (4, 5 and 6) the court erred in giving and refusing to give certain instructions.
During the progress of the trial, appellee, over objection of appellant, introduced in evidence certain photographs. The photographs were pictures of scratches on the pavement purported to have been caused by the collision of the two cars. These photographs, before being introduced and received in evidence, were identified and verified by William Ricket, who testified, in substance, as follows: That he was a photographer and that he had practiced photography for about 20 years in Huntington; that he did interior and exterior work; that, on August 14, 1928, he took photographs of a scene of a certain accident which occurred on August 12, 1928, near the town of Mahon; that he observed indications of there having been a wreck or collision between cars in the way of marks on the side of the road showing where cars had gone into the ditch; that there was broken glass there; that he was familiar with the road and the scene the photographs represented at and prior to August 14; that there was nothing to indicate a change in the place between August 12, and the time the picture was taken; that the road in the background of Exhibit A is the road leading to Fort Wayne; that Exhibit A is a true and accurate photograph of the place described; that the camera was placed on the southeast looking north and west; that Exhibit B is a true and accurate photograph of the place described; that he (the witness) examined the road at the point of the accident and found scratches and marks on the road; that the scratches started about 16 and 18 inches west from the center, going diagonally across the pavement towards the south and east; that there were some light gray marks in a straight line, but just short and long marks running diagonally across the pavement; the marks were easily visible to the eye; they were just simply scratches not below the surface; they were from six inches to two inches in length. He further testified that, before taking the photographs, he put some chalk marks over the gray marks; that he placed a circle where the marks started in the center of the road; that he put the chalk in the marks so the marks would be visible to the camera; that the scratches were a lighter gray than the cement; that sometimes these figures photographed nearly alike.
Frank Robbins, a witness in behalf of the appellee, testified that he was at the scene of an automobile accident August 13, 1928, a short distance west of Mahon on state road 24; that he saw marks on the pavement--foot and half from center of the road on right side of center coming toward Huntington--made a circle to left side of road and left pavement, and tracks went down over bank; saw pieces of broken glass on pavement close to where these marks started. He identified Exhibit B as being a correct representation of the scene he saw that day and that the lines in the photographs were exactly as he saw marks on pavement.
Appellant argues that the photographs above referred to were incompetent for the reason that such photographs are "self-serving and have the effect of hearsay evidence; that they represent a theory of appellee and present a tableau effect and magnify the evidence of the witness and give undue prominence to the same; that the same were misleading to the jury; that there was a sharp conflict in the evidence of other witnesses as to the place of the collision, and, therefore, their introduction had the effect of confusing the jury."
The use of photographs as conveying a witness' pictured expression of data observed by him is sanctioned beyond question. Photographs, like maps, models, diagrams and other evidence, are subject to certain restrictions, regulations, and limitations which may affect their admissibility. 2 Wigmore, Evidence § 792. It is a well-established rule, applied in everyday practice in courts, that diagrams and maps illustrating the scenes of a transaction, and the relative location of objects, if proved to be correct, are admissible in evidence, in order to enable the courts or jury to understand and apply the established facts to the particular case. It is difficult to see why a picture representing the location of objects is not likewise admissible when properly verified. It has been held repeatedly that the admission or rejection of photographs in evidence is a preliminary question and lies largely within the discretion of the trial court, and its discretion will not be disturbed unless an abuse of such discretion is shown. Penley v. Teague & Harlow Co. (1928), 126 Me. 583, 140 A. 374; Keating v. Hession (1930), 172 N.E. 111; Gose v. True (1924), 197 Iowa 1094, 198 N.W. 528; Hassam v. Safford (1909), 82 Vt. 444, 74 A. 197; Rodick v. Maine Central R. Co. (1912), 109 Me. 530, 85 A. 41; DeForge v. New York, etc., R. Co. (1900), 178 Mass. 59, 59 N.E. 669, 86 Am. St. 464. The question of accuracy and the assistance of a photographer to the jury is within the sound discretion of the trial court. Eldredge v. Mitchell (1913), 214 Mass. 480, 102 N.E. 69. The accuracy of a photograph as a correct reproduction of what it purports to be should be established to the satisfaction of the court before being admitted as evidence but when its accuracy is shown we have no doubt of its admissibility. As was said in Penley v. Teague & Harlow Co., supra, "Whether it is sufficiently verified, whether it appears to be fairly representative of the object portrayed and whether it may be useful to the jury, are preliminary questions addressed to him and his determination thereon is not open to exceptions," unless, of course, an abuse of such discretion is shown.
2 Wigmore, Evidence § 794, in speaking of the necessity of a witness verifying a map, photograph, etc., says:
Appellant argues that the photographs are incompetent for the reason they are "self-serving and have the effect of hearsay evidence." This is possibly said because "we unwittingly give the document the credit for speaking for itself," but ...
To continue reading
Request your trial