Jefferson v. Pinson, 39022

• Decision Date: 04 January 1954
• Docket Number: No. 39022,39022
• Parties: JEFFERSON et al. v. PINSON.
• Court: Mississippi Supreme Court

Page 234

69 So.2d 234

219 Miss. 427

JEFFERSON et al. v. PINSON.

No. 39022.

Supreme Court of Mississippi.

Jan. 4, 1954.

Brunini, Everett, Grantham & Quinn, Vicksburg, for appellants.

Teller & Biedenharn, W. J. Vollor, Vicksburg, for appellee.

HALL, Justice.

This appeal is from a judgment in favor of appellee for damages on account of the death of Dr. Fred E. Pinson, Sr., resulting from injuries sustained by him in a collision between his Dodge automobile and a Ford panel truck belonging to appellant at the intersection of Jackson and Farmer Streets in the City of Vicksburg.

1. Appellant contends first that the trial court erred in admitting in evidence a plat of said intersection prepared by a surveyor immediately preceding the trial and several months after the collision. The plat in question shows both streets, their respective widths, and numerous other stationary objects in and about the scene. The only objection to the plat is that it shows two stop signs at each approach to the intersection on Jackson Street. It was admitted by both parties and shown conclusively by the evidence that these stop signs had been placed there by the Chief of Police about six weeks before the trial and several months after the accident. The surveyor who made the plat testified that he depicted the scene as it existed when he took his measurements and observations. He frankly admitted that he did not know when the signs were erected, but he testified positively that he is familiar with the intersection, that he lived there when he was a boy, that he passed the scene frequently and that he knows that, except for the stop signs, the plat shows the situation exactly as it existed at the time of the accident. It fact, it is not disputed that all the measurements, distances, directions, and surrounding objects are exactly as they existed at the time of the collision except as to the stop signs, and appellee did not claim that such signs were there when Dr. Pinson received his fatal injury. Moreover, the trial court granted appellant an instruction as follows: 'The court instructs the jury that, at the time of the accident in this case, neither Farmer nor Jackson Street was a through street. There were no stop signs in either direction. Neither Farmer nor Jackson Street and any priority or precedence at said intersection. You are not to consider as of any weight or importance whatsoever the circumstance that stop signs have been placed at said intersection at some time after the accident.' Appellant offered in evidence several photographs of the scene, taken shortly after the collision, all of which show that there were no stop signs on either street at that time. We do not think that the admission of this plat was reversible error, especially in view of the fact that appellee admitted that the signs were not there when the accident occurred and there is no claim that the plat is incorrect in any other particular.

In Jones v. State, 148 Miss. 531, 535-536, 114 So. 343, this Court, in passing upon a similar question, said:

'Reversal is urged by the appellant upon one ground alone, and that is that the court erred in permitting the state to introduce before the jury a certain map of the surroundings and inanimate objects at the place where the homicide was committed. The complaint seems to be that the map was inadmissible, because it located 'persons in the field and other matters on there that are not permanent fixtures, and of necessity were entered by the witness on hearsay testimony' (quoting from appellant's brief).

'The basis of the contention of counsel for the appellant appears to be founded upon the rule announced in Fore v. State, 75 Miss. 727, 23 So. 710, in which it was held that: 'Photographs which are mere artistic reproductions of situations planned by the state's chief witness, although taken at the place of the homicide, are not admissible in evidence.'

'We do not think the rule announced in the Fore Case, supra, is applicable to the case at bar, the reason that the map introduced in the instant case was identified by the testimony of witnesses as being a fair representation of the grounds, surroundings, and inanimate objects located at the place of the homicide. This map was shown to have been drawn by persons who measured the ground, ditches, fields, and such inanimate objects and conditions, and it was not a photograph or map purporting to show how the tragical occurrence took place; and the hearsay testimony complained of by appellant with reference to the location of the inanimate objects, distances, and surroundings on the map was not objectionable, because it was information given and substantiated, under oath, at the trial; it was subject to dispute, and the correctness of the map offered to the jury was a question to be decided by the jury, from the testimony of witnesses showing the locus in quo.' (Emphasis supplied.)

In Hancock v. State, 209 Miss. 523, 535-536, 47 So.2d 833, 838, we said: 'To require pictures to be made at the exact time of death, in cases of this kind, or at the exact time of accidents, in cases of that type, or under other circumstances which might be mentioned, would exclude all pictures in such cases. All that is required, as to the time of making photographs, is that they be verified as substantial representations of the conditions as they existed at the time in question. Oral proof can explain the changed conditions. 'Photographs of the scene of an accident taken at or near the time are not always obtainable, and the only practical rule would seem to be that the changes must not be such as to destroy the substantial identity and that the changes, whatever they may be, should be carefully pointed out and brought to the jury's attention.' 20 Am.Jur., Sec. 731, p. 611.' (Emphasis supplied.) See, also, Orr v. Columbus & Greenville Ry. Co., 210 Miss. 63, 67, 48 So.2d 630.

In the case at bar there was oral proof to explain the only difference between the plat depicting the scene just before the trial and the scene at the time of the collision, and we do not think there was any error in admitting the plat in evidence.

2. It is next contended that the verdict of the jury is against the overwhelming weight of the testimony and the physical facts. A consideration of this point necessitates a statement of the facts in evidence. Farmer Street is 30 feet in width when measured on the paving from curb to curb, and runs north and south. Jackson Street is 38 feet in width...