Jones v. Wilbanks, 14933

• Decision Date: 23 July 1987
• Docket Number: No. 14933,14933
• Citation: 735 S.W.2d 409
• Parties: Huey JONES, Plaintiff-Appellant, v. Joe D. WILBANKS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 409

735 S.W.2d 409

Huey JONES, Plaintiff-Appellant, v. Joe D. WILBANKS, Defendant-Respondent.

No. 14933.

Missouri Court of Appeals,

Southern District,

Division Two.

July 23, 1987.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 13, 1987.

Application to Transfer Denied Sept. 15, 1987.

John Wooddell, Steven D. Harrell, Strong & Wooddell, P.C., Springfield, for plaintiff-appellant.

Bruce E. Hunt, Stephen H. Snead, Mann, Walter, Burkart, Weathers & Walter, Springfield, for defendant-respondent.

PREWITT, Presiding Judge.

Plaintiff appeals from a judgment for defendant in accordance with a jury verdict. He contends the trial court erred in excluding from evidence a video tape of the area where the one vehicle collision, which resulted in this lawsuit, occurred and in also excluding certain United States Weather Service temperature records.

On January 20, 1984, at approximately 6:30 p.m., plaintiff was a passenger in a vehicle operated by defendant which left the roadway and struck a culvert, resulting in serious injuries to plaintiff. Plaintiff contended that the incident occurred because of defendant's inattention while driving. The roadway had been cleared of snow recently and defendant claimed that snow along the side of the road had melted during the day and water from it had run into a "dip" on the road and then refroze after the sunset. Defendant testified that when his vehicle reached the dip an "ice slick and that slight turn, the angle of the road just carried me right off the road."

The video tape was made on August 3, 1986, approximately 2 1/2 years after the accident. It shows cars traveling through the area where defendant said there was a "dip" where ice had accumulated. Plaintiff says it was "[o]ffered solely for the purpose of proving no 'dip' existed". Plaintiff contends that the video tape was prepared so that the jury could watch vehicles travel the road and determine if they exhibited a movement indicating a dip in the road.

The issue in admitting or rejecting a video tape is whether it is practical, instructive and calculated to assist the jury in understanding the case. Roque v. Kaw Transport Co., 697 S.W.2d 254, 256 (Mo.App.1985). The trial court's ruling regarding a video tape is accorded great weight and will not be disturbed on appeal unless shown to be an abuse of discretion. Id. See also Beers v. Western Auto Supply Co., 646 S.W.2d 812, 815 (Mo.App.1982); Snodgrass v. Headco Industries, 640 S.W.2d 147, 159 (Mo.App.1982); Cryts v. Ford Motor Co., 571 S.W.2d 683, 691 (Mo.App.1978) (perhaps greater degree of caution is required in admitting motion picture because of danger of false perspective or of intentional fabrication). See generally Note, Stuart W. Conrad, Evidence--Admission of Video Tape, 38 Mo L.Rev. 111 (1973).

It is possible that a dip existed but that it was so gradual or slight that vehicles traveling over it made no perceivable movement indicating a dip. It is unlikely that any prejudice to plaintiff resulted from excluding the exhibit as its ability to convince a jury that no dip existed is very questionable. There was no abuse of the trial court's discretion in excluding it. This point is denied.

Plaintiff sought to offer as rebuttal evidence certified copies of meteorological records from the files of the National Climatic Data Center of the United States Department of Commerce. These records purported to show temperatures on January 20, 1984, at reporting stations in Harrison, Arkansas; Mountain Home, Arkansas; and Dora, Missouri.

Plaintiff contended that these were the three closest reporting stations to the scene of the collision and wished to read to the jury that the maximum temperature shown on that date in Harrison, Arkansas was 16? Fahrenheit, Mountain Home, Arkansas 21? Fahrenheit, and Dora, Missouri, 12? Fahrenheit. Dora is approximately 14 miles north of the collision site and Mountain Home approximately the same distance south. Harrison is approximately 45 to 50 miles southwest of the collision scene.

Defendant objected to the records because they were not shown to be temperatures taken under "the same or similar circumstances" as there had been "no showing what the elevation was at these particular locations in comparison with what the elevation was at this location [where the vehicle left the road]." The trial judge sustained defendant's objection, stating:

The Court believes this is injecting a false issue in the case, because the weather records at other locations, there's no showing as to where these temperature readings were taken, whether they were taken on the surface and, if so, what kind of surface, or in the air. In addition, the Court is aware that there are areas of the roadway where the sun does hit the roadway, an asphalt roadway especially will draw heat and it will be hotter than the air even in the immediate vicinity, so if it is offered to establish that it could not be melting on that day, it is dangerous in that it lacks sufficient probative value, so I refuse the exhibit.

United States government weather records can be admissible. See Schucker v. Missouri Department of Natural Resources, 703 S.W.2d 1, 4 (Mo.App.1985) (upholding the admission of weather records taken 65 to 70 miles from the accident site); § 490.220, RSMo 1986. See also Armstrong v. City of Monett, 228 S.W. 771, 774 (Mo.1921) (testimony that plaintiff "thought it was freezing weather" lacked probative force as it conflicted with the "official weather report" of temperature taken approximately 25 miles away); Monahan v. City of New York, 31 A.D.2d 933, 298 N.Y.S.2d 822, 824, (1969) (U.S. Weather Bureau's reports prima facie correct); Richman v. City of New York, 54 N.Y.S.2d 148 (N.Y.App.Term 1945) (weather bureau records " 'should be accepted rather than indefinite opinions of witnesses' ").

Defendant does not contend that such records are always inadmissible. He contends that these records were inadmissible because they lacked probative...