Lamb v. Page

• Decision Date: 05 June 1969
• Docket Number: No. 11581,11581
• Citation: 153 Mont. 171,455 P.2d 337
• Parties: Lawrence LAMB and Clara Lamb, Plaintiffs and Respondents, v. Ralph PAGE and Mabel Page and Margaret M. Page, Defendants and Appellants.
• Court: Montana Supreme Court

Page 337

455 P.2d 337

153 Mont. 171

Lawrence LAMB and Clara Lamb, Plaintiffs and Respondents, v. Ralph PAGE and Mabel Page and Margaret M. Page, Defendants

and Appellants.

No. 11581.

Supreme Court of Montana.

Submitted April 14, 1969.

Decided June 5, 1969.

Lyman H. Bennett, Jr. (argued), Bozeman, for defendants and appellants.

Lamb & Snyder, Franklin Lamb (argued), Billings, A. E. Sheridan, Waukon, Iowa, for plaintiffs and respondents.

BONNER, Justice.

The plaintiffs, Lawrence Lamb and Clara Lamb, brought this action for recovery of damages for personal injury claimed by Clara Lamb and for property damage to the automobile of Lawrence Lamb. Defendants, Ralph Page, Mabel Page and Maragaret M. Page, counterclaimed for damages to their automobile and after a jury trial the jury returned a verdict for the plaintiffs in the amount of $6,080. Defendants' motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial were overruled by the district court and they now appeal.

This action arose our of two automobile accidents on the night of January 8, 1967, between the hours of 9 and 10 p. m. on the highway between Willow Creek and Three Forks, Montana. On the evening of January 8, 1967, the highway in question was covered with what is generally referred to in the northwest as black ice, that is, ice which is very difficult to see, through which markings on the pavement are visible, but yet is very slick. The night was such that, in the words of one witness, 'it was a hazy type of night where your lights don't penetrate darkness'.

Mebel Page, one of the defendants here, was proceeding towards Three Forks when she lost control of the automobile she was driving and left the highway. The point at which the automobile left the highway was just at the beginning of an 'S' curve where the highway turns to the left, crosses a set of railroad tracks and then turns back to the right. At the beginning of the curve to the left the automobile went off the pavement on the left side, struck a utility pole breaking it off, and came to rest with its front end off the pavement and its rear end extending out onto the pavement. There is a dispute between the parties as to how far the rear of the automobile actually extended out onto the pavement. The plaintiffs contend that it stuck out into the right lane of traffic while the defendants contend it did not.

Mabel Page left her automobile unattended and proceeded to the home of her married sister in order to secure help. It appears from the evidence that no lights were left burning on the vehicle to warn approaching motorists. This accident will hereinafter be referred to as the first accident.

Clara Lamb, one of the plaintiffs here, left her home in Willow Creek at approximately 9:30 p. m. on the night of January 8 and was proceeding to Three Forks where she worked the 'graveyard' shift at one of the local restaurants. In going from Willow Creek to Three Forks she traveled the same route and on the same side of the highway Mabel Page was traveling before she left the highway.

Mrs. Lamb testified that at the bottom of a slight dip at the beginning of the 'S' curve as it begins its turn to the left her lights revealed an Oldsmobile sedan crosswise on the highway, without lights and completely blocking one lane of traffic and partially blocking the lane she was in. She stated she made every possible effort to avoid a collision by carefully applying her brakes and by driving onto the right shoulder of the highway as far as possible. However, she collided with the parked vehicle and them guided her own vehicle off the highway onto an approach road which entered the highway from the right. This accident will hereinafter be referred to as the second accident.

The only eyewitness to testify at the trial relative to the positions of the cars prior to the second accident was Clara Lamb. For reasons not revealed by the record defendant Mabel Page did not appear and testify at the trial. In addition, Clara Lamb was also the only eyewitness to the actual second accident.

There is conflict in the record with regard to the position of the Page automobile before and after the second accident. Clara Lamb testified that the Page automobile had been left in such a position that before she struck it the rear portion extended over the center line of the highway; it extended so far over the center line that she could not avoid it by driving on the shoulder of the highway. Other witnesses for the plaintiffs testified the Page vehicle extended over the center line of the highway after the second accident.

Witnesses for the defendants testified that the Page automobile, as left by Mabel Page when she went to seek help, rested with its transmission over the stub of the broken telephone pole; that both before and after the second accident the Oldsmobile sedan's transmission was resting on the broken stub of the utility pole and the car merely pivoted on the stub when hit by the Lamb vehicle.

Counsel for defendants attempted to show through the testimony of Dr. Roy Wiegand, a professor of physics, that it was impossible for the Page vehicle to extend to or beyond the center line of the highway either before or after the second accident, assuming the vehicle's transmission was resting on the broken stub. The trial court sustained plaintiffs' objection to the admission of such testimony.

It was stipulated by the parties in the pretrial order that all photographs of the accident location could be introduced without foundation proof. However, at the trial and in spite of the stipulation and order, counsel for defendants objected to the introduction of a photograph offered by the plaintiffs asserting the photograph was remote in time from the accident and showed conditions different from those at the time of the accidents. The objection was sustained.

Later defendants' counsel attempted to introduce photographs taken at some indefinite time after the accident. The court on plaintiffs' objection refused to admit them relying on plaintiffs' assertion that they did not truly represent the scene as of the time of the accidents, Clara Lamb having previously testified that conditions as portrayed in the photographs were not the same as those at the time of the accident. The court also noted there was no showing of who took the photographs and further that the stipulation in the pretrial order had 'went over the board' because of defense counsel's first objection to introduction of photographs offered by the plaintiffs.

As specification of error #1, defendants contend the photographs should have been admitted since under Pilgeram v. Haas, 118 Mont. 431, 167 P.2d 339, photographs may be proved to be correct representations by witness other than the person who took them.

In Pilgeram v. Haas, supra, at p. 449, 167 P.2d at p. 348, this Court said:

'Where the nature or condition of a place becomes a matter of controversy in a civil action, photographs of the place shown to be true representations of it at the time in question are generally admissible in evidence. Photographs may be proved to be correct representations by witnesses other than the person who took them.'

Here, the objection made was based on the fact that the photographs did not accurately portray conditions as they existed on the night of the accidents, not that the photographs were taken by someone other than the witness testifying.

This Court in Toole v. Paumie Parisian Dye House, 98 Mont. 191, 39 P.2d 965, noted that the time when photographs were taken must be satisfactorily proven. There was no attempt here to prove when the phtographs were taken. In addition, In Teesdale v. Anschutz Drilling Co., 138 Mont. 427, 439, 357 P.2d 4, we held:

'The trial court has wide discretion in admitting diagrams, maps and photographs that will assist the jury in understanding a case. * * *

"The general rule governing the admissibility of photographs is that they stand upon the same footing as a map or plat. * * * And 'it is not even necessary that the situation or condition should be precisely the same, but it is sufficient if the situation is substantially unchanged, and even the fact that there have been changes in conditions, will not necessarily exclude a photograph where the changes can be and are explained, so that the photograph, as explained, will give a correct understanding of the condition existing at the time to which the controversy relates.' 22 C. J. 920."

We hold that the court below was correct in denying admission. First, there was no offer of proof of the element of time, that is, when the photographs were taken. Second, there had been substantial changes and there was no attempt to give any explanation of the changes so as to give a correct understanding of the conditions as they existed at the time of the accidents. Two of the photographs depict a highway absolutely barren of any ice or moisture, taken during daylight hours and no snow on the ground as there was the night of the accidents. The other two photographs also show substantially changed conditions in that while they are attempts to show the location of the broken utility pole, one photograph depicts the hole left by the removal of the stub, the other taken from across the highway shows three-fourths of the width of the pavement and what appears to be the stub of the pole lying in the borrow pit next to the road.

Specification of error #2 is that the court erred in sustaining plaintiffs' objection to the testimony of Dr. Wiegand, defendants' expert witness. The use of Dr. Wiegand was an attempt by the defendants to show that if the Page vehicle's transmission was resting on the broken stub, then the rear of the Vehicle could not possibly have extended beyond the center line of the highway either before or after the second accident.

In Eby v. Foremost Insurance Co., 141 Mont. 62, 374 P.2d 857, we quoted from Nutt v. Southern Pac. Ry., 25...