Plaintiff brought this action against the defendants for damages resulting from a highway accident. The trial court directed a verdict for the defendants and plaintiff appeals.
The plaintiff was the owner of a tractor and refrigerator trailer. The defendant Herman was the owner of *401 a tractor and tank trailer. On October 9, 1951, plaintiff’s traсtor and trailer was being driven .north on U. S. Highway No. 275 by Pete Klassen, plaintiff’s driver. An alternate driver, Norman Raymond, was sleеping at the time of the accident. The Herman tractor and trailer was being driven south on the same highway by Othe Middaugh. For convenience we shall refer to plaintiff’s tractor and trailer as the refrigerator transport аnd that of the defendant Herman as the oil transport.
The collision occurred about 4:30 a. m. The pavemеnt was 18 feet 4 inches wide and free from snow, ice, or moisture. Plaintiff’s refrigerator transport was 47 feet 3 inches lоng. Its tractor had two driving axles with eight wheels on its rear. It appears that in some manner the left driver wheels on thе refrigerator transport tractor collided with the rear-wheel-trailer assembly on the oil transport. It was dаrk at the time of the accident, plaintiff’s driver testifying that each was driving with dimmed lights.
The accident happened 9 miles south of Council Bluffs, Iowa. Plaintiff’s refrigerator transport came down a long hill at the foot of which the road curves to the right and straightens out on a comparatively level terrain. The driver said he saw the oil transport аpproaching about 200 feet away as he came around the curve. He saw nothing unusual as they apрroached each other. The front ends of the transports met and passed without mishap. There is no evidеnce by plaintiff’s driver that defendant’s transport crossed the center of the road. There is no evidence by the drivers that either violated any rule of the road. The damage to the two transports shows, however, that thе driver wheels of plaintiff’s tractor collided with the tandem wheels on the rear of defendant’s trailer.
Plaintiff prоduced evidence of the location of the transports after the accident and the locatiоn of various tire marks at the time of and immediately following the *402 collision. In construing the evidence most favorаble to the plaintiff, the tire marks indicate that the refrigerator transport did not approach closer than 9 to 12 inches of the center line of the highway. Plaintiff’s evidence also indicates by the tire marks on the pаvement that the oil transport did not cross the center line. It did parallel it as close as 4 inches on its own side of the road for some distance at and following the point of impact. There is no evidence that the transport was wider than its wheels to the extent that it played any part in the accident.
The evidence in thе record can be summed up as follows: No eye witness testified that either vehicle crossed over the сenter line of the highway immediately before or at the time of the accident. The physical facts, cоnsisting of marks on the pavement, are not such that a reasonable inference could be drawn therefrom that either vehicle crossed to the left of the center line of the highway. Such evidence will not sustain a finding оf negligence on the part of either driver.
Negligence is never presumed and it cannot be inferred from the mere fact that an accident occurred. Laurinat v. Giery,
In order for circumstantial evidence to bе sufficient to require the submission of an issue of negligence to a jury it must be such that a reasonable inferencе of negligence arises from the circumstances established. If such evidence is susceptible to any other reasonable inference, inconsistent with the inference of negligence on the part of the pаrty charged, it is insufficient "to carry the case to the jury. Ulrich v. Batchelder,
The appellant complains of the action of the trial court in refusing to admit photographs into evidence
*403
taken at the scene of the accident. The rule is that if it be shown that a photograph is a true and correct representation of the place or subject it purports to represent at a time pertinent to the inquiry, it is properly аdmissible as evidence. We think the trial court should have admitted the photographs offered in the present case. We fail to see, however, that the plaintiff was prejudiced by the court’s action. Witnesses had already testified to all the facts represented by the photographs. A directed verdict would have been rеquired even if they had been admitted into evidence. They tend only to explain and make clear the evidеnce of witnesses which was already before the court. Thomas v. Estate of Thomas,
The trial court directed a verdict against both parties on the theory that both were guilty of such negligence as to bar a recоvery. The result was correct but the reason given was not. A verdict was properly directed against the plaintiff for the reason that he failed to prove any negligence on the part of the driver of the truck belonging to the defendant Herman. The counterclaim of the defendant Herman was properly dismissed for the reаson that she waived it when she moved for and procured a dismissal of plaintiff’s cause of action without first moving to withdraw the counterclaim. Harbert v. Mueller,
We find no prejudicial error in the record. The judgment is affirmed.
Affirmed.