*1 101 saying ruts, justified especially in not be in connection with this court would if not or and jury manhole, did that it of the which would so determined the the existence dangerous not that was at the manhole and cause a condition somewhat strike causing proximately point. negligent particular a condition that city improved road constructed this the accident. The high along top that the manhole the of this bank It is true both knowledge declivity fell had the car must be assumed to have over which and the contributing proximate causes the road of existence from the time its both improved by city. is Notice for It is therefore concluded was the accident. properly some one otherwise did submitted the benefit of who issues that these knowledge, jury he has knowl- determination and not have and who for edge right no to a notice. of the is determined has claim to attitude mental to a considerable extent interroga- give in- It is information where exist, not and the formation does otherwise tories answered. declivity part along plaintiff of the road was on the of the location It is claimed something always city knowl- in in the trial had that there was error error edge charge permitting scene of from the time took over the it court to view road. had of the of substantially when the evidence the accident A claimed that in small is the verdict this all been introduced. testimony accepted excessive. will be said there- case was But little amount of after. We do of That is a was subject. upon ty-nine years plaintiff that This was twen- not find error in the conduct age, upon dependent permitting a man in was court so the view'. know, matter, gen- for a livelihood manual exertion or so far as we discretionary erally This in labor. accident resulted court and no with the back, leaving by any a fractured vertebrae in his fixed time has been established indicates, him, medical in or cited this case w'hen decision place. in and case, received a view otherwise shall take Whether view mobility back, discretionary lessened of his with the shall be allowed by exertion, pain ity usually arranged caused with reduced abil- the view is court and labor, court, perform cir- and under the convenience of the the wit- meet the nesses jurors, during cumstances we are not able to that some time large justify verdict was so as to the reversal a trial. ground. suggested that coun- to have been seems sugges- plaintiff think that this constitutes a sel error that the burden practically urged plaintiff tion that has been that was was on the show he any event, quite contributory guilty negligence. in well assured that case. In this feel not we Such careful His examina- the rule in this case. would not be given any presump- tion we the issues and claims raise did not such parties, casting any that we did not fail to him. It is con- the con- burden any proposition urged, urged sider counsel for error also city has clusion been reached court of Struthers was entitled justified roadway not would be authorized to or if the condition of this notice of disturbing finding pre- dangerous, this verdict or if it or its condition judicial negligence. municipality or reversible A error occurred is en- stituted trial, judgment dangerous Court when a condition titled to notice placed public Pleas is Common therefore affirmed. street exists in a not Judgment itself, by responsible city affirmed. city for which the knowledge, has no or the POLLOCK, JJ, PARR and concur. length must have existed such a condition know'ledge presumed. time can be however, rule, to con- This does not extend city re- itself was ditions for which ’ TURNER, HOOVER vet Admr placed sponsible effect and which knowledge Perhaps should itself. there have come to Appeals, Dist, Ohio 2nd Franklin Co city condition of No 2076. roadway Decided Oct if as a matter that was ash defective, proposition of is even fact presumed somewhat to the knowl- edge city it had constructed by using improved a material road sort of which if with considerable not watched depressions regularity develop into would *2 Henry Binns, Columbus, G. and James Henderson, Columbus,
F. error. Cline, Sillman, L. John L. Justin Co- lumbus, for error.
10; *3 HORNBEOK, J. grounds It is asserted as one of the physical error by facts that -the established (cid:127) completely any theory the record refute its which the could have based plaintiff. verdict in behalf of physical The monumental fact which in conjunction testimony with the of the Tur- ners to confound position was the of the automobile and' truck after the collision. The automobile being over its much further than required by was the rules of the road and being, said, the truck as several witnesses including defendants, top one of the on Studebaker, supported the the the claim collision must have occurred on the north side and to the left of the driver ThisAheory of the truck. was corroborated by proof tracks, of the double truck, leading along to be those of the wrong thoroughfare side of the for a dis- up tance of the to 125 feet and almost 1.00 place where the cars were found after the collision. It is true by witnesses, was refuted some of the but jury. the fact was theory On the other hand the of the de- supported by fense was two facts Stubbs, namely, besides roadw'ay extending marks from the south side of the road and across the place road near to the where the cars were rest, presence glass found at the south side of the road. It would seem marks, by defense, if these stressed produced in the manner in which were they claim, namely, by dragging they broken down rendered im- possible that the cars came to- gether beyond the north side of the thor- oughfare. However, dispute there was cerning marks, the location of these plaintiff’s testifying they witnesses only points seen be under where stood, the trailer and there w'as also testi-
mony tending they may to show that have operated along been caused a disc cutter the road Mr. Moats. We can there was such conflict in the record tions It is asserted that respecting require road as to were noted. marks these permitting court erred in certain of the determine the fact. pictures plaintiff position to be offered be- Attention is directed properly especially cause not identified the trailer after and erred in the truck and the collision admitting photographs not by acci- occurred as claimed the defendant. not have dent could position. plaintiff by of their reason that sufficient identifica- zigzagging photographs required trailer were if the would seem tends to made at the time introduced, and before as the prove, stop necessary produce may come to it is not facing person pictures either northeast who after the collision takes to identi- *4 Likewise, fy Massey, Eventually, pho- if truck and them. the Mr. southeast. the or straight tographer pictures moving line due in a who took the trailer were was called road, stand, interrogated fully respecting side east on their by upon being clearly any prejudice struck them and would be unusual removed coming by the road which across an automobile from the south side all of the could have resulted the failure this would cause of to call him in first the instance. objects moving pictures by plaintiff to veer to the Some of the introduced by Massey were request taken of the road. Mr. north side the present However, many factors are of defendants so and therefore were known by 'tending representa- in collision them automobiles to be fair and correct to cause they objects positions they purported tions of to when have the certain which to assume - largely speculat- portray. it is ceased to move that photographs by The circumstances determine from ive to how the de- represented fense and a collision occurred. refused the marks in the that the was well road We convinced which are defendants’ witnesses resolving rights the testified within its there and which it was against by upon of all of it portion fair a consideration were caused a broken dragging upon of and in favor the the defendants truck the of the road after plaintiff. the collision. paint- of the claim of the The marks had been pictures ed It that the verdict of white is further claimed and in one the num- by passion and bers clusive ing the prejudice, was stimulated had been inserted from 1 to 15 in- purpose misconduct of coun- induced for the of show- of counsel claimed sel. The misconduct was in the particularly touching total number such marks on questioning his manner of and road. It was testified that when the pictures queries day made to witnesses were taken the was dark and relationship ordinary photograph and an their insurance display would not companies. respecting the and of court marks, insurance true situation pleadings rele- expedient made it The state of the to make them visible the indulge proper painting considerable vant and them was resorted to. The testimony concerning opinion they latitude in the ofwas should not ownership, operation admitted, undoubtedly and be that control permit questions trucking company they properly represent did not purposed purported insurance true pict to disclose situation which to de- carried, paid, required to whom loss ordinary in whose name etc. tions on as is under the rules ques- that some. of the is evidence. unnecessary were this and We have examined the cases cited propriety. particularly Hayes could have been omitted counsel and v Emerson et, questions However, many objected King (Cal.), not Pac., v Emerson say permitted- can not to and we where the court the intro- respecting inquiry photo showing insur- whole that duction aof a skid mark generally painted of counsel which ance nor conduct had been white for its full improper length according nor the verdict mani- was fests the part passion prejudice syllabus or on the of witnesses in the case. The reads: jury. photographs Photograph A taken Mr. “1. number of shown to be faithful London, Ohio, representation produce Massey, photographer at purports what it to re- by plaintiff approximate were offered and received is admissible aid photo- applying Three the court. evidence. C, G, graphs, E and “2. Defendant’s Exhibits is for trial court to determine photograph excep- to which whether representa- offered refused correct
1C5 ruling object, sus- be will REHEARING MOTION FOR ON in dis- unless has been abuse tained cretion.” 3, 1931 Decided Nov upon the COURT this case BY THE It will be noted syllabds is admitted rather than exhibit plaintiffs application of Submitted on admissibility authority of evidence for the rehearing. error for a carefully propo- It is in this unto that offered case. We have considered like presented by sitions counsel testi- authority to the effect likewise mony connection find therewith. We photos largely a mat- of such admission argument supporting no timony presented nor tes- advanced the trial court and ter of discretion of was not covered which unless We not be disturbed abused. it will very briefs on exhaustive behalf of by error heretofore considered trial court would can gave court. consideration in this had it admitted erred case urged general way claims ed and in a discuss- opinion. photographs, this charac- but most of them our former should be with caution ter received may exceptions, first, There testimony two *5 subject that it is the obvious reason George Turner to the effect brought stop that he with the culvert to a jury Studebaker had In this case the distortion. right him; ahead of benefit of statements of the wit- full second, respecting impairment his respecting nesses these marks which were Granting vision. he was that mistaken photos portrayed in and we wilfully does fying follow that was fact, he testi- say the court erred in refus- an can not that untruth. In it is purposed falsify that had he not have he would ing length which admit them. The to employed placed the Studebaker east of photography this sort of could be position the culvert in a where all the appear if kind would in a case of this obviously facts would have refut- in had the marks testified to the record ed his statements. The Studebaker was not painted, put photographed and been east culvert record. There would have the the double tread marks which it was claim- defendant struck error advanced. If it was the truck it driven backward possibly those ed were made Many and not forward. records have been Mr. Moats were made which his disc road, presented many to this court and no doubt cutter, perhaps other marks more will be wherein there are statements together photo- those in the they actually inconsistent with the facts as practices graphs Such could tendered. existed, prone err, and witnesses are easily abuse, subject of be the court but because do so it does not follow great receiving care in should act with nothing they say worthy of belief. any photos taken after has been Touching impairment of one of Mr. change objects -which the sub- are eyes, Turner’s can but we ject the case. of evidence in The action of opportunity along had full to consider this refusing trial court in admit to. testimony, with other its verdict princi- photographs is in accord with the found that the collision was not caused following ple au- announced in Ohio any any negligence manner because of Jur., 17 O. thorities: Mr. Turner. recognize We sharp there is “Preliminary proof should be made flict in the if the object of the which plaintiffs in error is correct fairly represented.” photograph is theory of the fail, defendant error must judgment but the in our had a Varner, O.C.C., 386; H. & Varner 16 C. v accept evidence as more Ougo, R. 109. D. Co. v De Oh St supporting the claim of the all of errors as- We have examined error than that of the in error. any find that was so serted and do not warranting see no reason granting require prejudicial as to re- to defendant application rehearing, and it will judgment. will therefore versal therefore be refused. affirmed. ALLREAD, PJ, KUNKLE, HORNBECK and PJ, KUNKLE, J, ALLREAD, concur. JJ, concur.