#### Rutherford, Appellant, *v.*Western Union Telegraph Co., Appellee.

(No. 3726

Decided October 4, 1944.)

*Mr. Joseph W. Horner,*for appellant.

*Messrs. Vorys, Sater, Seymour & Pease,*for appellee.

Geiger, J.

The facts presented by the pleadings are to the effect that on the 14th day of November 1941, plaintiff was a passenger in a Plymouth automobile while it was driven westwardly on U. S. route 40 by a Lottie Standish, at the rate of about 40 miles an hour; that when the car in which the plaintiff was riding as a passenger arrived at a point two and one-half miles west of Etna, a truck of the defendant, driven by its agent at a dangerous rate of speed (about sixty miles an hour), without sounding a horn or in any manner warning the driver of the automobile, cut in front of the automobile in which plaintiff was a passenger and without'any signal came to an abrupt stop, causing the truck and the automobile in which plaintiff was riding to collide; that the plaintiff was injured as alleged ; and' that the damage and injuries to her were *177due solely and proximately to the negligent operation of the truck in the following particulars:

(1) That the defendant was operating its truck at an unlawful and dangerous rate of speed.

(2) Defendant failed to have its truck under proper control.

(3) That the defendant failed to blow its horn or to give any signal.

For answer the defendant admits certain allegations, denying all others and alleges that if the plaintiff was injured or damaged, such injuries or damages were caused solely and proximately by the plain tiff’s own negligence and the negligence of the person driving the automobile in which she was a passenger and without any fault or negligence on the part of the defendant.

The case was tried before a jury which unanimously held in favor of the defendant. A motion for a new trial on the usual grounds was overruled and judgment entered on behalf of the defendant.

The evidence shown by the bill of exceptions discloses a marked difference in the testimony of the plaintiff and her witnesses from that of the defendant and its witnesses.

Briefly, the plaintiff’s evidence, supported by the driver of the car, the plaintiff, and two other ladies riding in the car, is to the effect that about ten minutes before the collision the .plaintiff’s car passed the defendant’s truck which was then being loaded with tools used by the agent of the defendant in tree trimming ; that as the car in which the plaintiff was riding proceeded westward, the truck at a high rate of speed passed the automobile and cut in so closely to its line of progress that the driver of the automobile was in serious danger from the proximity of the truck overtaking and passing the automobile; that the truck drew in in front of the car in which the plaintiff was riding *178along the north lane of the highway, and suddenly, without any warning, stopped, leaving the driver of the automobile with no other course of action than to endeavor to stop her automobile by the use of the brakes; and that due to the proximity of the stopped truck and to the fact that at the same time on either side there were cars passing in both directions which pocketed the automobile, the only recourse was to collide head on with the rear of the stopped truck.

It may be said in passing that the ladies who testified did so in a clear and convincing manner, describing the circumstances surrounding the collision as it appeared to them. On the other hand the driver of the truck and the employees of the defendant, with equal clearness denied that the truck passed the car in which the plaintiff was riding, but asserted the facts to be that it was proceeding in a lawful manner along the north lane of the highway, going westward and that it was slowed down gradually upon the discovering of a school bus on the opposite side of the road, which was then about stopped to permit children to alight. These witnesses asserted that after the truck had so stopped, almost instantly the car driven by Lottie Standish collided with the rear of the truck with such force as to drive it forward about twenty feet. The testimony of the agents of the company was supported by the testimony of the witnesses who saw the collision and asserted that the truck did not cut in around the left side of Lottie Standish’s automobile, but was being driven at a proper rate of speed in the north lane of the three-lane highway. The witnesses all asserted that the truck came to a stop because at that point a school bus loaded with children was proceeding eastward.

The jury found in favor of the defendant.

The defendant introduced a series of photographs taken by a commercial photographer shortly before the trial, and it appeared from the testimony of the *179ladies riding in the car, that on the next day the agents of the defendant came to the home of Lottie Standish and sought to ascertain the extent of the damages that may have been caused; that when one of the agents of the defendant made inquiry of Lottie Standish, she stated that she said to him, “Why in the devil,” or something like that, “did you run around us so fast and stop so abruptly?” and that one of the agents of the defendant, Cline, replied to this, “I lost my head and I told the driver to put on the brakes immediately.” This conversation was testified to by other witnesses on behalf of the plaintiff. Objection was made to the introduction of the photographs on the ground that they were not taken at or near the time of the accident. The court, over the objection of the plaintiff, permitted the photographs to be introduced in evidence and submitted to the jury, and as to the conversation between Lottie Standish and Cline, the court charged, “Evidence was admitted concerning statements made by the witness Cline on the day following the accident which, Mr. Cline, of course, denied having made the statement [sic], and you will consider this evidence concerning statements made by him on the day following the accident for the purpose of determining the credibility of Mr. Cline as a witness and for no other purpose whatever.”

Assignments of error are asserted to the effect:

(1) That the court erred in the admission of evidence (which related to the introduction of the photographs) .

(2) That the court erred in refusing to admit evidence offered on behalf of the plaintiff (which related to the statement alleged to have been made by Cline).

(3) That the court erred in its charge to the jury in the instruction that Cline’s statement was to be considered only for the purpose of determining the credibility of Cline as a witness and for no other purpose whatever.

*180As to the assignment of error in reference to the photographs, we find from inspection and evidence that they were clear-cut photographs of the highway, adjacent buildings and the marking of the three lanes of traffic. Evidence was introduced to the effect that the photographs correctly represented the condition of the roadway as it existed at the time of the accident. No attempt was made to disclose by the photographs any conditions existing at the time of the accident which did not relate to the permanent and continuing condition of the highway. We are of the opinion that the court did not err in permitting the introduction of the photographs and that assignment of error is overruled.

As to the charge of the court in reference to the statement made by Cline to Lottie Standish, which he denied having made, the court refused to. permit the same to go to the jury for any other purpose than to affect the credibility of Cline, the court holding that the statement being made on a day subsequent to the accident was not a part of the *res gestae,*and could not be considered for any other purpose than to affect credibility. In this we believe the court was correct and that assignment of error is overruled.

We find no error in the general charge of the court.

The case is eminently one for the determination of a jury, as testimony was in conflict and the witnesses testified to the existence of diametrically opposite conditions.

We find no errors requiring the reversal of the order of the court finding upon the verdict of the jury in behalf of the defendant.

The judgment of the court is affirmed.

*Judgment affirmed.*

Hornbeck and Montgomery, JJ., concur.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.