CULLEN, Commissioner. A truck being operated by Carl May, in a northerly direction on a black-top county road, collided with an automobile driven by Walter Caton, which was proceeding in the opposite direction. The vehicles 'sideswiped' at a point where the road curved to Caton's right and to May's left.
In an action against May, Caton recovered judgment for $5,000. On appeal, May contends that the verdict was flagrantly against the evidence.
Caton and a passenger in his car testified that the truck was on the wrong side of the road. May and a passenger in his truck testified that the automobile was on the wrong side. May's contention is that the physical facts show conclusively that the automobile was on the wrong side.
While there is some discussion in May's brief about skid marks on the shoulder on his side of the road, and the position of glass and debris, May bases his argument almost exclusively on photographs purporting to show the position of the two vehicles after the collision.
The photographs show the truck with its right rear wheel in the ditch on its side of the road, and with the left rear wheel and right front wheel on the edge of the paved surface. The automobile is facing south, parallel with the road lines. There is no white line marking the center of the road, but the left wheels of the automobile appear to be two or three feet across the center line, on the truck's side.
The road slopes to the south at the point of the accident, and May admits that the truck rolled back seven or eight feet after the collision, and before the pictures were taken.
If it was undisputed that the truck rolled back only seven or eight feet, and that the automobile did not roll forward at all, after the collision, the photographs would be convincing proof that the accident happened on the truck's side of the road. However, there was testimony that the truck rolled back, or was pushed back, as much as 20 feet, and that the automobile went forward 15 or 20 feet, after the collision and before the pictures were taken. Also, there was some testimony of disinterested witnesses that when they arrived at the scene of the accident, the left wheels of the automobile were not across the center of the road. Two deputy sheriffs, who investigated the accident, placed the left rear wheel of the car upon or slightly to the west of the center of the road.
The photographs do not overcome the testimony of the witnesses as to the position of the vehicles at the time of the collision, and we think the evidence supports the verdict.