In Lee v. De Carr (36 A.D.2d 554), this court upheld the admission of a diagram, and the testimony of an investigating police officer which located the point of impact, although he had not witnessed the accident, on the basis that it was not based upon statements made by the parties, but rather upon his own factual observations of the vehicles, which had not been moved, and of the skid marks at the scene.Summary of this case from Horton v. Smith
January 14, 1971
Appeal from judgments of the Supreme Court, Franklin County, entered upon a jury verdict in favor of the respondents. On September 30, 1966 the litigants were involved in an automoble accident with conflicting versions as to who was responsible. The only witnesses present at the time of the actual collision were the parties and certain relatives riding with them in the cars. At the trial a diagram of the accident made by Trooper Robert Benjamin of the State Police who investigated the accident was received into evidence. Appellants assert that this diagram was not properly admitted into evidence under CPLR 4518 because it was conclusory, was not based on personal observation and was instead based on hearsay information supplied by one of the parties ( Toll v. State of New York, 32 A.D.2d 47). Concededly Trooper Benjamin did not witness the collision but at the time he arrived the cars had not been moved and an examination of his testimony clearly indicates that the diagram was based not on statements made by the parties involved but rather primarily on his own factual observation at the accident scene. Nor is the diagram conclusory as appellants contend. The position of the vehicles, which had not been moved, was clearly a factual observation, and the arrows indicating the paths traversed by the vehicles reflects the officer's observation of the pattern of skid marks present at the scene. Accordingly, the diagram was properly admitted into evidence. Appellants also urge that the Trial Judge erred in refusing to admit into evidence a photograph of their vehicle taken at a garage sometime after the accident. However, appellants did not lay a proper foundation to authenticate the complete photograph and refused to accept the picture into evidence with a controversial piece of chrome blocked out. Accordingly, we find no error upon which to predicate a reversal. Judgments affirmed, with costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.