DISSENTING OPINION
By HORNBECK, J.Tlie versions of the collision and the events leading up to it,. given by Clark, the driver of the car in which plaintiff was riding and Tytus, the defendant, are in marked conflict. Nor, in my judgment can any reasonable interpretation be put upon Clark’s testimony as a whole, which places his car at the time of the collision on his right side of the road. Clark never placed the Tytus car on the left side of the road at or near the time of the collision. His only doubt was whether all of it was on the wrong, side and he said that in his judgment, based upon close observation it was. If there were no evidence in this record save the statements of the witnesses, the finding and judgment could have been for either party.
I hold no brief whatever for the 'witness Clark and readily concede that without other circumstances his reputation and standing, as compared with that of Mr. Tytus as it appears in this record, would clearly mark the testimony of Mr. Tytus the more credible. The majority stresses *530the credibility of the Tytus testimony but refuses to accept it in three particulars. This must be said for Clark’s testimony. His statements at the trial were not there made for the first time, but had been recited on other occasions and reduced to writing and every opportunity was available to the defense to mark any discrepancy or untruth that might appear by means of comparison. It therefore seems reasonable to conclude that Clark at all times had given the same version of the facts surrounding the collision. Then, too, we must assume that the trial judge had a full appreciation of his obligation to test the quality of the testimony and the credibility of the witnesses and no doubt Clark’s testimony was subjected to all the scrutiny to which this court has subjected it and that it was only accepted when other testimony and the physical facts rendered it probable.
It is well at the outset to restate the obligation of this court in this case, as frequently announced in the decision of the upper courts. Courts are loath to set aside a verdict upon the weight of the evidence, as it is the policy of the law that the jury (here the trial judge so acting) shall be the ultimate arbiters of questions of fact. As early as Webb v Protection Ins. Co., 6 Oh St 456, our Supreme Court said:
"It is only where a verdict is palpably against the evidence, or the decided weight of it, that courts are warranted in interfering to set it aside, in order to send the cause to another trial. * * * It is not enough that the court is not satisfied that the verdict of the jury was right and the judgment should not be set aside unless manifestly contrary to the weight of the testimony, or cleai-ly wrong.” Cleveland & S. S. Traction Co. v Garnett, 18 O.C.C. (N.S.) 215, affirmed without opinion, 81 Oh St 483.
The cases which have peculiar application to the finding and and judgment in this cause are Reibel v Belt, 119 Oh St 369; Industrial Commission v Pora, 100 Oh St 218; City Ry. Co. v Shively, 17 Oh Ap 172, which are authority for the proposition that where the verdict is based upon one of different conflicting inferences reasonably from the evidence, it should not be set aside.
The trial judge, acting as a jury, was not required, as a jury would have been, to make a finding as between the plaintiff and the defendant immediately after the conclusion of the trial, but had opportunity to and did deliberately give marked and extended consideration to all of the testimony. The conclusion reached was the result of painstaking attention devoted to the record, as is disclosed by the written opinion, of which we have had advantage. I am constrained to say that the collision could have happened as the trial judge found that it did occur.
Determination of this case below depended upon one major question, viz.: where did the collision occur?
If upon the whole record the trial judge could find that the evidence preponderated to the effect that the cars came together on the left side of the center of the road, then he had support for the finding for the plaintiff. This is true because if Tytus was negligent, whether or not Clark sounded his horn or Tytus heard any warning or Clark chose the proper course in driving his car immediately before or at the time of the collision, or whether or not he had ample room to get around the Tytus car though he was on the wrong side of the road are inconsequential, because the negligence of Clark, unless the sole cause of the accident, is of no concern.
Nor is it controlling that Sheriff Baughn or his deputy did not see a certain mark across the center of the road, nor observe any gasoline in the road or note any trail of this gasoline to the edge of the right side of the road, and did not remember tracing tracks from the Tytus car in the ditch to the left of the center of the road. Others saw and testified to these facts and the photos tend to support their testimony. On the other hand, there is direct conflict between the sheriff and the defendant. The sheriff says that after the accident and after Mr. Tytus knew that Smith had been badly injured he (Tytus) said that everything would be taken care of. Tftus denies this statement in toto but the court may have believed the sheriff. If so, he may have been of opinion that the implication of the statement was an admission of fault.
The parties tried this case, counsel presented it and the trial judge decided it upon two well-defined theories: the plaintiff, that the collision occurred on the left side of the road in the direction in which the cars were moving; the defendant, that the accident did not so occur and the further claim that it happened well over on his right side of the road. The drivers of the cars involved were in agreement that there was but one collision.
In this court a third theory is evolved, *531which is new and distinct, namely, that there were two collisions, a conclusion reached not from the statements of any of the witnesses, but from one photo. The majority believes that because of the excitement tile drivers of both cars failed to note that their cars collided twice instead of once. They say there is no evidence to the contrary. I believe that much of the evidence and every reasonable inference to be drawn from the physical facts is to the contrary.
Let us look for a moment to the new theory of two collisions. Both witnesses who profess to know anything about the facts say there was but one collision. The damage to the cars lends no credence to the claim of two collisions. The eye witnesses say that the cars were moving at different speeds, the Clark car faster than the Tytus car. Unless both are mistaken, then it was impossible for the cars to have been twice in impact at places separated by more than 100 feet. If the first mark in the road, beginning at the extreme right, was made by the disabled left rear wheel of the Tytus car, as concluded by the majority, it could not move as fast as the free-moving Clark car from the point of the first collision to the place of the second collision. If there was a collision at the northern terminus of the mark on the photo. Defendant’s Exhibit 2, no weight whatever can be given to the testimony of the witnesses who describe the brake marks probably made by the Clark car. There are many other reasons which completely refute the two-collision claim, a statement of which would unnecessarily prolong this opinion.
It is necessary to discuss the photograph marked Defendant’s Exhibit 2 because the majority relies upon this photograph. The other photos, Plaintiff’s Exhibits A, B and C, lend no aid to the defendant. On Defendant’s Exhibit 2 there are to be found three distinct marks or tracks, reputed to have been made by the left rear wheel of the Tytus car. We number them for facility in reference. No. 1, the long, regular mark, more than 100 feet long, and extending in a gradual curve, from the extreme right or west side of the road up to about the center thereof. Although the witnesses fix the length of this mark at 100 feet or less, if there is any value in the photos it is nearer 200 feet long, because the surveyor fixes the distance between the telephone poles on the west side at about 204 feet and the mark extends more than the distance between two poles and does not show the additional length to the edge of the road.
No. 2, beginning at about the center of the road is the line connected to No. 1, not quite reaching No. 3 and extending apparently almost due east over the center and to the left side of the road. This line in Plaintiff’s Exhibit A appears to be but a continuation of No. 1, and No. 3, a track about 30 feet long, which is the uneven mark in which for a distance the edges are most prominent, and then but the outer edge appears throughout its length, ending well to the left of the center of the road.
Track No. 1 must have been made by a tire, probably inflated. No. 3 could not have been made by a tire. There is marked change in its appearance at the place where only the left edge appears. No. 1 seems to be wider as it approaches the south. No. 2 seems much narrower than No. 1, and the length of the lines is deceptive. All of these effects may be and probably are the result of perspective. Obviously, as line No. 1 approaches the camera it would appear larger and wider, although it may be of uniform size throughout its entire length. As mark No. 2 would bear either to the right or left this photo would fail to carry its.true dimension of width, depending upon the angle at which the turn was made. Neither the width of line No. 2 nor its characteristics appear in the exhibit. Though the trial judge did not mention it .in his opinion the majority would base a reversal of the judgment upon a conjecture as to how and when it was made.
It may be that mark No. 1 extended into No. 2 without material change, except as to course, tending to support Clark’s testimony. Track No. 2 in this exhibit turns at a sharper angle than in Plaintiff’s Exhibit A. Line No. 3 has characteristics which associate it with a wheel, not moving, upon which the tire was completely deflated and only the rim touching the road.
One witness says that mark No. 1 could have been caused by the emergency brake. It seems unusual that the mark of but one tire appears, if caused by a brake. It is, however, significant that both J. B. New-some and Sheriff Baughn say that shortly after the accident there were two jvheel tracks plainly visible from the beginning of the marks of the Tytus car, up to the middle of the road. If this testimony be true it lends support to the theory that this and the other mark may have been caused by a dragging brake.
The conclusion of the majority is that *532mark No. 1 was made by the Tytus car in the first collision after being struck while over on the extreme right side of the road. The Tytus car completely out of control' with a broken steering wheel and an immovable left rear wheel, would not in probability have moved 134 to 175 feet before stopping, but if it could so move the track indicates that it was made by the tire of a car under control. The irregular jagged line No. 3 was probably made by the immovable, damaged, useless left rear wheel and represents the course of the car after impact. It was not incumbent upon the plaintiff to establish what caused mark No. 1, provided the collision occurred on the left side of the road.
The majority opinion does not convincingly account for mark No. 1 and it cannot be satisfactorily explained upon the theory of two collisions, nor upon the theory of a collision at the point of its beginning on the extreme right side of the road. The trial judge was well within his province in concluding that the claim of Mr. Tytus that the collision occurred well over on the right side of the road was not supported from the physical facts, nor from the photos. In saying this I have no purpose to impugn the good faith of Mr. Tytus’ testimony. It is very easy to be mistaken as to facts incident to a nerve-racking experience such as was suffered by the occupants of the cars involved.
Granted that there was but one collision, inasmuch as it is in accord with the testimony of both witnesses to the accident, it could have occurred at the north or-south end of track No. 1, or at about the end .of track No. 2. It is beyond contradiction that tracks Nos. 2 and 3, if made by the left rear wheel of the Tytus car, place it over on the left side of the road. Some of the Tytus ear may have been over on the left side of the road had the collision occurred when its rear left wheel was at the junction of tracks Nos. 1 and 2, at or near the center of the highway.
The conclusion of the majority that the Clark car struck the Tytus car on the right side of the road and pulled it over on the wrong side is reached by their interpretation of track No. 2 on the photo and from no other fact to be found in this record and "disregards the physical facts, all of which indicate an impact against the Tytus car.
It is testified that there was a puddle of gasoline near the end of track No. 2. Prom one photo this may have been somewhat further south, in track No. 3. The pool was, according to some of the testimony, as much as 4!á feet over the center of the road to the left and from this point a gasoline trail could be followed up to the Tytus car to the edge of the road, near where it came to rest in the ditch.
The gasoline tank on the Tytus car had a hole in its left rear corner 3-16 of an inch wide and from 6 to 12 inches long. The majority is in doubt if gasoline would come out of this hole quickly, because its exact location is not fixed, but overlooked the witness George Collins, who described it and said that it would let all the gasoline out rapidly. The trial judge was well within his province in finding not only that the gasoline would come out from the hole, but also that it would and did gush into the road almost immediately upon the collision. It is significant that in the photo, Defendant’s Exhibit 2, there is no connection between the end of line No. 2 and the beginning of line No. 3, and for a distance between them, probably several feet, there is no visible track. This may have been caused by the lifting, temporarily, of the left rear wheel of the Tytus car by the impact of the Clark car. If so, from the photo clearly the east end of track No. 2 was the point of collision and considerable strength is lent to this conclusion by the position of the gasoline as appearing in Plaintiff’s Exhibit A. The gasoline, according to a photo, begins at or near the end of track No. 3. In this situation the gasoline did not appear on the road for almost 30 feet after the impact of the cars.
The witness M. C. Smith testified that two skid-marks found in 10 or 12 places, always on the left, probably made by the Clark car, came up to the place where the gasoline was found in a puddle on the road. This statement lends as much support to the conclusion of the trial court that the collision occurred on the left side of the road as any other evidence found in the record. If true, and the court had the right to believe, it, it incontrovertibly fixes the impact of the cars at the place where the court placed it.
The movement of the cars, from the place where the pool of gasoline was found was probably as found by the trial court. Clark was turning his car very sharply to left. After the impact the Tytus car turned very sharply to its right traveling a short distance and into the ditch and the Clark car to its left and into the ditch. The testimony of Roy Hinshaw is confirmatory of the theory of a collision followed by immediate movement *533from the road, and contra that the Tytus car moved 130 feet or more after collision. He says that he was within a few hundred feet of the place where the cars came together, saw the oncoming, headlights, and that they suddenly dashed to the side of the road.
There is but one bit of evidenie in this record which is at all difficult to reconcile with the conclusion of the trial coúrt and that is mark No. 2 on the photo, Defendant’s Exhibit 2. Every other physical indication and the spoken word may clearly be resolved in favor of the plaintiff’s case. The majority accepts this photo as correctly presenting the marks on the road at the time of the accident and is willing to fix the place of collision by reason of its interpretation and time and again reinforces its position by the statement of M. C. Smith that it sets forth a true representation of the marks as he saw them. Mr. Smith said that all the photos were correct and undoubtedly they are, but the difference in the appearance of line No. 2 in Defendant’s Exhibit 2 and in Plaintiff’s Exhibit A is so apparent that Mr. Smith’s testimony cannot change the fact.
Of course, none of the exhibits are trick photographs. However, the position of the camera, the condition of light and perspective affect a completed picture.
I have attempted to demonstrate that upon the photo alone Defendant’s Exhibit 2, the plaintiff’s case does not fail. It is obvious that minds may differ on its interpretation. A consideration of mark No. 2 on the photo in the light of the other photos and especially upon the other facts in the record does not in my judgment require or compel a different finding. I hesitate to cast aside the judgment of the trial court based upon testimony and supported by three of the photos in evidence and rely upon an inexpert interpretation of one track on one photo.
Since Werner v Rowley, 129 Oh St 15, the effect in this court of a reversal of a judgment on the weight of the evidence where a succeeding trial will develop the same facts .as the first, is to foreclose the successful party in the trial court from again securing a judgment which will stand. This pronouncement of the Supreme Court in the cited case enjoins upon reviewing courts strict observance of the limitations upon their right of reversal.
The judgment of the trial court will be affirmed.