Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.
This action was commenced by the filing of a complaint by the appellant, Frank J. La Presti, naming the Goodall Oil Company as a defendant. It was brought to recover damages occasioned by the alleged negligence of a deceased employee of the Goodall Oil Company in driving a tractor-trailer, gasoline carrying, truck unit.
The Goodall Oil Company filed a counter-claim in that suit, against La Presti, seeking to recover for the damages caused to the tanker tractor-trailer and for the loss of the gasoline cargo.
Subsequently, Carol Vigdal (on remarriage, Carol Vigdal Terpstra) special Administratrix of the Estate of Charles B. Vigdal, the deceased driver of the Goodall Oil tanker, filed a separate action, seeking to recover damages for wrongful death based upon the alleged negligence of the defendant, Frank J. La Presti.
The action for the wrongful death was consolidated with the original action brought by plaintiff, La Presti, and the two cases were tried as one, so that the trial below included the action of La Presti for his own personal injuries and the destruction of his truck, the counter-claim of the Goodall Oil Company and the wrongful death action.
The jury found a verdict adverse to La Presti on his claims, in favor of Goodall on its counter-claim and in favor of Carol Vigdal Terpstra, the Administratrix, on the death claim.
The main contested issues on appeal are:
1. Whether the plaintiff, La Presti, was entitled as a matter of law, to a directed verdict in each of the litigated claims, and
2. Whether the trial court erred in its refusal to give certain instructions as tendered on his behalf.
These lawsuits arose out of a highway accident which occurred at about 2:00 P.M. on August 31, 1956, at the intersection of Barrington Road and U.S. Route 20, also known as Lake Street, in Cook County, Illinois.
The plaintiff, Frank J. La Presti, the owner and driver of a dump truck loaded with torpedo sand, who had been proceeding in a southerly direction on Barrington Road, collided with a tractor and trailer loaded with gasoline belonging to the defendant, Goodall Oil Company, and operated by Charles B. Vigdal in a northwesterly direction on U.S. Route 20. The gasoline in the oil truck ignited and the two trucks were virtually destroyed. Vigdal perished in the conflagration, but the plaintiff, La Presti, managed to escape after being severely burned.
La Presti testified that he was familiar with the intersection. He knew what to expect when he came up to it. He knew the presence of the viaduct, of the slight curve in Lake Street, and of the dip in the street under the viaduct. He was fully aware of the stop sign on Barrington Road and that Lake Street was a four-lane preferential highway.
La Presti testified he was proceeding in a southerly direction on Barrington Road. He testified that when he arrived at a stop sign he came to a stop. He then coasted down to the northerly edge of the pavement on Lake Street and stopped again. He insisted that he "stopped dead" at both places, ...