Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.
Plaintiff, Elmer J. Jacobsen, brought this suit individually and as administrator of the estate of Elizabeth Jacobsen, his wife, to recover damages occasioned by the alleged negligence of defendants, Anderson Trucking Service, Inc. and Gerald M. Murphy. The suit arose from a collision between an automobile driven by plaintiff and a truck driven by Murphy as Anderson's agent. Jurisdiction is based on diversity of citizenship. A jury returned a verdict for plaintiff upon which the District Court entered judgment. Defendants appeal from this judgment.
The collision occurred at the intersection of Routes 55 and 83 in DuPage County, Illinois, on January 10, 1960 at approximately noon. The day was overcast and the pavement wet.
Route 83 runs generally in a north south direction. It is a four lance highway divided by a twenty foot wide median strip. Route 55 is a two lane highway which runs generally in an east west direction.
There is a system of automatically controlled traffic signals at the intersection. Traffic proceeding south on Route 83 is controlled by two signals which face only northerly. One signal is on the northwest corner of the intersection and the other is on the end of the median strip south of Route 55. Traffic proceeding west on Route 55 is controlled by signals on the northeast and southwest corners of the intersection. These signals face both easterly and westerly.
Prior to the collision, Murphy was driving his tractor-trailer at 30 to 35 miles per hour in a southerly direction, in the westernmost lane of Route 83. Plaintiff was driving his automobile at 25 to 30 miles per hour in a westerly direction on Route 55. His wife was a passenger.
The impact took place in the area covered by the intersection of the westbound lane of Route 55 and the right south-bound lane of Route 83. Plaintiff's automobile was struck in the right front fender and door by the left front bumper and fender of Murphy's truck. Plaintiff's wife was killed and he was injured.
The major fact question was whether plaintiff or defendant Murphy entered the intersection against the red light. Plaintiff testified that his light was red when he first saw it, some 500 feet from the intersection, but that it turned green when he was approximately 300 feet from the intersection. He further testified to the effect that he watched the light continuously except for one glance at a sign northeast of the intersection; that he noticed his light on the northeast corner was green as he passed into the intersection; and that the next thing he remembers was being in the ditch after the collision.
Murphy testified that he first noticed his light on the northwest corner when he was about 360 feet from the intersection; that the light was then green; and that the light was green when he entered the intersection. Murphy further testified that as he approached the intersection he was looking for a sign indicating where he could get onto the Illinois Tollroad and that he noticed such a sign when he was 300 to 360 feet from the intersection.
Deputy Sheriff Hoppenstedt, who interrogated Murphy at the scene of the collision, testified that Murphy told him that he "happened to look up all of a sudden and the light had turned red for him and he applied his brakes but it was too late," and that he repeated the admission, in effect, on two subsequent occasions. Deputy Sheriff Sarno testified that he also heard Murphy say that the light was red for him. Police Officer Maerz testified as follows:
"I asked him, to begin with, I just asked him to tell me what happened, and he told me that he was southbound on 83 and he was approaching Route 55 and he was rather unfamiliar with the area and he was looking for the toll road. As he approached the intersection he noticed that the light was green and he looked away, looking for the signs to direct him to the tollway, and when he looked back he said the light was red and just at that point he hit the car."
Murphy denied that he told the police that he looked away from the light to find the Tollroad sign. He further denied that he told them he had entered the intersection against a red light. According to Murphy's testimony, the red light he referred to when he talked to the police was the light on the southwest corner which governed westbound traffic on Route 55.
Defendants' first contention is that they must be granted a new trial because one of the police officers testified he had arrested Murphy after the accident. The testimony was not responsive to any question by plaintiff's counsel and it was immediately struck after defendants' objection. Defendants maintain, however, that because of the closeness of the case the testimony was so prejudicial that the error could not be cured by striking the testimony. Further, defendants ...