Before HASTINGS, Chief Judge, and DUFFY and MAJOR, Circuit Judges.
Plaintiffs, Shellie Dagley, administrator of the estate of Charles W. Collins, deceased, and Ziffrin Truck Lines, Inc. (Ziffrin), brought these diversity actions against defendants, The Armstrong Rubber Company and Armstrong Rubber Manufacturing Company, to recover damages for wrongful death and property damage allegedly caused by the negligent manufacture and design of a truck tire by defendants and by defendants' breach of implied warranty that the tire would be reasonably fit for use on the highways.
The district court dismissed plaintiffs' Count I based on breach of implied warranty and submitted the negligence issue in Count II of the complaints to the jury. The jury rendered verdicts for defendants under Count II and judgments were entered thereon. Plaintiffs appealed.
The Armstrong Rubber Company designed and Armstrong Rubber Manufacturing Company manufactured the tire in question for use on the highways by trucks. The tire was sold to a distributor in Indianapolis.
On October 1, 1959, Ziffrin purchased the tire from the distributor and installed it on the right front wheel of a 1959 Mack tractor.
On September 2, 1960, Collins, an employee of Ziffrin, was driving the Mack tractor with an attached trailer containing cargo in a northerly direction on U.S. Highway 41, a few miles north of Morocco, Indiana. The truck went off the highway and turned over, killing Collins.
Dagley brought an action under the Indiana Wrongful Death Act, Ind.Ann.Stat. § 2-404 (Burns' Supp.1964), and Ziffrin filed an action for damages to the tractor, trailer and cargo. The two cases were consolidated for trial.
The issues presented on appeal are whether the district court committed reversible error in refusing to admit into evidence a written statement made at the scene of the accident by an eyewitness to the accident and whether it erred in dismissing plaintiffs' counts alleging breach of implied warranty.
One of the principal questions in the trial was whether the right front tire on the tractor driven by Collins blew out before the accident and thus caused the accident or whether the blow out occurred after and was a result of the accident.
There were two eyewitnesses to the accident. Plaintiffs called John Crocker, a truck driver, as their witness. Crocker had been an employee of Ziffrin in the years 1938, 1939 and 1940. He testified he was driving south on U.S. 41 on the date of the accident. He stated:
"* * * There was a low grade, and I approached over the top of the grade and I saw a Ziffrin truck coming, meeting me, and when he got about 70 to 75 feet, the right front wheel, the tire blew, and the truck immediately dropped. I heard the tire blow and I saw the fender drop down by the edge of the shoulder and heard the concussion of the tire. * * *
"* * * The State Trooper got there, I told him there was no pulse on the boy, I stayed there and made a statement to the State Police * *.
"* * * In 1938, '39 and '40, I worked for Ziffrin Truck Lines and I knew several of the boys and several of them still worked there. When I saw a Ziffrin truck, I just looked to see whether it was anybody I knew, and I was watching the truck very closely when I saw him coming, to see if it was someone I knew * *."
On cross-examination defendants, over the objection of plaintiffs, asked Crocker whether he saw the truck hit a hole in the highway about one-quarter of a mile south of the accident. He answered that he did not. Defendants then asked whether he recalled being questioned about the accident on November 9, 1962 at his residence in Orlando, Florida, at which time the questions and answers were recorded in writing by Margery E. Hill, a court reporter. He replied that he did remember. Defendants asked Crocker whether he replied, in response to a question, that he saw the truck hit a hole. He denied giving such an answer.
Defendants, as part of the presentation of their case, called Hill as a witness. She testified Crocker made the statement denied by him concerning the truck hitting a hole one-quarter of a mile south of the scene of the accident.
Immediately following her testimony the court instructed the jury as follows:
"Now, ladies and gentlemen of the jury, before we call the next witness, with respect to the entire testimony of this witness, Miss Margery Hill, none of the evidence elicited from this witness is to be considered by you as evidence in this case, as proof or disproof of any of the issues of the plaintiffs' complaint or the defendants' answer. This witness has been offered for one purpose and one purpose only by the defendant: to impeach the witness Mr. Crocker. That's for you to determine, whether or not that was done in whole or in part, no one else. * * *
"* * * The statements that he made prior to trial are not considered as evidence in the case, but you can readily see, if a witness comes before a jury and testified under oath concerning certain facts, and if that same party made statements long before, out of Court, not in your presence, which would be in conflict with what he testified to in trial, it would be something for the jury to consider as to whether or not he has testified to in trial is the truth or in error. That's for the jury to determine."
The other eyewitness to the accident, Harry Krieger, was called by defendants. He testified he was following the truck at a distance of approximately 100 yards at the time of the accident. He stated:
"* * * [My wife and I] did not hear any sound such as the sound of a tire blowing out. * * * We did not have a radio in the car, the left front window was lowered. * * * There was nothing to prevent my hearing the sound that might come from the truck. As it traveled to and off the edge of the highway, I could see the right side of the cab. There was no evidence that a tire had blown out on the right side of the tractor. * * *"
Plaintiffs, in rebuttal, called as a witness Kenneth Richcreek, a Detective-Sergeant with the Indiana State Police, who investigated the accident. Richcreek identified plaintiffs' Exhibit 32 as a statement written by Crocker at the scene of the accident at Richcreek's request. Plaintiffs offered this exhibit in evidence, defendants objected and the objection was sustained.
Plaintiffs state that this ...