Hastings, Chief Judge, and Duffy and Major, Circuit Judges.
Plaintiffs, Kenosha Auto Transport Corporation, operator, and U.S.A.C. Transport, Inc., owner and lessor, of a freight carrying convoy, brought this action against defendants, Lowe Seed Company, owner of the truck, and Guy C. Covington, operator, for damages alleged to have been sustained by reason of defendants' negligence in the operation of its truck. Defendants filed a counterclaim against plaintiffs, seeking damages alleged to have been sustained by reason of plaintiffs' negligence.
The case was tried to a jury which rendered a verdict in favor of plaintiffs, with damages in accordance with a stipulation of the parties. From the judgment entered thereon, defendants appeal.
The grounds urged for reversal are that the Court erred (1) in its failure to grant defendants' motion to direct a verdict or, in the alternative, for a new trial, (2) in its refusal to give certain instructions tendered by defendants and (3) in its refusal to admit evidence offered by defendants.
It has often been held in cases such as this that the issues of a defendant's negligence, plaintiff's due care and proximate cause are for the jury to decide. See opinion of this Court in Reitan v. Travelers Indemnity Co., 267 F.2d 66, 68, and cases therein cited. If the only error asserted was the Court's refusal to direct a verdict, the case could be disposed of in short order. However, the Court's refusal to give certain of defendants' instructions and to admit certain evidence offered by them cannot be disposed of so readily.
On April 30, 1961, plaintiffs commenced to take a caravan of vehicles from Rossford Ordnance Base at Rossford, Ohio, loaded among other things with large pieces of radar equipment destined for Baker, Oregon. The caravan was in charge of Myron R. Brown, safety supervisor for U.S.A.C.
Prior to the trip, U.S.A.C. obtained a permit by telegraph notice from the Illinois Division of Highways, Springfield, Illinois, to take the caravan through Illinois with an extra wide load up to 17 feet, following a specific route which included Route 66. The permit provided (1) that the speed of the tractor semi-trailer which was to be used to transport the three pieces of equipment was limited to 25 miles per hour, (2) that the limit of the width of the load was 17 feet, and (3) that the permit was null and void if any provision of Sec. 3-501 of the Policy on Permits, Revised 1961, was violated.
The caravan consisted of six vehicles. There were two cars, one at the head and the other at the rear of the caravan; the other four vehicles were semi-trailer trucks (a tractor which pulls a trailer). Each truck had a driver and a flagman who sat next to the driver. The corners and center of each trailer and the front and side corner of each tractor had clearance lights; each unit had flashing amber lights to the front and flashing red lights to the rear.
The first vehicle in the caravan was a 1954 Cadillac coupe, painted bright red with a white top, driven by Brown. This car had two red lights in front which were constantly blinking and on top carried a large sign which stated in black letters (against a yellow background), "Wide Load Behind."
The next or second vehicle was a semitrailer truck driven by William A. Hobson. (This was the vehicle involved in the occurrence.) The tractor portion of this unit was about 8 feet wide and 9 feet tall. The trailer was 35 feet long, 8 feet wide and 52 inches high. Among other things, this trailer was loaded with a radar base or hub, which was the widest piece of equipment carried in the caravan. "Points" or "wings" extended horizontally from the bottom of the base, which was 16 feet and 10 inches wide at its widest point, including the wings. The base was centered on the trailer so that approximately 42 to 45 inches extended on one side of the trailer and a similar distance on the other. Red flags, 16 inches x 16 inches, were placed on the extreme end of each of the points or wings. In addition, there were flashing marker lights and tail lights on the trailer, and a flashing amber light on that portion of the base which protruded on the left or traffic side of the trailer. All lights were flashing at the time of the occurrence.
The third vehicle in the caravan (the second truck) was a semi-tractor trailer driven by Wilfred H. LeDuc. This trailer was about 8 feet wide and carried a crated roller 14 feet in width, which extended 3 feet from each side of the trailer. There were flags on the outer edges of the bearing and a series of warning lights on the vehicle. The two vehicles which followed were also semi-trailers carrying loads which did not extend out from the trailers. The final vehicle was a station wagon with a large sign on top which stated, "Wide-Slow-Load Ahead."
Plaintiffs' caravan, possessed with the permit as above shown, was examined by the Illinois weight master at the Illinois-Indiana line on Route 30, on May 3, 1961, and he approved the continuation of the caravan into Illinois. When it reached Joliet, Illinois, it headed south on U.S. 66.
Defendants' vehicle (owned by Lowe) was a Ford truck with a grain box, the widest point of which was 7 feet 10 inches. On May 3, 1961, Covington drove the truck from a point near Kankakee, entering Route 66 at Chenoa, Illinois, about 40 miles north of the scene of the occurrence, and headed south. Highway 66 at the point of the occurrence (and for several miles in each direction) is straight and level, with four lanes, two lanes for southbound vehicles separated from two lanes for those northbound by a grassy divider or median strip. Each lane is 12 feet in width, with a 2 foot shoulder between the edge of the lefthand, southbound lane and the grassy portion of the median strip. The weather was ...