Hastings, Chief Judge, Major, Senior Circuit Judge and Schnackenberg, Circuit Judge.
SCHNACKENBERG, Circuit Judge.
In case No. 16295, Complete Auto Transit, Inc., a Michigan corporation, and Bernard A. Vosholler, defendants, have appealed to this court from a final judgment for $70,000 entered by the district court on February 16, 1967, following a trial by jury, in favor of Lorraine V. Ramsey, personal representative of the estate of William T. Ramsey, deceased, plaintiff-appellee, and against said appellants, as defendants therein.
In case No. 16296, the same appellants have appealed from a judgment of the district court in the amount of $10,774.13, entered February 16, 1967, following the same trial, in favor of A & H Truck Line, Inc., an Indiana corporation, plaintiff, and against said appellants as defendants.
In this court the appeals were consolidated for all purposes.
In No. 16295, the action by plaintiff was to recover damages for the death of William T. Ramsey caused by a collision between two trailer units, while the action by plaintiff A & H Truck Line, Inc., in No. 16296, was for damages to its tractor which was being driven by the decedent.
On April 29, 1966 at 10:20 A.M., defendant Vosholler was driving an autotrailer unit for Complete Auto Transit, Inc.*fn1 in a westerly direction on state highway 56 about 2 1/2 miles east of Haysville, Indiana, and decedent was driving a tractor-trailer unit of plaintiff A & H Truck Line, Inc.*fn2 in an easterly direction on said highway. It had been raining and the asphalt surface of the roadway was wet and slick. Vosholler had never before driven on this road. The description of the circumstances of the collision which occurred, as interpreted by counsel for the respective parties, we now set forth.
This is the version of plaintiff's counsel:
"As the Ramsey vehicle went into the left-hand curve, his trailer at all times remained on its own side of the center line.
"As the defendant's vehicle came into the same curve going in the opposite direction the cab of the Vosholler vehicle was on its own side of the center line when it passed the cab of the Ramsey vehicle which was then on its own side of the center line of the highway. Immediately after the cabs of the two vehicles passed each other on the curve the rear portion of the autotrailer came into contact with the cab of the Ramsey vehicle tearing away the left front of the cab and throwing Ramsey out of the cab, killing him. * *
"On the Ramsey side of the pavement of the highway at or near the point of impact there was a gouge mark in the pavement -- U-shaped or horse-shoe-shaped -- 3 feet 9 inches to the right of the center line on Ramsey's side. This gouge mark pointed to a point off to the right side of the roadway where the Ramsey vehicle came to rest in an embankment. There was also another gouge mark at the right edge of the pavement on Ramsey's side directly in a line between the U-shaped mark and the point where the Ramsey vehicle came to rest. The gouge marks are shown in the state police photos made before the vehicles were moved."
The following statement indicates how the version of defendants' counsel amplifies the foregoing version:
"Upon meeting on a curve, the tractors of the units passed safely, but thereafter the left front of the A & H tractor and the left rear side of the C.A.T. trailer collided.
The curve on which the accident occurred has a radius of 383 feet; and has 'super elevation', or is banked, so that a vehicle traveling in the inner lane of the curve, the west bound lane, is on the low side of the bank, the north edge of the ...