Kiley, Pell and Stevens, Circuit Judges.
At about 5:15 A.M. on July 26, 1966, as a tractor-trailer being driven by Shirley Cole was turning off U.S. 30 into the Hi-De-Ho Truck Stop, it was hit from behind by another large unit driven by Thomas Maxwell. Both vehicles were overturned and suffered substantial damage; both drivers were injured and each claimed the other was at fault. In the litigation which ensued, the jury believed Thomas.*fn1
Appellants contend that the jury would have believed Shirley if the court had admitted into evidence (1) the transcript of their investigator's interview with Thomas's father, which included comments by Thomas; and (2) the testimony of an accident reconstruction expert. We have concluded that the trial court properly rejected both offers.
Many of the facts are uncontradicted. Shirley worked as a relief driver for her husband, who owned the tractor she was driving. She had been driving a tractor-trailer for about a year or a year and a half. She was unfamiliar with U.S. 30. On the morning of the accident, with the exception of a short break at about 3:00 A.M., she had been driving steadily for about four and one-half hours when the accident occurred. Her husband had been asleep since shortly after they picked up a refrigerated trailer in Muncie, Indiana. They had been on the road quite steadily, taking alternate turns at driving and resting in the "sleeper," for an undetermined number of days after leaving California and prior to the collision.
Thomas was on his regular run, making the turn between Fort Wayne and Chicago. He had been driving heavy units for six years. He lived in Plymouth, Indiana, only a few miles from the truck stop, and had worked there before he became a driver at age 18. On the morning of the accident his trailer was loaded at Warsaw, Indiana, only 25 or 26 miles away. He was paid by the mile rather than the hour (he testified that he was driving at 55 miles per hour, the speed limit for trucks on U.S. 30).
The witnesses agreed that Shirley had overtaken Thomas shortly before he reached the Hi-De-Ho. The conflict in the testimony related primarily to the place where she passed him and how fast they were going. According to Shirley, about three and one-half to four miles east of the Hi-De-Ho she saw Thomas's unit which was traveling at about 45 miles per hour. She passed Thomas, driving about 55, and had returned to the right-hand lane about three-quarters of a mile before reaching the truck stop. She slowed without immediately braking, and noticed that Thomas was "a good distance" behind her when she first put on her turn signals. The turn signals were on for about three-quarters of a mile. She had slowed to about six miles per hour and was completing her turn when her trailer was struck by Thomas's cab.
Thomas testified that Shirley was only about three-quarters of a mile from the truck stop when she came up from behind; that he was doing 55 and she must have been traveling 10 or 15 miles faster; that they had almost reached the Hi-De-Ho before she returned to the right-hand lane after passing him; that she was only a few feet ahead of him when her brake lights went on; then "* * * I stomped on my pedal, my brake pedal, with both feet and pulled my hand valve, and tried to pull to the left, * * * there was an impact, and that is the last thing I remember."
The case was tried in the Federal District Court for the Northern District of Illinois. Federal jurisdiction was predicated on the diverse citizenship of the parties. See 28 U.S.C. § 1332. Although the accident occurred in Indiana, in both the trial court and in this court the parties have relied on Illinois evidence law. In their reply brief, however, appellants for the first time advanced the argument that Rule 43(a) of the Federal Rules of Civil Procedure is a "rule of admissibility, not exclusion," and that even if the proffered evidence was properly excluded under Illinois law, it was admissible as a matter of federal law.*fn2 We are satisfied that Rule 43(a) is applicable here.*fn3 Under that rule, we ordinarily look first to the law of the forum state, in this case Illinois, and then to federal law.
With regard to the admissibility of the transcript of the investigator's interview, the exercise of the trial court's discretion is supported both by the Illinois authority cited by appellees and by our conception of proper practice in federal courts. Admissibility of the proffered expert testimony is within the sound discretion of the trial judge under both the Illinois and the federal cases. We are unwilling to assume that he would have exercised his discretion differently if the federal authorities cited to us by appellants' new counsel had been urged below.
On July 2, 1968, an investigator employed by appellants interviewed Archie Maxwell (Thomas's father) in the presence of Thomas. Both Maxwells were employed by appellee, and the litigation had already been commenced.*fn4 Indeed, appellants had already deposed Thomas. They gave no notice of the interview to opposing counsel, and no lawyer was present. The transcript of the interview makes it perfectly clear that the Maxwells were under the impression that the investigator was a representative of their employer.*fn5
During the course of the interview, Archie Maxwell expressed the opinion that the connection between Thomas's tractor and trailer was defective, and that without the defect Thomas could have avoided the accident.*fn6 Thomas remained silent during several comments by Archie expressing this opinion. In addition, after Archie had stated that the tractor manufacturer was responsible ...