Knoch, Senior Circuit Judge and Kiley and Cummings, Circuit Judges. Cummings, Circuit Judge (with whom Kiley, Circuit Judge, joins) concurring.
KNOCH, Senior Circuit Judge.
Plaintiff-appellant Carol Cavendish, Administratrix of the Estate of Carlos Cavendish, has taken this appeal from judgment for the defendant-appellee, Sunoco Service of Greenfield, Inc., consequent on the verdict for defendant in a jury trial of plaintiff's action for the benefit of the widow and child of Carlos Cavendish, brought pursuant to the Indiana wrongful death statute, Burns § 2-404, IC 1971, 34-1-1-2.
On Sunday, March 3, 1968, the decedent, Carlos Cavendish, his wife and child were driving from Summerville, West Virginia, to Indianapolis, Indiana, on Interstate Highway 70. It was about 11:00 P.M. when the decedent left Interstate Highway 70 at Indiana State Highway 9. Although the decedent turned south when he left Interstate 70, he soon learned that he was driving south in the northbound lane. In attempting to change to the proper lane he found himself straddling the concrete median divider separating the north and southbound lanes of the State Road 9 overpass crossing Interstate 70, from which he was unable to dislodge his car. It was then about 11:15 P.M.
Leaving his parking lights on, he, his wife and child secured a ride into Greenfield, Indiana, where he hired Sunoco Service, whose employee, James Rockey (originally a defendant herein, but dismissed without prejudice on motion of plaintiff before final argument) who drove decedent, his wife and child, back to the site in a wrecker truck. Mr. Rockey pulled up behind the decedent's car, turned on rotating beacon and flashing lights and walked over to the car. He then turned the wrecker and backed it up to the car. The wrecker was equipped with a rotating beacon on top and amber flasher lights, two of these in the grille, which were in operation all the time the wrecker was at the site. Amber lights on the rear view mirrors were also in operation. There were in addition red flasher lights on the back, two on top of the boom, and two white working spotlights.
The first several efforts to pull the car away failed when the hook-up slipped off. Mr. Rockey again hooked the chain. The decedent, who had left the wrecker to watch the proceedings and to talk to Mr. Rockey, was standing at this point in the west lane of the two northbound lanes. Mr. Rockey saw a "semi" coming north with auto lights behind it. As he started to move the wrecker, he saw the automobile itself. He testified that it looked as though it would hit his wrecker truck. However, that had not been his impression the first time he saw the head lights of the approaching automobile. Plaintiff stresses the fact that Mr. Rockey in the wrecker truck was in a better position to see than the decedent on the ground. He attempted to open his door to warn the decedent as the northbound automobile struck the decedent with its left front fender and killed him. It continued some way across the bridge, stopped and backed up. That automobile was driven by Mrs. Clulla Every, who was also initially a defendant in this case. Plaintiff explains that when it was ascertained that Mrs. Every had only $15,000 liability insurance, plaintiff, being destitute at the time, gave Mrs. Every a covenant not to sue in return for $12,500, and the action was dismissed as to Mrs. Every who was omitted as a defendant from the second amended complaint. Mrs. Every was a witness at the trial. She testified that she was blinded by the wrecker's headlights and in the absence of any fusees, or any other red light on the traffic side of the decedent's car, she had no warning that there might be persons out of vehicles on the pavement. Although witnesses testified to seeing the various lights on the wrecker truck from distances of one-quarter to three-quarters of a mile away, plaintiff asserts that Mrs. Every's view was blocked by the semitrailer in front of her.
It is plaintiff's theory that the death of the decedent was the result of defendant's negligence in causing the wrecker's headlights to blind oncoming traffic while at the same time failing to place red fusees, red flares, red electric lanterns or other red electric warning devices on the highway to alert other drivers, and that the rate of speed of Mrs. Every's vehicle was irrelevant.
Defendant argued, and the Trial Judge agreed, that the Indiana Statute, Burns § 47-2236, IC 1971, 9-8-6-42, pertaining to the positioning of flares beside disabled motor trucks, passenger buses, truck-tractors, trailers, semi-trailers or pole trailers, was inapplicable here in the absence of any evidence that the wrecker trucker was disabled while it was engaged in dislodging the decedent's automobile from the divider. Plaintiff's view is that while the wrecker truck was attached to the decedent's car it was unable to move in any direction until it succeeded in dislodging the decedent's car. Thus plaintiff argues that the wrecker was "disabled".
The defense theory was that the accident was caused solely by Mrs. Every's negligence and the contributory negligence of the decedent himself who placed himself in the way of oncoming traffic at night, failing to maintain a proper lookout and failing to light the headlights of his own vehicle or to set out fusees or other lights which would have made him visible to other drivers.
There had been an allegation in the answer of defendant imputing negligence to plaintiff in failing to maintain a lookout and to warn her husband, but this was withdrawn on the day that the trial began.
Plaintiff's primary complaint is that her case was defeated even before trial by the nature of a preliminary indoctrination given the entire panel, from which the jurors in this case were selected, when they embarked on their duties more than two months in advance of this trial. Plaintiff informs us that she did not learn of the nature of this indoctrination or its departure from what plaintiff describes as the "approved" handbook (26 F.R.D. 549-558) with which plaintiff's counsel were familiar, until after the trial.
Plaintiff quotes segments from the indoctrination lecture to illustrate plaintiff's view that the Trial Judge's comments tended to degrade trial lawyers in general and plaintiff's lawyers in particular. Reading the entire lecture straight through, as the jurors heard it, we are not left with that impression.
The District Judge resorted to colloquial and homely terms in telling the prospective jurors about the proceedings in which they would play a vital role. For example he said that he held pre-trial conferences to find the heart of a controversy and "just shake the cracker barrel down." He stressed the importance of the jury's function. He offered practical advice on such mundane matters as parking one's automobile only in lots from which it could be retrieved at a late hour if the jury was obliged to remain at the court-house far into the night.
In concluding that the particular targets of the Judge's remarks were plaintiffs' lawyers, counsel refer to a statement that lawyers "want to win all twelve jurors" and reason that this must, of necessity, mean plaintiffs' lawyers only because so long as defense counsel persuade one juror not to vote with the other eleven, a defendant cannot be said to lose. However, as defense counsel here noted in oral ...