APPEAL from the Circuit Court of St. Clair County; the Hon.
WILLIAM P. FLEMING, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Plaintiff filed a two-count complaint against defendants, Donald Ray Horton and Missouri Pacific Truck Lines, Inc., alleging that defendant Horton, while in the scope of his employment with Missouri Pacific Truck Lines, Inc., negligently operated a tractor-trailer, proximately causing serious and severe injuries to plaintiff. The court entered judgment on a jury verdict in favor of both defendants and against plaintiff. Plaintiff appeals from the judgment and from the denial of a post-trial motion requesting a judgment n.o.v., or in the alternative, a new trial.
Plaintiff was driving his black Ford pickup truck north on Illinois Route 3 in Dupo, Illinois, on the afternoon of June 12, 1975. Defendant Horton, an employee of defendant Missouri Pacific Truck Lines, Inc. (hereinafter referred to as Missouri Pacific), was driving a Missouri Pacific tractor pulling a 40-foot trailer south on Route 3. The combined length of the tractor and trailer was 55 feet. Defendant Horton was executing a right-hand turn onto the East Carondelet Crossing when a collision occurred between the left rear of the trailer he was pulling and the pickup being driven by plaintiff. Each party claims that the vehicle he was driving was within his lane of traffic and that the other party crossed the center line and entered his lane of traffic. Route 3 at this location was a two-lane highway divided by a solid yellow line. Each lane of traffic was between 10 and 11 feet wide, and the southbound lane near the East Carondelet Crossing had a shoulder of approximately 10 feet.
Plaintiff testified that as he was driving north, the tractor swayed over into his lane and that he swayed to the right to avoid hitting it. There was no contact with the tractor; however, plaintiff stated that after he swayed over to the right, he got back into his lane and suddenly the accident happened. He testified that the rear end of the trailer struck him. Plaintiff denied ever crossing the center line. He related that after the accident, he drove into a nearby Mobil station to avoid blocking traffic, then lost consciousness. A portion of plaintiff's left arm was severed, and the injury eventually required the amputation of plaintiff's left arm above his elbow. The left side of his pickup was scraped and there was a dent along the left side. Also, the wing and side mirror were broken off.
Defendant Horton testified that he had started to make his right-hand turn when he noticed the plaintiff "come out of the traffic just, kind of wander over the center line and then headed straight for the rear tandems on the tractor." He further related "* * * then I noticed the driver had his hands on top of the steering wheel, and his head between his hands and I started to reach for the horn and he through [sic] his head back and turned and went parallel with the tractor." He could not see the impact because of the bulkhead. The only indication of the impact was the sound he heard. He stopped momentarily, then completed his turn and parked his vehicle in a vacant lot.
In addition to the parties, three eyewitnesses testified. One was the brother-in-law of the plaintiff, Charles Lawson. He testified that he was following about 150 feet to 300 feet behind the defendant in the second car behind the tractor-trailer. He did not actually see the collision, but noticed the noise and looked up, and the tractor-trailer was a foot or two over the center line. He did not notice the other vehicle involved, although it went past him. He did not learn until later that his brother-in-law was involved in the accident.
Another eyewitness was 16-year-old Mark Lambert, who was sitting at the northeast corner of the intersection. He was watching traffic; and after he heard a noise from the collision, he looked and saw a black pickup truck "coming back across the line." According to Lambert, the pickup was "half and half" over the center line. He did not see the actual collision nor did he see the tractor-trailer in the northbound lane.
The last eyewitness was Nathan Price, who works as a contractor for different railroads, including the defendant, Missouri Pacific. He was driving a pickup truck and was the second vehicle eastbound on East Carondelet Road, about 30 feet from Route 3. He saw Horton's truck start to turn, with the right-hand tires off of the shoulder. He noticed plaintiff's pickup truck about 100 feet south of the intersection cross the center line by approximately two or three feet. He related that the plaintiff gradually crossed the center line and that he continued watching because he did not think the vehicle would stop. According to Price, the pickup made a single veer across the center line in a straight line and never went back to the right. It was blocked from his view behind Horton's tractor-trailer, but he could see it running along the other side of the trailer. The only contact was with the rear portion of the trailer. Price related that it looked as if the plaintiff "went to sleep or something and just veered off the road." He saw plaintiff's elbow in the road after the accident, but someone else picked it up.
Prior to trial, defendants filed a motion in limine to exclude evidence of vehicles operating at this intersection on dates other than the date of plaintiff's injury and evidence of prior collisions other than the one between plaintiff and Horton. The motion was granted over plaintiff's objection. Plaintiff now assigns this as error. He contends that evidence of the common practice use by similar tractor-trailer combinations at this intersection under similar conditions was relevant. He argues that such evidence would show either a common occurrence giving rise to the inference that it was necessary for a tractor-trailer to swing over the center line while executing a right-hand turn at this intersection or that it would rebut defendant Horton's testimony as to the manner in which he executed the turn at the time of the accident. Plaintiff contends that the granting of the motion in limine deprived the jury of the right to receive and consider relevant testimony and evidence material to the case. Plaintiff further contends that this evidence would be admissible to show "custom and trade usage" or to show a "common ground or common occurrence."
Defendants contend that plaintiff has waived any error that may have resulted from the exclusion of this evidence by failing to make an offer of proof. Plaintiff urges that his attempt to make an offer of proof is established in the record.
At the end of plaintiff's direct examination of Roy Larson, the following exchange between court and counsel occurred:
"MR. WELLS: Your Honor, may we approach the bench? (At this time the attorneys approached the bench and a conference was held, on the record, out of the hearing of the jury.)
MR. WELLS: Your Honor, at this point I would like to offer evidence as to concerning other turns made at this intersection by other vehicles. Now, the motion in limine has been granted, precluding me from doing so and I want to make it clear for the record ...