APPEAL from the Circuit Court of Cook County; the Hon. SYDNEY
A. JONES, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
A passenger van traveling on the Indiana toll road ran into the rear of a semitrailer truck. Three of the passengers in the van, Jean Vinke, her daughter Elizabeth Vinke, and her niece, Lyn Jozsa, were killed. Another of Jean Vinke's daughters, Mary Lou Vinke, suffered personal injuries. The representatives of the decedents' estates and Mary Lou Vinke are the plaintiffs here. Jean Vinke's son, David Vinke, who was driving the van, was never a plaintiff in the action. The driver of the truck, Donald Marshall, was named a defendant but was dismissed at the conclusion of the plaintiffs' case and is not a party to this appeal. Artim Transportation System (Artim) was the sole remaining defendant when the case was submitted to the jury.
The jury returned a verdict in favor of Artim and two special interrogatories finding that the driver of the plaintiffs' van was negligent and that his negligence was the sole proximate cause of the accident. On appeal, the plaintiffs argue (1) the jury's finding that the negligence of the driver of the van was the sole proximate cause of the accident was contrary to the manifest weight of the evidence and (2) the court should have allowed their motion for a mistrial in light of its acknowledged personal hostility and prejudice against plaintiffs' counsel. They also allege a number of trial errors which will be detailed subsequently.
The accident occurred on October 8, 1973, about 6:45 or 7 p.m. on the Indiana toll road at the Riverside Drive overpass in the city of Gary, Indiana. The occupants of the van were on their way from Harper, Michigan, to Chicago. Jean Vinke was in the front passenger seat. Elizabeth and Mary Lou Vinke and Lyn Jozsa were asleep in the back of the van.
Marshall, an employee of Artim, was driving his truck tractor with a 30-foot flatbed trailer attached, westbound on the Indiana toll road. He was moving at a speed of five miles per hour in an attempt to pull off the highway onto the shoulder. The truck had run out of gas. Marshall's vehicle was struck in the rear by the Vinke van.
The allegations of negligence on which the jury was instructed were that the defendant (1) operated the truck at a speed below the posted limit, (2) obstructed the roadway, and (3) failed to adequately refuel the truck, which it knew or should have known was likely to run out of fuel.
Marshall testified he entered his vehicle at 5:30 a.m. the day of the accident. He had purchased the truck two weeks earlier. The vehicle had two saddle-type fuel tanks located on each side behind the cab. Each tank had a 63-gallon capacity. On the morning in question Marshall believed he had about 65 gallons of fuel. He determined this by examining the fuel gauge which indicated that the tanks were a little over half full. A leveling device was located between the tanks, and one-half gallon of fuel would remain in each tank if the truck ran out of fuel. Marshall also checked the fuel by looking inside the driver's side tank on the morning of the accident. He did not check the level with a stick.
Marshall said he drove the tractor from his home in Romeoville to the Inland Steel plant, a distance of approximately 54 miles. There he hooked his tractor to a steel trailer which had a coil rack in the center. From Inland, Marshall drove to Ryerson Steel in Elk Grove Village, a distance of approximately 30 miles. At Ryerson the engine idled for 30 minutes while Marshall waited to unload. He shut off the engine while he waited for another 30 minutes. Marshall then drove one-half block to pick up another load of steel coils at Prefinished Metals in Elk Grove. From there he drove about 45 miles to Enamel Products in Portage, Indiana. He arrived in Portage about 2:30 p.m. He shut the engine off for approximately 30 minutes. The trailer was unloaded by 6:15 p.m. At 6:30 p.m. after the engine had been off for another 30 minutes, Marshall checked the driver's side fuel tank and observed over one-quarter of a tank of fuel. The fuel gauge also showed about one-quarter tank. He did not check the tanks with a stick. Marshall said he had previously operated the truck with less than one-eighth of a tank. The witness admitted that in an earlier deposition he said he had only one-eighth of a tank when he was at Portage.
From Portage, Marshall drove a distance of 12 miles to the toll road. He did not pass any stations selling diesel fuel on the way. An alternate route which he sometimes used did have stations along the way. He traveled three miles from the point he entered the toll road to the scene of the accident.
The accident occurred near an overpass or bridge in the westbound lanes. The posted minimum speed limit was 45 miles per hour. Marshall entered the bridge area at a speed of 50 to 60 miles per hour. He accelerated to a top speed of 65 miles per hour. He was traveling at 50 miles per hour in the right lane when he reached the crest of the bridge, which was one mile long with a four-foot wide shoulder. As he reached the crest of the bridge his engine began to cut out and he began to lose power. When he tried to accelerate the truck responded sluggishly. He turned on the emergency flashers which activated flashing lights on both the tractor and the trailer. He also checked the fuel gauge which registered a little under a quarter tank.
As Marshall approached the bottom of the overpass he put on his brakes to prepare for turning off onto the shoulder. He reduced his speed from 45 miles per hour to about 15 miles per hour when he was 250 or 300 feet from the end of the overpass and he braked again at the very end of the overpass and slowed to five miles per hour. Approximately six vehicles passed him by moving from behind his truck into the other westbound lane.
Marshall testified the gas gauge was working properly before the accident. He purchased the truck used two weeks before the accident, and it had 250,000 miles on it. On the date of the accident he had been an employee of Artim for one week. Artim inspected the vehicle before hiring him. The day after the accident Marshall put five gallons of fuel into the truck. The truck then ran properly. Marshall put in another 25 gallons and the gas gauge continued to read under one-quarter. He thought something was malfunctioning and so he removed the sending unit from the tank and installed a new one. Marshall said his truck consumed fuel at four to six miles per gallon. He estimated his fuel consumption at four to five miles per gallon on the day of the accident based on the load he was hauling.
David Vinke testified that he was a student. He was almost 17 years old at the time of the accident. At the time of the impact he had been driving in the right hand westbound lane of the toll road for about 15 minutes. He was traveling at 70 miles per hour. Vinke testified that he was "glancing down at my speedometer and I heard a scream from my mother sitting to the right of me. I looked up and I observed this semitrailer truck and braked and swerved at that time and the collision took place." Vinke also said he was familiar with the road and with the van he was driving. He said it was "dusk" at the time of the accident and it was clear and dry. Visibility was excellent; he could see one mile down the road.
Vinke also testified that the bridge was one mile long. It had a four foot wide shoulder and there was no room to pull off a disabled vehicle. At the end of the bridge the shoulder became wide enough for a truck. Traffic was light that day and there was nothing happening in the van to distract him. His mother was reading with light from the dome light and from outside. He believed his headlights were on. Vinke said he could see across the entire length of the overpass from the east end of the bridge. He said it was not difficult to see or to visualize the speedometer in the van. From the time he reached the midpoint of the bridge until his mother screamed he never saw the truck ahead of him. When his mother screamed he looked up and saw the lights on the trailer. He was about 30 feet from the rear of the trailer at that time and was still traveling at 65 to 70 miles per hour. His foot was still on the accelerator.
Carl Prince, a civil investigator, testified for the plaintiffs. He said he clocked the distance traveled by Marshall using the odometer in his own car. The distance from Inland Steel to Ryerson is 59.8 miles; from Ryerson to Portage, Indiana, is 69.8 miles; and from Portage to the scene of the accident is 12 miles. According to Prince, Marshall drove 196 miles that day.
Bruce Moore, a truck salesman since 1950, testified for the plaintiffs. He stated that a 1968 GMC cab-over, like Marshall's, has a fuel consumption of about six gallons per hour at idle. Moore examined the gas gauge, called a gas receiving unit, in a truck of the same model as Marshall's. He described how it operates.
James Wood, a Gary, Indiana, policeman, testified for the defense. He observed the accident in question while he was traveling eastbound in his squad car on the service road which parallels the toll road. He noticed the van and the truck about five seconds before the impact. The truck had its lights flashing. It was moving at about 15 miles per hour and the van was about 150 to 200 feet behind it moving at 65 or 70 miles per hour. There were no other westbound vehicles. Wood did not notice the van swerve. He saw no skid marks after the collision. About 15 minutes after the accident Wood heard David Vinke say "I looked down at the speed, when I looked back up it was too late to stop."
John Sheehan, a consulting engineer with degrees in metallurgical engineering, testified for the defense. He is not licensed or registered as a metallurgical engineer. He examined the sending mechanism which had been removed from Marshall's truck. He said the pin which in the original design held the float to its support was missing and that the mechanism had been repaired by holding the two parts together with solder instead of another pin. Solder is inherently weak. A vibration will cause it to lose contact with the base metal and it tends to peel away or crack away from the original joint. If broken, the gauge would read anywhere between empty and what it read at the time of the break.
The jury returned a verdict in favor of Artim and against all the plaintiffs. They also answered the following special interrogatories in the affirmative:
"Do you find that, at and just before the occurrence in question, David Vinke was negligent?"
If the answer to the above is in the affirmative, do you further find that such negligence on the part of David Vinke was the sole and proximate cause of the occurrence ...