KENOSHA AUTO TRANSPORT CORPORATION v. LOWE SEED COMPANY

• Decision Date: 01 July 1966
• Docket Number: No. 15450.,15450.
• Parties: KENOSHA AUTO TRANSPORT CORPORATION, a corporation, and U.S.A.C. Transport, Inc., Plaintiffs and Counter-Defendants-Appellees, v. LOWE SEED COMPANY, a corporation, and Guy V. Covington, Defendants and Counter-Plaintiffs-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

362 F.2d 765 (1966)

KENOSHA AUTO TRANSPORT CORPORATION, a corporation, and U.S.A.C. Transport, Inc., Plaintiffs and Counter-Defendants-Appellees, v. LOWE SEED COMPANY, a corporation, and Guy V. Covington, Defendants and Counter-Plaintiffs-Appellants.

No. 15450.

United States Court of Appeals Seventh Circuit.

July 1, 1966.

Thomas C. Stifler, Danville, Ill., Butz, Blanke & Stith, Kankakee, Ill., Stifler & Snyder, Danville, Ill., for appellants.

James P. Chapman, Chicago, Ill., Henry S. Wise, Danville, Ill., Joseph V. Dowd, Chicago, Ill., for appellees.

Before HASTINGS, Chief Judge, and DUFFY and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

Plaintiffs, Kenosha Auto Transport Corporation, operator, and U.S.A.C. Transport, Inc., owner and lessor, of a freight carrying convoy, brought this action against defendants, Lowe Seed Company, owner of the truck, and Guy C. Covington, operator, for damages alleged to have been sustained by reason of defendants' negligence in the operation of its truck. Defendants filed a counterclaim against plaintiffs, seeking damages alleged to have been sustained by reason of plaintiffs' negligence.

The case was tried to a jury which rendered a verdict in favor of plaintiffs, with damages in accordance with a stipulation of the parties. From the judgment entered thereon, defendants appeal.

The grounds urged for reversal are that the Court erred (1) in its failure to grant defendants' motion to direct a verdict or, in the alternative, for a new trial, (2) in its refusal to give certain instructions tendered by defendants and (3) in its refusal to admit evidence offered by defendants.

It has often been held in cases such as this that the issues of a defendant's negligence, plaintiff's due care and proximate cause are for the jury to decide. See opinion of this Court in Reitan v. Travelers Indemnity Co., 267 F.2d 66, 68, and cases therein cited. If the only error asserted was the Court's refusal to direct a verdict, the case could be disposed of in short order. However, the Court's refusal to give certain of defendants' instructions and to admit certain evidence offered by them cannot be disposed of so readily.

On April 30, 1961, plaintiffs commenced to take a caravan of vehicles from Rossford Ordnance Base at Rossford, Ohio, loaded among other things with large pieces of radar equipment destined for Baker, Oregon. The caravan was in charge of Myron R. Brown, safety supervisor for U.S.A.C.

Prior to the trip, U.S.A.C. obtained a permit by telegraph notice from the Illinois Division of Highways, Springfield, Illinois, to take the caravan through Illinois with an extra wide load up to 17', following a specific route which included Route 66. The permit provided (1) that the speed of the tractor semi-trailer which was to be used to transport the three pieces of equipment was limited to 25 miles per hour, (2) that the limit of the width of the load was 17', and (3) that the permit was null and void if any provision of Sec. 3-501 of the Policy on Permits, Revised 1961, was violated.

The caravan consisted of six vehicles. There were two cars, one at the head and the other at the rear of the caravan; the other four vehicles were semi-trailer trucks (a tractor which pulls a trailer). Each truck had a driver and a flagman who sat next to the driver. The corners and center of each trailer and the front and side corner of each tractor had clearance lights; each unit had flashing amber lights to the front and flashing red lights to the rear.

The first vehicle in the caravan was a 1954 Cadillac coupe, painted bright red with a white top, driven by Brown. This car had two red lights in front which were constantly blinking and on top carried a large sign which stated in black letters (against a yellow background), "Wide Load Behind."

The next or second vehicle was a semi-trailer truck driven by William A. Hobson. (This was the vehicle involved in the occurrence.) The tractor portion of this unit was about 8' wide and 9' tall. The trailer was 35' long, 8' wide and 52" high. Among other things, this trailer was loaded with a radar base or hub, which was the widest piece of equipment carried in the caravan. "Points" or "wings" extended horizontally from the bottom of the base, which was 16'10" wide at its widest point, including the wings. The base was centered on the trailer so that approximately 42 to 45" extended on one side of the trailer and a similar distance on the other. Red flags, 16" × 16", were placed on the extreme end of each of the points or wings. In addition, there were flashing marker lights and tail lights on the trailer, and a flashing amber light on that portion of the base which protruded on the left or traffic side of the trailer. All lights were flashing at the time of the occurrence.

The third vehicle in the caravan (the second truck) was a semi-tractor trailer driven by Wilfred H. LeDuc. This trailer was about 8' wide and carried a crated roller 14' in width, which extended 3' from each side of the trailer. There were flags on the outer edges of the bearing and a series of warning lights on the vehicle. The two vehicles which followed were also semi-trailers carrying loads which did not extend out from the trailers. The final vehicle was a station wagon with a large sign on top which stated, "Wide-Slow-Load Ahead."

Plaintiffs' caravan, possessed with the permit as above shown, was examined by the Illinois weight master at the Illinois-Indiana line on Route 30, on May 3, 1961, and he approved the continuation of the caravan into Illinois. When it reached Joliet, Illinois, it headed south on U.S. 66.

Defendants' vehicle (owned by Lowe) was a Ford truck with a grain box, the widest point of which was 7'10". On May 3, 1961, Covington drove the truck from a point near Kankakee, entering Route 66 at Chenoa, Illinois, about 40 miles north of the scene of the occurrence, and headed south. Highway 66 at the point of the occurrence (and for several miles in each direction) is straight and level, with four lanes, two lanes for southbound vehicles separated from two lanes for those northbound by a grassy divider or median strip. Each lane is 12' in width, with a 2' shoulder between the edge of the lefthand, southbound lane and the grassy portion of the median strip. The weather was bright and sunny, the pavement dry and visibility good. Covington said that as he drove south on Route 66, he could see "as far as the normal eye could see," between one and two miles.

Covington first saw plaintiffs' caravan about a mile north of Bloomington, followed it for about a mile and attempted to pass. When the radiator of his vehicle was even with the back of the cab of Hobson's truck, the box on Covington's truck struck one of the wings of the radar base.

There is some dispute as to the facts surrounding the occurrence. Plaintiffs' testimony showed that Hobson was driving his vehicle as close to the righthand side of the road as possible, that Covington had adequate space to pass on the left and that Covington caused the collision by permitting his truck to veer to his right into the side of Hobson's truck. Defendants' testimony showed that Covington was driving as nearly as he could to the left side of the southbound lanes, and as the right front corner of the body of his truck came to the front part of the radar antenna hub which was a part of the...