Lloyd Levitt v. H. J. Jeffries, Inc., and Billy Merle Harding

517 F.2d 523, 20 Fed. R. Serv. 2d 263, 1975 U.S. App. LEXIS 14689

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 14, 1975
• Docket: 73-1345
• Status: Published

Opinions

GRANT, Senior District Judge.

Plaintiff herein was the operator of a Camaro automobile which collided with a semi-tractor and trailer owned by defendant H. J. Jeffries, Inc., and operated by defendant Harding. The accident occurred on January 4, 1970, at 11:00 O’clock P.M. The pavement was wet from traffic and melting snow. Defendants’ tractor-trailer unit, weighing 46,000 pounds, was exiting from Interstate Highway No. 70 and at the area of the collision, after stopping at a stop sign at Illinois Route 32, was exiting from the cloverleaf, making a left hand turn on to Route 32, intending thereby to proceed North on Route 32. At the time of the collision, the tractor-trailer unit in the process of making its left hand turn, was blocking both lanes of traffic of this two-lane Route 32.

Plaintiff was driving his automobile South on Route 32. Route 32 is bridged over Interstate 70 at this point. The distance from the crest of the bridge over Interstate Highway 70 to the center of the exit ramp (being the approximate point of collision), is 942 feet. At the crest of that bridge the pavement is 15.8 feet higher than the level of the pavement at the point of impact.

Plaintiff and his passenger testified that the speed of their car was at no time more than 40 to 45 miles per hour. Defendant driver and his passenger testified that plaintiff’s car approached the point of impact from the crest of the bridge in the range of 50 — 70 miles per hour.

Plaintiff and his passenger testified that after seeing the semi-unit in front of them the speed of their car was reduced to 20-30 miles per hour. Defendants testified that at no time did plaintiff’s car reduce its speed after leaving the crest of the hill.

Plaintiff and his passenger testified that when they saw the truck they applied their brakes forceably, and continued to do so until point of impact. Officer Gillespie checked for skid marks 5 minutes after the accident occurred and found none. Defendant driver also checked for skid marks along with said officer, and found none.

Plaintiff testified that when he first saw the truck it was about 200 feet in front and had already crossed the center line of Route 32. Defendant driver testified that, after stopping for the stop sign at Route- 32, he looked both right and left, saw no traffic approaching, and then entered Route 32, turning his tractor in a left hand turn and had attained a speed in low gear of 2.3 miles per hour in the distance of 40-A5 feet he had traveled at the time of collision. Defendant operator further testified that he was just over the center line of Route 32 when he first saw lights of a car coming over the rise of the bridge.

With that background, the collision occurred when plaintiff’s auto, while still in its proper lane for southbound traffic, struck the trailer broadside, moving its load (a truck weighing 15,000 pounds) 6 to 8 inches sideways.

At the time of trial the jury found the issues in favor of plaintiff and against the defendants and, also, answered a special interrogatory finding the plaintiff free from contributory negligence. One of the issues presented for review is whether the trial court erred in excluding certain evidence. For reasons hereinafter stated we find that the trial court did err and we reverse for a new trial.

At the beginning of the trial plaintiff filed a Motion in Limine requesting that defendants be required to refrain from showing, or attempting to show, the consumption of intoxicating beverages on the part of plaintiff, unless such evidence would establish intoxication. The defendants were not prepared to prove intoxication, and for that reason the Court granted this Motion and directed the defendants to refrain from offering any evidence with regard to the use of intoxicants. The Court’s ruling was based on Warp v. Whitmore, 123 Ill.App.2d 157, 260 N.E.2d 45, which at page 48, contains the following language:

“Evidence of drinking of intoxicants will not, of itself, support a charge of intoxication, and plaintiff here did not introduce any evidence of intoxication apart from drinking.”

Defendants on the other hand, contend that the Court erred in granting plaintiff’s Motion in Limine and that they should have been permitted to introduce evidence concerning the plaintiff’s consumption of intoxicants prior to the accident, as a circumstance to be weighed by the jury in their determination of the issue whether or not plaintiff exercised ordinary care for his own safety, or, whether he was contributorily negligent in failing to maintain a proper lookout of the roadway ahead and by failing to slow his car, or bring it to a stop, and avoid colliding with the tractor-trailer unit. In support of their position defendants argue that both the defendant driver and his passenger would testify that when they opened the door of the Camaro automobile following the collision they detected the strong smell of alcohol, and, further, that at a pre-trial deposition, the passenger Winkleman acknowledged that he and plaintiff had consumed a number of bottles of beer during a period of several hours prior to the accident.

We hold that the Court erred in granting the Motion and excluding this evidence from the consideration of the jury. A United States District Court sitting in a diversity case is not bound by Illinois law, but, rather, looks to Rule 43(a) F.R.Civ.P., which speaks to the admissibility of evidence in the United States Courts. Evidence is admissible if it meets any one of the three-pronged tests stated therein. Rule 43 is a rule of admissibility not a rule of exclusion, and the statute, rule, or prior practice that favors admissibility is the one that governs.¹

In a diversity case where, as here, a state exclusionary rule would exclude evidence that the federal court otherwise would admit under Rule 43(a), the provisions of Rule 43(a) must govern and the state exclusionary rule will not be followed.²

Furthermore, it is noted that the new Rules of Evidence for United States Courts and Magistrates have been approved and promulgated and will become effective later this year. Rule 401 provides:

Rule 401. Definition of “Relevant Evidence.”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to determination of the action more probable or less probable than it would be without the evidence”.

Although Rule 401 is not yet effective, this Court, almost four years ago, suggested that the district courts in this Circuit should use the then proposed Rules of Evidence “as guidelines and at least given consideration in the exercise of their discretion in making evidentiary rulings. There, may, of course, be cases in which a proposed rule should not be followed. We have concluded, however, that this is not such a case”.³

For the above reasons we hold that the granting of the Motion in Limine and the exclusion of the evidence of the consumption of intoxicants prior to the collision was an abuse of discretion, and we reverse for a new trial.

1 . See Wright and Miller, Federal Practice & Procedure, Sec. 2403 and cases cited therein.

2 . See Wright and Miller, Federal Practice &. Procedure, Sec. 2403 and many analogous cases cited therein. 1 ■ '

3 . United States v. McCarthy, 445 F.2d 587 (7th Cir. 1971).