Before PHILLIPS, HUXMAN and MURRAH, Circuit Judges.
This is an action brought by True against Lee Way Motor Freight, Inc.,*fn1 and a cross action brought by Lee Way and Employers Casualty Company against True, each seeking property damage, growing out of a collision between two trucks owned and operated by True and Lee Way. True and Lee Way are common carriers of freight.The True truck consisted of a tractor and a semi-trailer tank of 4,605 gallons capacity. The Lee Way truck consisted of a tractor and a trailer. The collision occurred on Highway 66, an east and west highway, at a point about one-half mile east of Luther, Oklahoma, at about 4:30 a.m., August 21, 1945. The True vehicle was traveling west, en route from Tulsa to Oklahoma City with a cargo of gasoline. The Lee Way vehicle was traveling east en route from Oklahoma City with a cargo of freight. The collision occurred on a bridge. In both directions from the bridge the highway runs on an upgrade.
Praytor, the driver of the True truck, testified that he had changed a leaky tire at Stroud, Oklahoma; that as he approached the bridge he stopped to urinate and examine his tires; that he then proceeded on; that as he pulled his truck back into the highway and was straightening out he saw the Lee Way truck coming over the hill from the opposite direction; that both he and the Lee Way driver dimmed their lights; that "I though I would have time to get across the bridge before he [Lee Way] got on it, and that is the last thing I remember." He further testified that the grade from the east was not quite as steep as the grade from the west; that, in his judgment, at the time of the collision he was traveling 25 to 30 miles an hour and the Lee Way vehicle was traveling 45 to 50 miles an hour; that he did not cross the center line of the highway at any time from the top of the hill to the point of collision.
Over an objection, he was permitted to testify that he was taken to a hospital and was unconscious for 36 hours; that his skull was fractured and that he suffered from dizzy spells and at times his mind went "blank."
Mitchell, the driver of the Lee Way truck, testified that he was traveling 30 to 32 miles an hour; that as the True truck approached he dimmed his lights; that he signaled with his lights two or three times but that the driver of the True truck did not dim his lights; that the True truck made a swerve over the center line of the road and then pulled back to the right side of the road; that when the True truck was about 100 feet from the Lee Way truck the former angled toward him and came over the center line of the road; that the True truck was over the center line about a foot or a foot and a half at the time of the collision and that the Lee Way truck was at all times on its side of the road and at no time crossed the center line; and that in his effort to avoid the collision he pulled over as close to the south bannister of the bridge as was possible without impining on the bannister.
Over objection, the following questions were asked and answers adduced on cross-examination:
"Q. You are an official of the Teamsters' Union aren't you? - A. At the present, yes sir.
"Q. I will ask you to state whether or not it isn't true that you are involved in the 'Quick Charge' case that the law firm of which I am a member is contesting the union in on the 6th floor of this building now, and has been for nearly a week. - A. I would be glad to answer it. I was hired by this Teamster's Local and I have been a member of that Local for some years, and upon the 27th day of last February it become necessary that the Lee Way Motor Freight Company I was employed by -
"Q. The only question I asked you - A. I want to tell you my relation with the -
"Q. All I asked you was if you are an official of the Union? - A. As an employee.
"Q. You are employed by the Union? - A. That is right.
"Q. And you have been in the court room during the trial of that case in which Judge Dudley, the head of my firm is engaged, ever since it has ...