Borzea v. Anselmi

• Decision Date: 16 June 1952
• Docket Number: No. 2583,2583
• Citation: Borzea v. Anselmi, 71 Wyo. 348, 258 P.2d 796 (Wyo. 1952)
• Parties: BORZEA, v. ANSELMI et al.
• Court: Wyoming Supreme Court

Page 796

258 P.2d 796

71 Wyo. 348

BORZEA, v. ANSELMI et al.

No. 2583.

Supreme Court of Wyoming.

June 16, 1952.

J. R. Armstrong, Rawlins, Edward E. Murane, Casper, Glen G. Stanton, Rock Springs, for appellants.

Albert E. Nelson and Kenneth G. Hamm, Rock Springs, for respondent.

BLUME, Chief Justice.

This is an action brought by the plaintiff against the defendants, who were partners, to recover damages occasioned by reason of the fact that on January 24, 1950, a Mercury automobile driven by Anselmi from east to west collided with the body of plaintiff severely injuring him. The case was tried at Rawlins, Wyoming, with a jury in attendance pursuant to a change of venue from Sweetwater County to Carbon County. The jury returned a verdict in favor of the plaintiff in the sum of $36,867.05. Underneath the signature of the foreman appears the following: 'A. $1,867.05 for hospital and medical and professional care. B. $5,000 for pain, suffering, mental anguish, fright, inconveniences and damage to nervous system. C. $30,000 for permanent disability resulting in the loss of past, present and future earnings.' The defendants have appealed the case to this court.

The plaintiff in his amended petition alleged the partnership of the defendants herein and set out specifically the various injuries sustained by plaintiff, including temporary and permanent injuries received by the plaintiff; and that plaintiff was compelled to pay out the sum of $1,867.05 for hospital, medical and other care. Plaintiff pleaded certain provisions of the ordinance of the town of Rock Springs, in which town the injuries herein were sustained. Among these provisions is one which provides that in the district in which the plaintiff lived no car should travel at more than 20 miles per hour and that an automobile travelling at 20 miles per hour should be able to stop at 25 feet, if travelling at 30 miles per hour to stop at 56 feet. Plaintiff alleged that Anselmi carelessly and negligently drove the car at an excessive speed namely, in excess of 20 miles per hour, contrary to the ordinances of the city. He specifically alleged (c) that Anselmi negligently and carelessly drove and operated said Mercury automobile at said time and place without due regard for the rights and safety of pedestrians crossing said 9th Street, in that, he failed to decrease the speed of said Mercury automobile, or to keep a proper lookout for pedestrians crossing said street; (d) that Anselmi negligently and carelessly drove and operated said automobile, in that, he disregarded, or failed to observe, plaintiff proceeding in a southerly direction across said 9th Street; (e) that Anselmi drove and operated said automobile negligently and carelessly, in that, he failed to keep said automobile under proper control so as to avoid striking and colliding with plaintiff crossing said street; (g) that Anselmi negligently and carelessly failed and neglected to decrease the speed of, or apply the brakes on said automobile so as to avoid colliding said automobile with the body of the plaintiff; (h) that Anselmi negligently and carelessly failed to turn said automobile to the right so as to avoid colliding said automobile with the body of the plaintiff. Plaintiff further alleged: 'That all of the afore-mentioned acts of negligence and carelessness on the part of said defendants combined, concurred and were the proximate cause of the injuries to plaintiff.'

The defendants in their answer generally denied the allegations of the amended petition and also pleaded contributory negligence on the part of the plaintiff. This allegation of contributory negligence was denied by the plaintiff in a reply.

The plaintiff, who was a coal miner, lived approximately in the middle of two blocks in question here and on the south side of 9th Street in Rock Springs, which is also part of the Lincoln Highway. These blocks are of the unusual length of 1094 feet with no crossings except at the end of the blocks. There was no sidewalk on the south side of the street but there was a sidewalk on the north side. On the day in question, the plaintiff left his home about 2 o'clock in the afternoon in order to go to work in a mine situated northeasterly from where he lived. He, as was his custom and that of others, crossed 9th Street from the south to the north in order to walk along on the sidewalk on the north side of the street. He walked for a short distance easterly when his son, Patrick Borzea, who was driving a car easterly honked in order to pick the plaintiff up and drive him to work. The son parked his car at the south curb, a short distance east of where plaintiff was then walking. Plaintiff continued to walk eastward until he was about opposite of the place where his son's car was parked. He then proceeded to cross the street to the south in order to get into his son's car. When he had proceeded about 18 feet in crossing the street, he was hit by the left front fender and left front headlight of the Mercury car driven by the defendant Anselmi, who came from the east and was travelling west. Plaintiff was thrown onto the street, perhaps dragged along by the car for a number of feet, and was severely injured. He was bleeding profusely when carried to the south curb. He was taken to the hospital at Rock Springs where he remained apparently for about four months. He was there treated by Dr. Prevedel. That physician testified that plaintiff had bruises over his whole body. He suffered from a fractured left femur around the knee joint. He complained of severe left side chest pain; he was short of breath, his pulse was rapid; he had a cut over his left eyebrow. X-rays were taken and it was found that plaintiff had a fractured leg, so it was splinted. Two to four days later plaintiff complained of severe chest pain. An X-ray was taken, which revealed that plaintiff was suffering from a diaphragmatic hernia with parts of the abdominal contents in his chest, which caused shock and strangulation. A further X-ray revealed a linear fracture of the third lumber vertebra in the small of his back. Plaintiff's leg was put in a cast. He was subsequently taken to Salt Lake City for treatment by Dr. Howard, assisted by Dr. Prevedel. The chest cavity of plaintiff was opened on the left side. 'We found a large rent or hole in his diaphragm * * * an organ or a muscle that separates the chest from the abdomen * * * which measured approximately six inches in diameter which contained approximately one-half of his stomach and a portion of his large bowel, which was adhered and scarred to the left lower lobe of his lung. This was all freed and placed down in position to his abdominal cavity and the defect sewed back together.' In the process the 9th rib had to be removed. The plaintiff continued to be under the care of a physician. He went to Lava Hot Springs, and to the springs in Thermopolis, seeking relief from this condition. But he continued to have pains up to and at the time of the trial herein. Dr. Prevedel made a further examination of plaintiff on April 12, 1952, shortly before the trial in this case. The testified that the plaintiff had then reached his maximum recovery; that he complained of persistent left side and chest pain; he had approximately an 80 degree limitation of full abduction of his arm; he could not touch his left ear with his arm; he had weakness of his entire shoulder girdle--the collar bone, shoulder joint and scapula. Those muscles were definitely weak which showed evidence of wasting of the muscles. Plaintiff complained bitterly upon forceful motion of his shoulder joint. His left leg was left approximately one inch shorter than his right. He also showed some wasting of the muscles of his thigh, approximately one inch difference between both legs. He was unable to completely extend his left knee, with around 10 degree limitation of full extension. He has a lot of residual pain. 'It comes from two things, from removal of the rib and, of course, on each side of the rib is a nerve, the costal nerves, the costal nerves are imbedded in scar tissue and when nerves are caught in scars they become very painful and after, say, a year and a half to two years when the pain still persists probably another operation has to be performed to cut the nerve in the scar tissue to free the man from pain.' The physician further testified that the plaintiff was totally disabled from performing any manual work, although he might be able to act, for instance, as a watchman.

Anselmi testified that he drove from 15-20 miles per hour; that he first saw plaintiff when some 17-20 feet away; that plaintiff was running, and darted from in front of Mrs. Crowley's car parked at the north curb, looking neither to the right nor to the left; that when plaintiff finally saw his (Anselmi's car), he 'froze' in his tracks, and that if he had continued going he would not have been hurt; that he, Anselmi stopped his car within about five feet after the impact. His testimony was disputed by plaintiff and other witnesses. Mrs. Crowley testified that there was no traffic on the street; that she first saw Anselmi's car when about even with her own car--standing some 20-30 feet east of where plaintiff was crossing--that this was just a 'second' before the impact. How far east she had been looking, or how far east she could see does not appear. She stated that the Anselmi car travelled four to five car lengths (about 64-80 feet) after the impact. She saw the plaintiff crossing the street, and he 'was looking in front of him.' Patrick Borzea, the plaintiff's son testified that when he parked his car at the south curb of the street, he did not see any approaching car from the east. How far east he was able to see does not appear. He also stated that the Anselmi car stopped within about 50 feet or a little more after the impact. He and the defendant Anselmi picked up the plaintiff, when the latter was injured, and took him...