Brown v. Sutowski, 1028

• Decision Date: 07 October 1952
• Docket Number: No. 1028,1028
• Citation: 91 A.2d 556,117 Vt. 377
• Parties: BROWN v. SUTOWSKI.
• Court: Vermont Supreme Court

Page 556

91 A.2d 556

117 Vt. 377

BROWN v. SUTOWSKI.

No. 1028.

Supreme Court of Vermont.

Oct. 7, 1952.

Bloomer & Bloomer, Rutland, for plaintiff.

Clayton H. Kinney, Rutland, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

CUSHING, Justice.

This is an action to recover for injuries received in an automobile accident which occurred in the early evening of November 27, 1950. The plaintiff was a passenger in the front seat of a Ford sedan which had stopped at a railroad crossing to let a train pass. Just as the train passed the Ford was run into in the rear by a car operated by the defendant, forced forward about twenty-five feet and off the road into the crossing signal post with sufficient force to crumple its front right end. Trial by jury resulted in a verdict and judgment for the plaintiff to which the defendant has excepted.

As a result of the accident the plaintiff sustained a fracture of the right leg close to the hip. He was taken to the Rutland Hospital where he was confined for ten weeks until February 3, 1951. His leg was operated on and a metal band was used to hold the fractured bone in position until healed. X-rays show a good union, but the leg has been permanently shortened approximately an inch and a half. After his return home the plaintiff used crutches for four to six weeks, and it was over two months before he was able to do any work.

At the time of the accident the plaintiff and his wife owned and operated a small restaurant which had been open about three years. They employed one waitress. They kept it open from 7 to 11 in the morning for breakfast, from 4 to 9 in the evening for dinner, and they planned to keep open in the winter until midnight. There was no evidence as to the profit of the venture but the plaintiff testified that he figured his time and everything worth ninety dollars a week if he had hired it done and that his time was fairly and reasonably worth that amount. After his injury the restaurant business slackened off because his wife could not put in the hours alone.

About two months after his discharge from the hospital plaintiff returned to help in the restaurant, he could not stand any length of time, had to do light work, and washed dishes sitting down. He valued this work at about twenty-five dollars a week if he had to hire it done. On May 13, 1951, he went to work for the Lincoln Iron Works as a helper on the night shift from 6 P.M. until 7 A.M. for six nights a week at an average pay of seventy-five dollars a week. He had had no experience in this kind of work. There was not much lifting but quite a bit of shoveling. It was slow work because he could not move as fast as the others, and they let him go a little slower because they knew of his 'game' leg. Because the surface on which he worked was sand he got along all right.

After working four weeks at the Lincoln Iron Works the night shift was laid off and on June 18, 1951 he went to work for the Vermont Marble Company as a helper in the machine shop at fifty dollars a week, where he was employed at the time of the trial. His work here was on a hard level surface and it made his leg ache terribly and bothered his back. He testified that he could party get by on the job. The shortening of the leg bothered his back because it threw him 'off side'. That was the cause of most of the resulting pain. On Saturday, June 23, upon the advice of a doctor, he had an inch lift put on the heel of his shoe and had the sole raised a little, and was told that if it bothered his arch and leg the sole would have to be raised more. On the following Tuesday, June 26, 1951, he testified that he was trying it out.

In the instant case it is self evident that the shortening of the plaintiff's right leg would react adversely upon his back when walking or standing. He testified that that was the cause of most of the pain that came from the shortening of his leg. It is a matter of common knowledge that those with one leg shorter than the other frequently use a shoe with a high heel and a thick sole for the purpose of equalizing the length of their legs and preventing or alleviating just such discomfort as the plaintiff has experienced. Since it was the duty of the plaintiff to use all reasonable means to protect himself against the injurious consequences of his injury, Lloyd v. Lloyd, 60 Vt. 288, 13 A. 638, it was his duty to try any reasonable appliance, such as the lift on the heel and sole of his shoe, to help him to stand and walk more comfortably. At the time of the trial he had been trying this out for only three days, but there was no evidence of the result, and it was undoubtedly too early to observe what the effect would be with certainty, but the advice of the doctor and common experience would indicate the probability of much help.

The fact that on a sand surface he was able to get along all right at the Lincoln Iron Works, working 78 hours a week at unaccustomed work only a month after he was able to work at all, indicates that he had a pretty good right leg. When he started to help in the restaurant it was the first work that he...