Chard v. Bowen

• Decision Date: 24 April 1967
• Docket Number: No. 9821,9821
• Citation: 427 P.2d 568,91 Idaho 521
• Parties: Marion D. CHARD and Ola M. Chard, husband and wife, Plaintiffs-Respondents, v. W. C. BOWEN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 568

427 P.2d 568

91 Idaho 521

Marion D. CHARD and Ola M. Chard, husband and wife, Plaintiffs-Respondents, v. W. C. BOWEN, Defendant-Appellant.

No. 9821.

Supreme Court of Idaho.

April 24, 1967.

Coughlan & Imhoff, Boise, for appellant.

Gigray, Boyd & Downen, Caldwell, for respondents.

TAYLOR, Chief Justice.

About 8:00 a. m. on January 30, 1964, plaintiff (respondent) Ola Mae Chard was driving her car west on highway 20 on her way to Caldwell where she was employed as a cook at the Elk's Club. It was a cold morning; the road was icy and slick and visibility was limited by fog to about 'a city block' (plaintiff's testimony). As she proceeded at a rate of about 25 to 30 miles per hour, she came up behind a school bus which was stopped, partially blocking the westbound lane of the two- lane highway. There were two other automobiles, also stopped, between plaintiff and the bus.

Plaintiff testified that bright taillights on the bus were clearly visible; that the bus was stopped for about five minutes while children came from a nearby farmhouse and went on board; that the bus pulled back onto the road; that the other vehicles had just left the scene; and that she was just about to start her car moving when it was struck from the rear by a pickup driven by defendant (appellant) Bowen.

Defendant Bowen testified that he was driving from Boise to Caldwell; that the weather was foggy; the road was slick; that he could see only 15 feet ahead of him when the accident occurred; that he had not been going over 20 miles per hour during the whole trip; that he slowed down to about six or seven miles per hour when a car passed him; that about 25 to 30 feet farther along he suddenly saw the taillights on plaintiff's car, and of one other car ahead of her; that he did not see the bus nor the other of the two cars ahead of plaintiff; and that when he saw plaintiff's taillights:

'I pumped the brakes lightly, it was awful slick, pumped the brakes lightly and I was getting closer all the time, that is, to the car, and the brakes just locked and slid, you know what I mean, they just slid, I slid under it.'

Defendant also testified that the impact was not severe; that it drove plaintiff's car about five or six feet forward.

Plaintiff testified that damage to her car was such that to repair it required a new gas tank, straightening of the rear cross-member, rear bumper and deck; that the wraparound windshield was cracked in two places near the steering wheel; that the left door of the two-door car was jambed so that it required alignment. As to her injury, the impact 'doubled me back over my seat' and:

'For a minute I think I was blacked out because when I went back something struck me funny, I could not think for a minute what had happened, and when I came to, why, or got straightened up again why of course I grabbed to open up my door and I couldn't open my door, it wouldn't open, I bumped it with my knee, and if I remember right, I bumped it three times before it opened.'

Plaintiff further testified that prior to the accident she had been in good health and suffered no aches or pains in her back or neck; that after the accident she had been in such pain that she often needed painkillers; and for six months she needed medication in order to sleep. Asked about her sensations of pain while at work during the week following the accident, she answered:

'Well, I was really sore from the impact, not only in my neck but through my shoulders and all through my back, of course, as time went on it settled more or less in the upper part of my neck and it really hurt, as far as lifting, I was no good at lifting, I couldn't-my arms wouldn't lift, that is all, I had to have somebody lift-do all the lifting.'

She further testified that her condition had improved at the time of trial, but was still often painful; that the pain occurred from her neck down about eight inches of the spinal column and in her arms above the elbow. Her testimony as to her physical condition was corroborated by her husband, who also testified that at the time of trial it was still necessary for her to take painkillers.

Two expert witnesses were called by the plaintiffs: Dr. Lyle Stone, an internist, and Dr. Jerome K. Burton, an orthopedic surgeon. One expert, Dr. Manley Shaw, an orthopedic surgeon, was called by defendant.

Dr. Stone, who examined plaintiff the day after the accident, testified:

'The trapezius, the muscles to the right of the spine-the neck were in extreme spasm, the head was deviated to that side because of the tightness of the muscles in this group, there was attempts to turn her head or rotate her head from one side to the other showed extreme limitation of her ability to permit this, particularly the rotation of the head to the right, flexional movements were limited and extension movements were severely limited.'

He likened the muscular spasm to a 'charliehorse' in which the tightening of the muscle becomes so severe as to be almost intolerable.

'Q Now then, these ligaments and tendons, what happens to them when you-if you have got a quick bending of the neck and sudden forceful and unusual action?

'A There is tearing.

'Q Tearing. What do you mean by tearing?

'A Tearing much as you would tear a band holding a carton apart.

'Q You have tearing then?

'A Breaking asunder of fibers.

'Q If you have a tearing of the ligaments of the spinal column, what happens when you tear flesh or tear muscles?

'A There is bleeding, the immediate result, there is severe pain and muscle spasm, the late result is limitation of motion, scarring, fixation, permanent pain and even encroachment upon the little holes through which these nerves come.'

'Q * * * And from your diagnosis of her what did you conclude happened to the ligaments and tendons of her cervical spine.

'A I concluded that she had quite considerable tearing of ligaments, I based this on the finding of muscle spasms so severe I was unable to turn the head in either direction, I was unable to bend the head backward, I was unable to bend the head forward, in fact, I was unable to straighten the head, the muscles on one side were with spasms sufficiently severe as to deviate the head over to one side, I-it was not even possible to straighten her head.'

Dr. Stone also testified that the tearing of the tissues along the spine had been sufficient that the resultant bleeding caused ecchymosis-that is, some of the blood filtered out to the surface and caused black or dark areas; that when the tissues so torn, healed, scarring resulted, causing contraction on nerve roots, resulting in limitation of motion and recurrent pain; that when plaintiff came to him the day after the accident, pain and muscular spasm were so severe that X-rays could not be taken; that X-rays taken January 31, 1964, revealed that at the time of the accident plaintiff's spine had an abnormal amount of osteoarthritis; that the large spine on the sixth vertebra had,

'been fractured away or separated away from the body of the sixth vertebra, there would be then, reason to suspect that the acute injury had something to do with the separation of that spine, otherwise I have been unable to identify any new injury to bony structure, we would therefore conclude that the injury producing the patient's physical findings was due to soft tissue injury plus a fracture of an osteophyte from one particlar body.'

As to treatment, the doctor testified:

'We frequently injected her and had great difficulty managing her pain for six weeks. Subsequently we continued to have difficulty but the pain apparently has been at a level that she has tolerated better.'

As to her condition at the time of trial the doctor testified:

'The present situation is that she has a neck which she complains of being constantly painful, she has intermittentbouts of muscle spasm, she is unable to accomplish, as she states, some of the things involved in her work as a cook which she was formerly able to do in the way of having to have someone aid her in particular movements, she has to be careful about the amount-the number of degrees in which she inclines her head least she bring on a painful bout of muscle spasm.'

As to the future, the doctor testified that the injury had aggravated and would continue to aggravate plaintiff's arthritic condition, and would result in more rapid development of that condition and acceleration of the resultant limitation upon her ability to work.

Dr. Burton testified that when plaintiff first visited him October 12, 1964:

'She was acutely tender, particularly in the subocciputal region, which is the region right behind the base of the skull, and there was considerable muscle spasm. Muscle spasm is a natural protective mechanism that nature uses on her own, whenever you have a painful area, nature will have the muscle as we say go into spasm but what they actually do is tighten up to spread (sic) the motion of the painful joint and this is what I found in the area right under the skull, not only there but in the other muscles of the neck and she was unable to accomplish the normal range of motion because of both muscle spasm and the pain associated with movement of the neck.

'Q Now, doctor, how much limitation of movement did Ola Chard have in her neck as you recall when you examined her the first time on October?

'A At that time I would say she had between 80 and 90 percent of restriction of motion, this was October of 1964.' Dr. Burton also testified that in his opinion the fracture of the vertebra spine shown by the X-rays resulted from the accident; that the injury sustained would increase the progress of the osteoarthritis; and had increased the loss of mobility from the 10 to 30 percent normal for one with plaintiff's arthritic condition to the 80 to 90 percent which he found to exist.

Dr. Manley Shaw, who examined plaintiff November 12, 1964, testified:

'I felt she had an osteoarthritis of her cervical spine which-with a...