Zimmerman v. Franzen, 16282
| Decision Date | 08 May 1950 |
| Docket Number | No. 16282,16282 |
| Citation | 121 Colo. 574,220 P.2d 344 |
| Parties | ZIMMERMAN v. FRANZEN. |
| Court | Colorado Supreme Court |
January & Yegge, Margaret R. Bates, J. Nelson Truitt, all of Denver, for plaintiff in error.
Benjamin E. Sweet, Denver, H. Lawrence Hinkley, Denver, for defendant in error.
Henry M. Franzen brought an action against Madaline Zimmerman to recover judgment for damages for personal injuries allegedly sustained by him as a result of being struck by an automobile driven by her. Trial was had to a jury, resulting in a verdict and judgment in favor of plaintiff for $10,000, to reverse which defendant has sued out a writ of error.
In the complaint it is alleged that on December 5, 1947, on a public highway in the City and County of Denver, 'Defendant negligently and carelessly drove a motor vehicle against the plaintiff who was then and there unloading a delivery truck on said public highway.' It is further alleged that as a result plaintiff's arms, back and legs were injured; that he has been unable to work; and that he incurred medical expenses, all to his damages in the sum of $25,000; further that plaintiff is informed and believes that the injuries sustained will be permanent.
Defendant in her answer denied generally the allegations of the complaint; for a first affirmative defense she alleged that the damages and injuries, if any, were sustained or proximately caused by plaintiff's own negligence; for a second affirmative defense it is alleged that plaintiff's injuries and damages, if any, were caused by his contributory negligence; for a third affirmative defense it is stated that plaintiff's injuries and damages, if any, were proximately caused by an unavoidable accident; and for a fourth affirmative defense defendant charges that plaintiff's injuries and damages if any were proximately caused by his assumption of risk.
Plaintiff replying to the second affirmative defense, pleaded the doctrine of last clear chance.
Plaintiff testified on direct examination that on December 5, 1947, and for about two and a half years prior thereto, he was employed by the Package Delivery Service Company as a helper on one of its trucks, the principal use of which was the delivery of rugs and other heavy merchandise. On the date last mentioned plaintiff was engaged in removing a rug weighing 260 pounds from the rear of the delivery truck, double parked, when defendant drove her automobile from the curb immediately to the rear of the truck and struck defendant in the back, with such force that the rug was pushed into the truck again. On cross-examination plaintiff testified as follows:
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Plaintiff further testified that at the time of the accident he declined hospitalization as being unnecessary and that the pain most noticeable was in his elbow, which he thought had been broken. Later in the evening he noticed pain in the lower part of his back and was sent to a doctor who prescribed the application of heat.
At the time of the trial, occurring on the 24th day of January, 1949, plaintiff testified that it was difficult for him to work, and he became overbalanced and fell. He further testified that in June, 1948, his employer 'laid him off' because he couldn't do his work properly, and that he had not recovered subsequently so as to engage in any employment. He also testified that prior to the accident he had enjoyed excellent health and was able to perform heavy work without inconvenience and had been engaged in such work by an ammunition manufacturer and others where it was necessary for him to do heavy lifting.
Plaintiff's attention was called to his deposition taken on October 11, 1948, in which he testified he was struck on the back of his left arm. He further testified that he was not knocked down and was not twisted by the blow, and, while he could not continue doing heavy work, he remained with his employer until June 14, 1948, except for a short time when he was 'loaned' to another company engaged in the same general class of work. He worked steadily and lost no time by reason of the accident. He was interrogated about an accident in which he was involved on February 28, 1948, when he dropped a washing machine and received injuries, but replied that he remembered nothing abut this incident. He further testified that he had no recollection of seeing a physician at about February 28, 1948, for treatment of injuries received in this accident. He stated that it was the door of defendant's car which struck him while he was standing directly in the rear and about a foot and a half from the back of the delivery truck and engaged in putting the rug on his shoulder for the purpose of carrying it into a building and laying it, and that the blow was 'just behind the elbow.'
Plaintiff's witness, Arthur Oldenettel, testified that on December 5, 1947, and for some time prior thereto, he and plaintiff, who was his helper, were engaged in delivering rugs and other heavy articles. At the time of the accident the truck had been driven northerly and was double parked on the easterly side of a public street. Witness had pulled out from other articles a rug crated 'in a small box' for delivery near where the truck was then double parked. When he saw plaintiff just prior to the accident, and immediately subsequent thereto, he was standing on the west side of the truck toward the center of the street and about two feet from the truck, and while witness was engaged with other matters in connection with his work, he heard a noise, immediately turned toward plaintiff, and was informed by the latter that he had been hit. He testified that he took plaintiff to a physician daily for about three weeks after the accident, and on one occasion, shortly after the accident, plaintiff exhibited to him 'a kind of a red mark on his back, I would say about a foot long.' Witness stated that he did not believe that defendant's automobile struck the truck. This witness' attention was called to statements made by him at the time his deposition was taken, and he then stated that he did not see the door of defendant's automobile hit plaintiff; nevertheless he did see plaintiff 'lying in the street' immediately after the accident, but this latter statement witness corrected on his examination at the trial. This witness and plaintiff continued working for about a month after the accident of December 5, 1947, when witness was laid off because the rug truck upon which he and plaintiff were working was discontinued. During this month period subsequent to the accident this witness testified that plaintiff During the time that witness and plaintiff continued operating the delivery truck, the record discloses no evidence whatever that plaintiff's incapacity to perform his work, to which this witness testified, was occasioned by any injury to his back.
Plaintiff called Drs. Clyde James Cooper and Charles G. Freed to testify in his behalf.
Dr. Cooper made a complete physical examination of plaintiff on either July 12, 1948, or July 29, 1488. He testified that on February 28, 1948, plaintiff was sent to him by his employer for treatment for an injury which he had received when he fell off a 'step carrying a washing machine and the washing machine had fallen on his left leg and foot.' At this time no complete physical examination of plaintiff was made by the witness, who required treatment for his injury on three or four subsequent occasions. Thereafter, and...
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