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CARDWELL v. UNITED STATES

December 1, 1952

CARDWELL et al.
v.
UNITED STATES



The opinion of the court was delivered by: GRIM

This is an action against the United States of America brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), by Baird Cardwell as father and guardian of James and Donald Cardwell, minor plaintiffs, and by Baird Cardwell, in his own right. On the basis of the pleadings and testimony I make the following special findings of fact and conclusions of law.

Findings of Fact.

 1. On September 13, 1949, at about 4:40 p.m., William McCandless was driving a 1938 Hudson four-door sedan automobile, owned by plaintiff Baird Cardwell, southward in the west lane on 50th Street in Philadelphia and was approaching the intersection of 50th Street and Greenway Avenue. Minor plaintiffs James Cardwell, sitting on the right in the back seat, and Donald Cardwell, sitting on the left in the back seat, were passengers in the automobile.

 2. At the same time a mail truck, owned by the defendant, United States of America, and operated by an employee of defendant within the scope of his employment and upon defendant's business, was proceeding westward in the north lane on Greenway Avenue and approaching the intersection of Greenway Avenue and 50th Street.

 3. When the automobile reached the north house line of Greenway Avenue, McCandless looked both to his right and left and saw no traffic on Greenway Avenue coming toward the 50th Street intersection. At the north curb line of Greenway Avenue McCandless again looked both to the right and to the left and saw no traffic approaching. His view to the left was partially blocked by an automobile parked on the north side of Greenway Avenue approximately seventy-five feet east of the intersection. He sounded his horn upon entering the intersection.

 4. Defendant's mail truck driver, traveling westward on Greenway Avenue, made no observation of traffic to his right and left on 50th Street as he approached and entered the intersection from the east. He did not see the Cardwell automobile until both the automobile and his truck were already in the intersection. He was driving the truck at an excessive speed under the circumstances. Upon seeing the Cardwell automobile in the intersection, defendant's driver applied the brakes to the truck which skidded approximately eighteen feet, according to the skid marks, and crashed into the left side of the automobile.

 5. The front of the truck struck the left side toward the rear of the automobile with such force that the truck's bumper ripped off the left rear door and projected into the back seat, damaging the automobile in the amount of $ 345.

 6. Defendant's employee was negligent in the operation of the mail truck immediately preceding the collision, in that he drove the truck at an excessive speed under the circumstances, failed to take proper cognizance of traffic moving on 50th Street toward its intersection with Greenway Avenue, and failed to have his truck under proper control.

 7. The collision of the mail truck with the Cardwell automobile was proximately caused by the negligent operation of the mail truck by defendant's employee. McCandless, the driver of the Cardwell automobile, was not guilty of contributory negligence.

 8. As a result of the collision Donald Cardwell, then fifteen years old, was knocked unconscious and was taken to Mercy-Douglass Hospital where he regained consciousness and then lost consciousness for the second time. He was given first aid at the hospital, where he spent two hours, and was then sent home, where he remained in bed for two days.

 9. Donald's injuries consisted of a brush burn, five by two and one-half inches, and bruises on the left thigh which developed into a cellulitis and muscle spasm; a concussion of the brain, which resulted in two brief periods of unconsciousness and in headaches; some injury to the lower back resulting in muscle spasm.

 10. For about three weeks following the accident, in addition to the pain from the burns, bruises, and muscle spasm in his left thigh and the spasm in his lower back, Donald suffered nausea, some loss of weight, and headaches with pain particularly over the eyes.

 11. Donald was first treated on September 15, 1949, by his family physician, Dr. Grahn, who applied salve and bandaged his left thigh, and treated it with short-wave diathermy (heat). Dr. Grahn referred Donald to Dr. Rankin, an ophthalmologist, who found nothing wrong with his eyes. Donald used crutches for a few weeks following the accident.

 12. On October 3, 1949, three weeks after the automobile accident, Donald while playing football was knocked unconscious for four minutes and was taken to Mercy-Douglass Hospital where he remained for three days. (About a year prior to this football injury Donald sustained a similar injury while playing football, lost consciousness, and was hospitalized for one week.) After the October 3, 1949 football accident Donald used crutches for approximately five weeks. He fainted eight or ten times between the time of the ...


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