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BARBER v. UNITED STATES

November 16, 1954

James F. BARBER
v.
UNITED STATES of America



The opinion of the court was delivered by: GOURLEY

This is a suit for damages arising out of a collision between a motor vehicle of the United States and a motor vehicle of the Hull Resurfacing Company in which plaintiff was a passenger.

The proceedings are brought against the United States of America pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq.

 The case was tried without a jury and the following Opinion, Findings of Fact, Conclusions of Law and Order are entered by the court.

 Opinion

 Plaintiff was a passenger in a truck being driven in a southerly direction on George Road, Ravenna Arsenal, Ohio. The vehicle in which plaintiff rode was attempting to pass the Army truck at an intersection, at which time the Army truck began to make a left turn and collided into the aforesaid truck.

 Upon a most thorough review of the testimony and the inferences to be drawn therefrom, and in evaluating inconsistencies and contradictions evinced in testimony of the various witnesses, and from direct personal observation of the demeanor, expression and forthrightness of witnesses, it is my judgment and conclusion that the accident was due to the negligence of the operators of both vehicles, and that the plaintiff passenger was free from any contributory negligence.

 The operator of the Army truck was negligent at attempting to make a left turn without observing whether or not traffic was present on the road behind him.

 The operator of the truck in which plaintiff road as passenger was negligent in failing to give warning of his intention to pass the Army truck, and in attempting to pass at an intersection.

 I must conclude, therefore, that plaintiff, being free of contributory negligence, is entitled to recover for the negligent conduct of a servant of the United States of America while acting within the scope of his authority.

 In connection with the evaluation of an appropriate award in damages, plaintiff was required to endure severe pain for an extended period of months, being required to wear casts, straps and braces. The fracture of the left clavicle has healed with a resultant deformity, while the fractures of the bones in the left foot have not healed, rendering him incapacitated from walking or standing for any substantial period of time.

 Prior to the accident, plaintiff was employed by a road construction company as a laborer. Until date of trial, plaintiff has sustained a loss in wages in the amount of $ 8,560 having earned approximately $ 230 per month. The preponderance of the evidence established the fact that plaintiff is permanently and totally disabled from performing or engaging in any gainful occupation for which he is qualified by education or experience.

 In view of plaintiff's age being sixty-nine at the time the disability commenced, plaintiff enjoys a potential life expectancy of 9.92 years. United States Life Tables and Actuarial Tables, 1939-1941, U. S. Department of Commerce.

 In addition, plaintiff has expended $ 811.50 for medical and hospital bills.

 Upon a most thorough evaluation of the evidence adduced in the record, it is my judgment that an award in the amount of $ 15,000 plus $ 811.50 for medical and hospital bills would ...


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