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December 30, 1970

Alvin H. FRANKEL, Guardian of the Estate of Marilyn Heym, an incompetent, and Herbert Heym and Mary Heym, his wife, Plaintiffs,
UNITED STATES of America, Defendant. Alvin H. FRANKEL, Guardian of the Estate of Marilyn Heym, an incompetent, Plaintiff, v. Mary HEYM, Defendant, Third Party Plaintiff, v. UNITED STATES of America, Third Party Defendant

Sheridan, Chief Judge (M.D. Pa., sitting by special designation).

The opinion of the court was delivered by: SHERIDAN

On April 30, 1966, a car driven by Mary Heym in which her daughter, Marilyn Heym, was a passenger collided with a car driven by Ronald Glasser, an employee of the Department of the Army. The accident occurred at the intersection of West Chester Pike with Providence Road, in Edgemont Township, Delaware County, Pennsylvania. Both Mrs. Heym and her daughter suffered serious injuries.

 Two negligence actions were started to recover damages for the injuries. Civil Action No. 40367, filed May 26, 1966, is an action against the United States under the Federal Tort Claims Act, 28 U.S.C. ยงยง 1346(b), 2671 et seq. by Alvin H. Frankel, Guardian of Marilyn Heym, an incompetent, and by Herbert Heym and Mary Heym to recover for the injuries to Mary Heym and to Marilyn Heym. *fn1" The United States filed an answer in which it denied liability and set up contributory negligence as a defense. It filed a counterclaim against Mary Heym for damages to its car. Civil Action No. 68-876, filed April 25, 1968, is a diversity action by Alvin H. Frankel, Guardian of Marilyn Heym, an incompetent, against Mary Heym to recover for the injuries to Marilyn Heym. Mary Heym brought in the United States as a third party defendant.

 The actions were consolidated for trial and tried to the court without a jury. The substantive law of Pennsylvania controls in both actions.

 Mrs. Heym testified that when she reached the medial lane and was then traveling at 3 miles an hour, Glasser was between 645 and 1075 feet from the intersection, and that she concluded she had ample time to cross the westbound lanes. The westbound lanes were each 12 feet wide, and the medial strip was 16 feet wide. The accident happened in the outside westbound lane as she was about to enter, or had just entered, Providence Road. Thus, she traveled 30 feet from the medial strip to the point of impact. Since she accelerated from 3 to 10 miles an hour, she would have traveled that distance in approximately 3 seconds, if a mean of 7 miles an hour is used. For Glasser to have covered between 645 and 1075 feet in the same time, he would have had to be traveling at speeds in excess of 140 miles an hour. *fn2" Mrs. Heym was operating a small Corvair station wagon. After it was hit broadside by the larger Dodge sedan, the vehicles came to rest only 25 feet from the point of impact. Pictures show that the left front fender, headlight and perhaps the left front part of the grill of the Dodge were damaged. The hood was not sprung and the remainder of the front seemed intact. No windows were broken, Glasser was injured slightly. He had abrasions of the elbow and some neck pain. There is no indication that Glasser's passenger, Patterson, was injured. The damage to the Corvair was confined for the most part to the right front and rear door area. The Dodge struck the Corvair in the center bar separating the front and rear doors. The windows were not broken, there was no damage to the right front fender, and little damage to the right rear panel. Mrs. Heym and Marilyn were thrown from the Corvair *fn3" and this, rather than the impact, undoubtedly caused the extensive injuries.

 Glasser testified it was possible that he had been traveling at 55 miles an hour in the half mile before impact. Although he applied his brakes 50 to 60 feet before impact, the car slowed "very little," and he admitted that it was out of control during that 50 to 60 feet. He admitted that from a point when he was a half mile from the intersection until he was 50 to 60 feet from it, he did not apply his brakes because he mistakenly assumed that Mrs. Heym was going to turn left to proceed westerly on West Chester Pike. He changed from the inside lane to the outside lane thinking he could pass her on the right. *fn4"

 Glasser cannot claim the benefit of the "sudden emergency" rule. One driving carelessly cannot say he was placed in sudden peril. Chadwick v. Popadick, 1960, 399 Pa. 88, 159 A. 2d 907. The emergency arose, at least in part, because of his negligence in proceeding too fast under the conditions, in his failure to heed the movements of Mrs. Heym, and in his failure to decelerate at a proper time.

 Mrs. Heym knew that vehicles on West Chester Pike had the right of way, and that the speed limit was 50 miles an hour. She had an opportunity to observe the position and movement of Glasser since she had an unobstructed view to her right of more than half a mile. She crossed the eastbound lanes at 6 to 7 miles an hour, and did not stop at the medial strip, but merely slowed to 3 miles an hour and then proceeded across the westbound lanes, accelerating to 8 to 10 miles an hour as Glasser closed in. He was only 250 feet from the intersection when she started from the medial strip. She should not have attempted to cross the westbound lanes under the circumstances. Glasser had the right of way. Mrs. Heym was not justified in thinking she could enter and cross the intersection without danger of collision. She was negligent and her negligence was a substantial factor in causing the accident and the injuries to Marilyn.

 The negligence of Glasser and the negligence of Mrs. Heym were concurrent and the negligence of each was a proximate cause of the accident and the injuries to Marilyn.

 Marilyn was severely injured. She was taken by ambulance to the Emergency Room of the Haverford Hospital. She was unconscious, in severe shock and appeared to be near death. She had a compound fracture of the skull, severe brain damage, severe crush injuries to the left hand and wrist, a comminuted fracture-dislocation of the carpal and metacarpal bones of the left hand, a fracture of the left clavicle, contusions of her kidneys, and symptoms of gross convulsive seizures. Her whole body was spastic; her arms and legs were extended; her hands were in a state of deformity; her eyes were rolled back; she had severe bleeding lacerations; she was also bleeding vaginally and through her ears. Six specialists performed emergency surgery. She remained in Haverford Hospital until July 18, 1966, during which time she was in a coma. It was necessary to amputate her left arm. She had frequent convulsions and seizures and occasional elevations in temperature which required that she be packed in ice. During most of the time she was rigid and spastic. On July 18, she was transferred to the University of Pennsylvania Rehabilitation Center in a state of coma vigilante. On July 28, she was transferred to All Saints' Hospital because the Center could not cope with her noisy outbursts. The discharge diagnosis was diffuse severe brain damage with bilateral corticospinal tract signs, coma vigilante, below elbow amputation -- left forearm, chronic urinary tract infection, severe dermatitis of the buttocks and a fractured left clavicle.

 She did not benefit from the therapy at All Saints' Hospital because of her semi-conscious condition, and on August 12, she was transferred to Manchester House, a nursing home which specializes in the care of patients with brain damage. She gradually regained consciousness and some control over physical movements. On May 31, 1967, she was released to her parents who were instructed to continue rehabilitation at home. This was not successful and on April 1, 1968, she was admitted to the Pennsylvania Rehabilitation Center, Bureau of Vocational Rehabilitation, Johnston, Pennsylvania. She was discharged on May 3, because of her emotional outbursts. From the time of the accident and for many months thereafter, she had a catheter into her bladder.

 At the present time, aside from her obvious physical injuries, her principal disabilities stem from the brain damage which affects her mentally, emotionally and her motor control. She is obsessed with food; her weight has increased from 130 pounds to 180 pounds; she has tremendous strength but cannot stand without help and support; she walks with a broad ataxic gait; her behavior is erratic; she frequently laughs or cries for no apparent reason and has problems described as emotional lability; her mental capacity is superficial and simple; her memory is inferior to 98 percent of the population; she is mentally about 5.13 years of age, with perseveration and obsessive compulsive behavior; she is psychotic; men in general are targets of her emotional outbursts and stubbornness. Psychological tests show that she is so greatly disturbed that a complete examination could not be made. There is no hope of recovery or improvement.

 The hospital and medical bills to the time of trial totaled $17,325.69. These expenses were fair, reasonable and necessary for the treatment of her injuries. Under Pennsylvania law, her father is entitled to recover for the expenses incurred before she reached the age of 21. Discovich v. Chestnut Ridge Transp. Co., 1952, 369 Pa. 228, 85 A. 2d 122. It has been held that if the mother of an injured minor is contributorily negligent, an action by the father for any losses which he sustained by reason of injuries to the minor is barred. Riesberg v. Pittsburgh & Lake Erie R.R., 1962, 407 Pa. 434, 180 A. 2d 575. However, the recent case of Smalich v. Westfall, 1970, 440 Pa. 409, 269 A. 2d 476, seemingly has altered the rule of Riesberg:

"* * * [A] plaintiff ought not to be barred from recovery against a negligent defendant by the contributory negligence of a third person unless the relationship between the plaintiff and the third person is such that the plaintiff would be vicariously liable ...

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