The opinion of the court was delivered by: RAYFIEL
This is an action under the Federal Tort Claims Act (Title 28 U.S.Code §§ 1346(b) and 2671 et seq.) for the recovery of damages sustained by the plaintiffs as a result of a collision between an automobile owned and operated by the plaintiff Harold Rehm, hereinafter called Harold, and an airplane owned by the defendant and piloted by one of its officers or employees.
At about 8:30 p.m. on October 15, 1958, while Harold was operating his 1953 Pontiac automobile in an easterly direction along the Southern State Parkway, in this District, a large troop-carrier airplane, owned by the defendant and operated by one of its officers or employees, having exhausted its supply of fuel, was caused to make a forced landing on the parkway in or near the path of Harold's automobile, colliding with it, and causing Harold and his wife, the plaintiff Mary Rehm, hereinafter called Mary, to sustain the injuries which are the basis of this action.
In a companion case, Schneider v. United States of America, D.C., 188 F.Supp. 911, 915, my colleague, Judge Mishler, having found that the accident which resulted in the injuries sustained by the plaintiff therein was occasioned by 'some negligent act of commission or omission of the defendant, its agents, servants or employees,' granted judgment to the plaintiff. Thereafter plaintiff's motion for summary judgment herein, unopposed, was granted, and this action proceeded to trial on May 25, 1961 for the purpose of assessing the damages sustained by the plaintiffs.
As hereinbefore stated, Harold was operating his car at the time of the accident. Mary was seated to his right. The collision forced open the door alongside Mary, causing her to be thrown from the car in such a position that her right foot became wedged between the car and the curb which bordered the Highway. She remained in this position until approximately half an hour later when the automobile was raised, permitting her foot to be extricated. Harold and Mary were then removed to the Southside Hospital where it was learned, as appears from the hospital reports, (Plaintiffs' exhibit No. 4) that Mary sustained
(a) a fracture of the right external malleolus,
(b) a fracture at the base of the 4th metatarsal bone of the right foot,
(c) a laceration of the deltoid ligament of the inner aspect of the right ankle,
(d) a tear fracture of the articular surface of the metatarsal head of the right foot,
(It is true, as the defendant claims, that the fracture was not discernible on the x-ray which was taken -- it appears in the x-ray reports -- but Dr. Manning, who treated her, stated that he actually saw the fracture, and, while his testimony as to other matters was in some respects unpersuasive, I am inclined to believe his statement that he saw the fracture).
(e) a fracture of the great multangular bone of the right hand, and
(f) damage to the soft tissues of the big toe of the right foot.
Her fractures were set, the area of the wounds cleaned, and her right leg placed in a cast running from her groin to her toes, while her right hand was placed in a cast which extended to her elbow. She remained in the hospital for a period of five days, returning to her home on October 20, 1958. About six weeks thereafter Dr. Manning removed the leg cast, replacing it with one which extended from a point below the knee to the toe, and on or about December 30, 1958 he removed that cast and applied an elastic bandage. Dr. Manning visited her several times in January, 1959, finding on each succeeding occasion an improvement in her condition, a reduction in the swelling of the area involved, and less limitation of motion. He examined her again in February and March of that year, finding her further improved, and suffering only minimal pain.
Dr. Manning examined her again in March, 1961, when he found, as he stated, a 10 to 15 per cent limitation of motion. He testified that an x-ray which he took at that time disclosed an arthritic formation in the area of the internal malleolus. (it was the external malleolus which sustained the fracture) In his report of his March examination (plaintiffs' exhibit No. 6) he prognosticated that Mary may develop a traumatic arthritis which may necessitate a fusion of the ankle. He made still another prognosis respecting the possibility of additional surgery involving the first metatarsal phalangeal joint. Neither his testimony nor his highly conjectural prognoses concerning those matters impressed me.
Mary claims also to have suffered a severe neurosis as a result of the accident. She testified that since then she has frequently been in a state of hysteria, causing her to tremble violently; that she has nightmares several times a week, followed by crying spells, and is generally highly irritable and neurotic. All of those conditions she attributes to the accident. Physicians who testified in her behalf stated that the accident of October 15, 1958 was a competent producing cause of those conditions, and expressed the opinion that they are of a permanent nature. Medical experts called by the Government expressed contrary opinions respecting not only the origin of the neurotic condition but also its permanency. We are faced then with the almost customary situation where a court or jury, untrained in the art or science involved, is called upon to evaluate the ...