Gillaspie v. Nebraska Tractor & Equipment Co.

122 N.W.2d 17, 175 Neb. 401, 1963 Neb. LEXIS 180
CourtNebraska Supreme Court
DecidedJune 7, 1963
DocketNo. 35357
StatusPublished
Cited by2 cases

This text of 122 N.W.2d 17 (Gillaspie v. Nebraska Tractor & Equipment Co.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gillaspie v. Nebraska Tractor & Equipment Co., 122 N.W.2d 17, 175 Neb. 401, 1963 Neb. LEXIS 180 (Neb. 1963).

Opinion

Messmore, J.

This is an action at law to recover damages for personal injuries sustained by the plaintiff Glen A. Gillaspie when he was struck by a truck driven by defendant [402]*402Donald F. McHugh, an employee of the defendant Nebraska Tractor & Equipment Company, a corporation. The trial court directed a verdict in favor of the plaintiff and against the defendants and submitted to the jury solely the question of damages sustained by the plaintiff as a result of the accident. The jury returned a verdict in favor of the plaintiff in the amount of $3,000. The plaintiff filed a motion for new trial which was overruled. Plaintiff appealed to this court.

There is no dispute that the Nebraska Tractor & Equipment Company is a Nebraska corporation; that there existed in the city of Omaha a “Y” intersection where Howard Street, an east-west thoroughfare, is joined by St. Mary’s Avenue, a northeast-southwest thoroughfare, at Seventeenth Street, a north-south thoroughfare; that on the west side of the “Y” intersection there is located a safety island which separates Howard Street and St. Mary’s Avenue; that prior to August 11, 1958, the city of Omaha had white lines painted on the surface of the street at this intersection to indicate pedestrian crosswalks; that crosswalks on the west side of the intersection lead to and from the safety island separating Howard Street and St. Mary’s Avenue; that on August 11, 1958, a truck owned by defendant Nebraska Tractor & Equipment Company and operated by its employee, defendant Donald F. McHugh, within the scope of his employment, in a northerly direction on Seventeenth Street, was making a turn to the left in the intersection; and that while so turning, the truck collided in the intersection with the plaintiff who was a pedestrian.

The plaintiff’s petition and the amendment thereto alleged in substance that while crossing the street in a crosswalk, with a green traffic signal in his favor, the plaintiff was struck by a truck owned by the defendant Nebraska Tractor & Equipment Company, and operated by defendant Donald F. McHugh in the course of his employment by said company; that the accident was proximately caused by the negligence of the defendants; [403]*403and that as a result of such negligence the plaintiff suffered personal injuries including an acute coronary infarction, medical expense, loss of wages, and permanent disability.

The defendants in their answer denied plaintiff’s allegation of injury and damages alleged to have been sustained by him, and alleged that said accident occurred by reason of the plaintiff’s own negligence, which negligence was more than slight and contributed to the accident.

Glen A. Gillaspie will be referred to as plaintiff, and the defendant Donald F. McHugh as McHugh.

The plaintiff, at the time of the trial, was executive secretary of the central branch of the Y.M.C.A. in Omaha. He was 59 years of age. On the date of the accident, which occurred at the intersection of Seventeenth Street and St. Mary’s Avenue, he proceeded to cross the street to the traffic island and then go from the island across Howard Street to the Y.M.C.A. At the time of the accident he was in the crosswalk. The traffic light was green and in his favor. Before he attempted to cross the street, he glanced to his right and saw a parked car which he thought might make a turn onto St. Mary’s Avenue or Howard Street. The driver of the car nodded his head, indicating that the plaintiff' could proceed across the street. It was a clear and dry day. As the plaintiff proceeded to cross the street he was looking straight ahead to make sure he would get to the island before the traffic light would turn red. When he was approximately two-thirds of the way across the space between the curb and the island, he noticed an object out of his side vision. He threw up his arm and turned in a general direction to the left, and then the collision occurred. The accident happened so quickly that he did not know how far the truck was from him. He turned instinctively, and was clipped by the rear-view mirror of the truck which came into contact with him. This rear-view mirror extended from the left [404]*404gatepost of the truck and hit his right elbow, and the left rear fender struck his right hip. He was thrown to the pavement and rolled over at least once. When he was next conscious of where he was, he was lying face down on the pavement outside of the crosswalk to the left. He got up and looked for the driver of the truck who got out of the truck and came over to him. The right leg of the plaintiff’s trousers was torn down the seam.

The plaintiff testified that his elbow gave him severe pain. His concern was that he might have a chipped elbow bone. His hip was quite bruised from the impact of the truck. He experienced a tightness across the general region of his chest. After he left the scene of the accident he went directly to the Y.M.C.A. and contacted his secretary. He told her what had happened and that he would be away from the office until he could get an X-ray taken of his elbow. This X-ray cost $18. He went to Dr. Simonds’ office in the Medical Arts Building and had the X-ray taken, and then returned to his office in the Y.M.C.A. The plaintiff further testified that that evening he was pretty well exhausted and had a tightness in his chest which persisted, causing him not to sleep well. He was awakened once or twice that night with pain in his chest. The next morning he lacked energy and wanted to stay in bed, but felt that he should get back to work, which he did. He worked the next 6 or 7 days and was able to do the planning and desk work required of him at that time of the year. During the 8 days following the accident, while he was sitting at his desk or walking around, he would periodically have sharp pains in the center part of his chest and feel that he was being suffocated. The pain in his chest would last from 15 to 20 minutes and then subside. He would have such pains three or four times a day. As to his physical condition during those 7 or 8 days, he would be short of breath and have a tightness in his chest which seemed to persist. How[405]*405ever, he worked normal hours at his office those 8 days. On the morning of August 19, 1958, it was difficult for him to get out of bed. He was listless but went to work, and while sitting at his desk he felt that the room was stuffy, and he began to get severe pains in his chest. He called Dr. McCarthy’s office and was told to come to the office. He started to go to Dr. McCarthy’s office and got as far as the lobby of the Y.M.C.A. and realized that he could go no farther. He was perspiring profusely and laid down on a bench in the lobby. He was taken to the Bishop Clarkson Memorial Hospital by the rescue squad vehicle and was admitted to the hospital by an intern. He was first given oxygen, and then Dr. McCarthy arrived. At the time the plaintiff arrived at the hospital, his pain was quite severe and was in the center part of his chest. The pain persisted until he was given a sedative to deaden it. He was admonished to lie perfectly still, was given medicine and sedatives from time to time, and an ice pack was placed on his chest each half hour for 3 or 4 days. He was given oxygen constantly. He remained motionless on his back for about a week. He was in pain all the time and had a tightness in his chest. The plaintiff testified that he had never had anything like that prior to the accident, and had never been treated for a heart condition of any sort. He was in the hospital for 5 weeks and then permitted to go home and remain quiet.

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Bluebook (online)
122 N.W.2d 17, 175 Neb. 401, 1963 Neb. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gillaspie-v-nebraska-tractor-equipment-co-neb-1963.