Rispo v. Motor Freight Express

74 Pa. D. & C.2d 59, 1975 Pa. Dist. & Cnty. Dec. LEXIS 67
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJune 26, 1975
Docketno. 200
StatusPublished

This text of 74 Pa. D. & C.2d 59 (Rispo v. Motor Freight Express) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rispo v. Motor Freight Express, 74 Pa. D. & C.2d 59, 1975 Pa. Dist. & Cnty. Dec. LEXIS 67 (Pa. Super. Ct. 1975).

Opinion

ANDERSON, J.,

HISTORY

The above-captioned case, which was an action [61]*61in trespass brought by David Rispo (Rispo), a truck driver who sustained injuries from a falling crate of glass, was tried before this court and a jury. A compulsory nonsuit was entered for defendant, J. A. Cunningham Equipment, Inc. (Cunningham). On October 8, 1974, a verdict was rendered for plaintiff against Motor Freight Express, Inc. (Motor Freight) in the amount of $734,434.

Motor Freight filed motions for a new trial and for judgment n.o.v., which were dismissed on March 11, 1975, after a hearing, and judgment was entered for plaintiff. On March 26, 1975, Motor Freight filed a motion to rescind judgment and reinstate its original motion. The second motion was dismissed on April 9, 1975, after a hearing. An appeal was taken to Superior Court on April 9, 1975.

Facts As we are required to do, the testimony will be discussed in the light most favorable to plaintiff, the verdict winner: Tolentino v. Bailey, 230 Pa. Superior Ct. 8, 326 A. 2d 920 (1974). On November 2, 1967, the day of the accident, Rispo, who was then 23 years of age, was employed as a truck driver by Marty’s Express, a Philadelphia trucking firm. Rispo reported for work between 7 and 7:30 a.m. About an hour later, the dispatcher for Marty’s Express, Victor Morano, told him there was no work for him there and that he was to report to Motor Freight. Rispo drove a Marty’s Express tractor to Motor Freight, which was located at 1600 Warfield Avenue, arriving at approximately 9 a.m., at which time the Motor Freight dispatcher, George Middleton, advised him that the trailer from which he was to make deliveries was still in the process of being loaded, and that Rispo had time to get a cup of coffee. Rispo went to the drivers’ room to wait. At [62]*62about 9:20 a.m., he received a call from Middleton, who told him that the trailer was ready. Rispo went down to loading bay number one and hooked his tractor to the waiting trailer. The door on the trailer was already closed, and Rispo had no opportunity to inspect the cargo. Rispo cheeked his first bill of lading, and about 10 a.m., left the Motor Freight terminal and proceeded to the first of six stops, Cunningham, located at 2025 Trenton Avenue, Philadelphia.

Rispo arrived at Cunningham at about 10:30 a.m., and was directed to pull into a side street. Rispo opened the trailer’s rear door, and a Cunningham employe, Carl C. Pulliam, was sent with a fork lift truck to unload. The consignment to Cunningham consisted of three pallets or skids of welding rods, 3 by 5 feet each, and 2 to 3 feet high. The three skids were in a row, along the width of the trailer. Two of the skids were to the extreme rear of the truck, while the center one was somewhat recessed. On either side of the two outer skids of welding rods, leaning on edge against the insides of the trailer, was a carton containing sheets of glass. The cartons were 6 to 10 feet long, 5 to 6 feet high, and 4 to 7 inches thick. There was little room between the skids and the glass. A cable was attached to one of the side skids and it was pulled closer to the trailer door by the forklift. It was then removed by fork lift. The remaining two skids were removed in the same manner. There was no evidence that the forklift, cable or skids came in contact with the crates of glass during the unloading process.

When the unloading operation was finished, Rispo saw that the two crates of glass were not secured. A third crate of glass, located further in the truck, which was leaning against other cargo, was [63]*63also unsecured. It is undisputed that the Motor Freight employes charged with loading the truck did not secure the load because they were completing their shift and did not want to work into the next shift.

Rispo concluded that the cartons had to be braced or chocked before he attempted to drive the truck to his next stop. He went to the Cunningham premises, where he obtained wood, nails and a hammer. Rispo jumped into the trailer, laid the bracing materials on the truck bed and walked to the front, where he examined the third crate of glass. As he was walking back towards the open rear, the crate of glass to Rispo’s right started to fall. Rispo tried to jump clear, but the crate fell, crushing his left leg.

Rispo was taken to St. Mary’s Hospital in a semiconscious state. Dr. Jose H. Auday was called to attend him. Auday diagnosed Rispo’s injury as a comminuted fracture of the femur (a crush-type injury) plus soft tissue injury to the thigh and leg. In addition to the major break, there were several bone fragments which were displaced.

On November 7, 1967, after ascertaining that Rispo’s physical condition was satisfactory enough to permit surgery, Dr. Auday inserted a pin, or intramedullary rod, 12 to 14 millimeters in diameter and 42 centimeters in length, through the femur from hip to knee. Rispo was placed in traction, and on November 16, 1967, he was placed in a spica cast, which extended from the lower chest to the ankle joint. Rispo was discharged from the hospital on November 22, 1967, but the cast was not removed until January 2, 1968. By May 16, 1968, Rispo was complaining of pain, and Dr. Auday found that a bursitis had developed in the left trochanteric area. On September 24, 1968, Rispo [64]*64was again admitted to St. Mary’s. X-rays indicated that the fracture was healing, so Dr. Auday incised an area above Rispo’s left hip and pulled out the pin. Dr. Auday continued to see Rispo periodically during 1968.

In January, 1969, Dr. Auday told Rispo he could do light work if it did not require much walking or climbing. Rispo returned to Marty’s Express and worked on the loading dock for several months. On October 20, 1969, Rispo was complaining of pain over the left, lower leg and there was a marked valgus deformity of the same area. Flexion was limited. X-rays showed a nonunion of the bone fragments.

On February 11, 1970, Rispo was admitted to Albert Einstein Medical Center, Southern Division. Dr. Auday performed a bone graft, utilizing bone from the thigh area, and inserted a compression plate over the femur, which was about 6 to 8 inches long, in order to immobilize the fracture and prevent further deformity. Rispo was released on March 3,1970, on crutches and without a cast, with instructions not to put weight on the leg. When Dr. Auday saw Rispo on March 26, 1970, he was doing well.

Sometime between then and April 27, 1970, when Rispo next saw Dr. Auday, Rispo’s young son became ill, and Rispo carried the 12-pound child down a flight of stairs, and later went to the hospital. For about three hours he was without his crutches, and during that period placed weight on the leg. He experienced no pain. However, X-rays taken in April, 1970, show that the compression plate had slipped a little, although there was no movement of the bone.

On May 28, 1970, in order to afford better protec[65]*65tion, a plaster cast was applied from groin to the foot. The cast permitted lifting of the leg, but no rotation or lateral motion.

Rispo continued to see Dr. Auday. On September 22, 1970, when Rispo came for an examination, he was without the cast. It had come loose and he had removed it. He was advised to stay on crutches without the cast.

By November 23, 1970, X-rays showed that the compression plate was somewhat loose and by March 23, 1971, one of the screws holding it in place had broken.

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Bluebook (online)
74 Pa. D. & C.2d 59, 1975 Pa. Dist. & Cnty. Dec. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rispo-v-motor-freight-express-pactcomplphilad-1975.