easy to detect or discern ice on a stony surface by artificial light, unless one bends down and examines it closely. Once he had put his feet on the ground and stood up, what was he to do? There is no evidence that he ran or was otherwise careless. He had to do his best to proceed forward until he reached the entrance. There is no evidence that there was any other way to get around to the hotel. Under the circumstances, the Court finds that it has not been established by a fair preponderance of the evidence that the plaintiff was guilty of any contributory negligence.
Accordingly, the Court rules that the plaintiff is entitled to recover and the trial will be resumed on the issue of damages.
* * *
On Issue of Damages
In this case the plaintiff sustained a compound comminuted fracture of the left tibia and fibula. He was in the hospital from December 22, 1962 until February 5, 1963, a period of about six weeks. The fracture was set under anesthetics and a cast covering his entire leg almost up to his groin was applied. He was placed in traction. The traction continued until about a week before he left the hospital.
For the first few weeks following his return home he was confined to his apartment and then on occasion, beginning March 1st, he left his apartment to go to his physician's office. He used a crutch until the 1st of October, 1963, when for the first time he was able to put on a shoe. The cast had been removed on July 12th, but he had to continue using a crutch. He returned to work on April 3, 1963 and twice a day went through a very difficult and no doubt painful procedure of climbing the stairs to the second floor, where his employer's office was located.
His doctor testified that there is a permanent shortening of the leg and limitation of motion, as well as stiffness in the foot and ankle and some deformity of the bone. He has a slight limp, according to the doctor, which will, of course, continue permanently, although he has had a satisfactory recovery.
The Court was very much impressed by the plaintiff's frankness in testifying as to his injuries. In personal injury cases we are very often confronted with the spectacle of a plaintiff, if not exaggerating, at least painting in very lurid colors all the harrowing pains that he underwent. There was nothing of this sort here, which made a very good impression on the Court and which increased the Court's confidence in the plaintiff's credibility. He said he has pain occasionally, especially in damp weather. His doctor testified that he would have fatigue after walking a considerable length of time or being on his feet a long time. The plaintiff quite candidly testified that he was not in the habit of walking long periods of time anyway.
So far as special damages are concerned, there is no dispute as to them. The medical and hospital bills and associated expenses amount to $1,909.14. He lost $1,500 in earnings. The total is $3,409.14. There has been no reduction of earning capacity.
There is no doubt in the mind of the Court that the plaintiff underwent a great deal of pain, distress and discomfort, both during hospitalization, which involved the wearing of a cast and being in traction, and also from the use of the crutch. This was not a case of a few days in the hospital; the plaintiff was in the hospital for six weeks. On the other hand, he has had a good recovery and is not in any way disabled from carrying on his usual occupation. All these matters pro and con have to be considered.
The Court will allow for pain and suffering, plus the permanent residual effects of this accident - and there were permanent residual effects, as the Court indicated - the sum of $12,000. This will mean a total judgment for $15,409.14. That will be the judgment of the Court.
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