*

*

"There was a traffic jam and Sgt. * * * pulled around to the left of the two lanes of traffic which were stopped. While proceeding very slowly, after we passed approximately the third vehicle, a man suddenly stepped from between the front of the third and the rear of the fourth vehicle into the path of our car. He was walking in a diagonal direction facing east. I yelled 'look out' to Sgt. * and he swerved to the left. The pedestrian continued walking into the right front fender of our car. He was thrown back and his head hit either the pavement or the front bumper of the third vehicle in the lane to the right. Sgt. * * * brought our car to a stop, after traveling about 8 feet. Our car did not run over the pedestrian. I immediately jumped out and rushed to the victim's aid. Sgt. * * * also ran back and helped me to carry the man to the right side of the road off the pavement. In the meantime the cars in the stopped lanes from which the man stepped had moved forward and were entering the race track and we could not obtain the names of the occupants as witnesses. The two police officers directing the traffic did not see the accident and after we had carried the man over to safety, Sgt. * * * went forward and brought one of the police officers back with him.

"The victim of the accident was Leo Gottlieb of 376 Summit Avenue, Cedarhurst, Long Island. Mr. Hass, who was accompanying him at the time of the accident, admitted Mr. Gottlieb was in the fault because he did not look to see if there were any approaching cars before he stepped out."

The police report covering the accident bears the following notation:

"Vehicle No. 1 a Plymouth sedan staff courier car Reg. H. Q. 9, from Mitchel Field which was east-bound on west-bound lane. When injured person crossing street from south to north side stepped out from between a line of cars that was standing still waiting to make a left turn. First aid by Dr. Steward of Elmont. "Cause: Aided person crossing not at intersection. "Responsibility: Aided person.'

No statement has been received by the War Department from Mr. Gottlieb concerning either the accident or the injuries sustained by him therein. In a letter dated July 10, 1943, it was requested that he submit to the Department a statement from his physician and the hospital describing his injuries and indicating the amount of the expenses incurred by him incident thereto. No reply has been received to that letter. A letter from Mr. Gottlieb's attorney, James I. Cuff, 99 John Street, New York, N. Y., dated July 13, 1943, reads as follows:

* * I have just received from the Nassau Hospital an abstract of the clinical report, which shows that he [Mr. Gottlieb] was admitted to the hospital on May 29, 1943, and that tentative diagnosis of the left femur and laceration of the scalp was made. X-rays were taken on May 29, 30, and 31, June 6 and 23, and July 3. The findings show the following condition:

"May 29, 30, and 31. Pelvis: Markedly comminuted fracture through the left illium extending from the anterior superior spine downward and inward through the medial border of the pelvis, involving the ischium and extending into the acetabulum. One large outer fragment was displaced outward and downward. There was a gap between the upper and lower fragments due to inward and downward displacement of part of the body of the ischium. There were fractures through the ascending ramus of the left pubic bone where it joins the ramus of the ischium with some overriding. Fracture through the inferior part of the body of the left pubic bone.

"Reexamination after application of traction. Multiple fractures of the left illium and ischium. General alinement of fragments was much better. However, there was a widening of the hip joint apparently due to traction on the femur.

"Chest: Examination made at the bedside showed some haziness of the right upper lobe. There was a zone of increased density in the left lower lobe just above the diaphragm. Findings may possibly represent atelectasis.

"'June 6, 1943. Left hip: Comminuted fractures of pelvic bones as previously reported. Relative position of fragments essentially the same. Traction had pulled down the ischium slightly in relation to the horizontal ramus of the pubic bone. Joint space still considerably widened due to downward pull of the femur.' "I am informed that Mr. Gottlieb will necessarily be confined to the hospital for a very long period of time and the prognosis is not very favorable.

"I should appreciate it if you will be good enough to advise me whether you wish to take the matter up with a view to making an adjustment, providing that is in accordance with the policy of the Department. Otherwise, the only thing left for Mr. Gottlieb to do will be to take steps to have an act passed to confer jurisdiction upon the Court of Claims to hear and determine his claim.

"You have written to Mr. Gottlieb and Mr. Haas for sworn statements as to the occurrence of the accident, and, at this time, I wish to advise you that they

decline to make any such statements. I have no doubt that you have made an investigation of the facts and circumstances attendant upon the accident, and if so, it will be apparent that the accident occurred on Hempstead Avenue near Biltmore Avenue, Elmont, N. Y. At the time the accident occurred, Mr. Gottlieb was crossing Hempstead Avenue from south to north, and had walked more than halfway across the west-bound portion of the highway, when he was struck by the automobile driven by Mr. * * (the Army driver) who was at that time traveling in an easterly direction on the west-bound portion of the highway, passing a line of east-bound cars which had been stopped by traffic.

*

"It seems to me that under the circumstances, this should be sufficient to enable you to determine the question of liability."

In reply to his letter Mr. Cuff was advised on July 20, 1943, in pertinent part, as follows:

* * The information concerning the injuries to Mr. Gottlieb should be furnished by the hospital and attending physicians. Will you, therefore, kindly comply with our request by having the hospital and physicians send us complete reports, including diagnosis and prognosis concerning the injuries sustained by Mr. Gottlieb, the duration of his incapacity, and the cost of medical expense that he has and will incur as a result of the accident with a United States Government vehicle on May 29, 1943.

"We would also appreciate Mr. Gottlieb submitting to us, under oath, the amount of time that he will lose and the value of same as a result of such injuries. This information should be supported by affidavit of his employer as to amount of salary and whether he is being paid during such loss of time. In addition to this we would like to have an opportunity to have Mr. Gottlieb examined by physicians of the United States Army."

To this letter the Department has received no reply.

The "review and recommendation" of the base legal officer, headquarters, Army air base, Mitchel Field, N. Y., with respect to this accident, reads in part as follows:

"On 29 May 1943 at 12:55 p. m., Sgt. * * * proceeding in an easterly direction on Hempstead Turnpike in a 1942 Chevrolet staff car, slowed down to approximately 6 miles per hour while passing two lines of parked cars at the right side of the road awaiting favorable signal so that they could make a left turn into Belmont Park race track, a practice which was carried on under the supervision of and with the approval of the local police who were stationed in the area. While passing the third vehicle in the line-up at his right, claimant suddenly emerged from the space between that and the fourth vehicle into his path and he swerved left. Claimant was walking diagonally east and did not notice [the Army driver's] staff car. He walked into the right front fender and bounced back, striking his head as he fell, either on the front bumper on the third vehicle in the line to the right, or on the pavement. The claimant's conduct was in violation of section 85 of the New York State motor vehicle and traffic law, which gives the right-of-way to vehicles proceeding with due care for the safety of pedestrians at all points such as this, where there are no marked or unmarked crossings. There was no damage to the Government vehicle.

"Claims officer found no negligence on the part of said * driver] * * *

*

¡the Army

and in his

"I concur in the recommendations of the claims officer, recommendation that any claim that may hereafter be filed be disallowed. I base my recommendation of disallowance squarely upon the contributory negligence of Leo Gottlieb

* *

Inasmuch as the evidence of record fairly establishes that the proximate cause of the accident was the negligence of Mr. Gottlieb in attempting to cross the street at a point other than an authorized cross walk and in failing to maintain a lookout for approaching traffic when emerging from between stopped cars, and as there was no fault or negligence on the part of the Army driver, it is the view of the War Department that there is no responsibility on the part of the Government to compensate Mr. Gottlieb for the damages sustained by him as a result of this accident. It is accordingly recommended that favorable consideration be not given to the proposed legislation.

The fiscal effect of the bill is manifest.

The Bureau of the Budget advises that there is no objection to the submission of this report.

Sincerely yours,

HENRY L. STIMSON,
Secretary of War.

IN THE MATTER OF THE CLAIM OF LEO GOTTLIEB AGAINST THE UNITED STATES OF AMERICA

STATE OF NEW YORK,

City of New York, County of New York, 88:

Leo Gottlieb, being duly sworn, deposes and says:

At the present time, I am temporarily residing at the Lincoln Hotel, Fortyfourth Street and Eighth Avenue, Borough of Manhattan, city of New York. I formerly resided at 376 Summit Avenue, Cedarhurst, Nassau County, Long Island, N. Y.

On May 29, 1943, I sustained serious personal injuries as a result of being struck by an automobile east-bound on Hempstead Avenue, at or near the entrance to the turf and field portion of the Belmont Park race track. The automobile that struck me was a United States Army staff car, and was being driven by one Salvator Giglio. I am informed that the automobile was a staff courier car, Reg. H. Q. 9, connected with Mitchel Field.

At the time the accident occurred, I was crossing Hempstead Avenue from the south side to the north side, to go through a gateway that lead to the stables of Belmont Park. At the time that I was crossing Hempstead Avenue, traffic east and west bound on Hempstead Avenue was held up by a traffic officer further east on Hempstead Avenue, and there were cars at a standstill from the point where I was crossing to the place where the traffic officer was stationed.

When I was more than three-quarters of the way across Hempstead Avenue, and approaching the northerly side of the paved roadway, an automobile eastbound and traveling on the west-bound, or northerly, side of Hempstead Avenue, came along at a high rate of speed, struck me, threw me up in the air, and that is all I can remember until I came to in the hospital.

I am informed that the car that struck me pulled out of the east-bound traffic lane, over to its left and on the west-bound lane on Hempstead Avenue, prior to the time that it struck me, and it was traveling on the wrong side of the highway at the time it struck me. I never expected a car to be traveling east-bound on that portion of the highway and I never saw it until I was struck.

After the accident occurred, I was taken to the Nassau County Hospital at Mineola, Long Island, where I was placed under the care of Dr. Hudson, one of the orthopedic specialists connected with that hospital. I remained in the hospital for nearly 2 months. When I was discharged from the hospital, I got around with the aid of two crutches, and I used the crutches for 3 months and then I walked with a cane. I still use the cane and walk with a pronounced limp.

My principal injury was, as I am informed, a fracture of the bones of my left hip and an injury to my head, as appears from the copy of the hospital record and Dr. Hudson's affidavit, which is attached hereto. I still suffer a great deal of pain from headaches and sleeplessness as a result of these injuries, and I am informed by Dr. Hudson that as a result of the injury to my hip, there will be a permanent limitation of motion in the left hip joint.

At the time of the accident, I was 57 years of age, and engaged in business for myself selling canned goods in and about the city of New York and Long Island. I used a truck, which I drove myself, and my average net earnings from this work amounted to $65 to $75 per week. As a result of the injuries which I sustained at the above-mentioned time, I have not been able to do any work up to the present time and have been unable to get anyone to do the work for me, and as a result, I have lost my earnings for that period and I believe that I will not be able to work ever again at this particular type of work, and there is no saying when I will be able to do any work.

The hospital bills and charges for the treatment accorded to me in the Nassau County Hospital, with tips and miscellaneous expenses, amounted to approximately $700, and Dr. Hudson informs me that the value of his services amounts to $500, as appears from his affidavit.

I desire to have my claim for these injuries against the United States Government presented in the Court of Claims, and request that at the earliest possible date, a bill be presented conferring jurisdiction upon the Court of Claims to hear and determine my claim.

Sworn to before me this 8th day of December 1943. [SEAL]

Commission expires March 30, 1945.

LEO GOTTLIEB.

MAURICE CIRODKIN, Notary Public.

IN THE MATTER OF THE CLAIM OF LEO GOTTLIEB AGAINST THE UNITED STATES OF AMERICA

STATE OF NEW YORK,

City of New York, County of New York, ss:

Armand Haas, being duly sworn, deposes and says:

On May 29, 1943, I was with Leo Gottlieb and witnessed the accident in which he was injured and which occurred at about noon on said day, at Hempstead Avenue, village of Elmont, Long Island.

At the time the accident occurried, Mr. Gottlieb and I were crossing Hempstead Avenue from the south to the north. Traffic east and west bound on Hempstead Avenue was at a standstill, having been held up by the traffic officer who was stationed farther east on Hempstead Avenue than the point where we were crossing. I was behind Mr. Gottlieb, and the first thing I knew, I saw an automobile approaching at a high rate of speed from my left-hand side, on the northerly or west-bound portion of the highway. In other words, he was on the wrong side of the highway. There was no horn sounded nad no signal of the approach of this automobile given at any time before the accident. I did not expect

I did not see the car until it was approximately 25 feet away. a car to be traveling east on that portion of the highway. As soon as I saw the automobile, I shouted to Leo who was a few steps in front of me, but it was too late, because before he could do anything, the automobile had struck him.

The point where we were crossing is right opposite the gate that is the entrance to the portion of Belmont Park where the stables are located, and that is where we were going to keep an appointment.

I gave my name to the police officer and remained on the scene of the accident until Mr. Gottlieb was taken to the hospital.

ARMAND HAAS.

Otho Hudson, being duly sworn, deposes and says, that I am duly licensed to practice as a physician and surgeon in the State of New York, and have been engaged in such practice for upward of 15 years.

In May 1943 I was on the staff of the Nassau Hospital, located in Mineola, Nassau County, N. Y. On May 29, 1943, one Leo Gottlieb, residing at 376 Summit Avenue, Cedarhurst, N. Y., was brought into the hospital. It was said that he had been struck by an automobile.

The tentative diagnosis was fracture of the left femur and a laceration of the scalp. On examination at the time of his entry into the hospital, he complained of marked pain in the left lower extremity in the region of the hip, and there was some evidence of bleeding from the scalp

Physical examination on admission showed that the left lower extremity was rotated outward, adducted and apparently shortened. There was a hematoma and laceration of the scalp in the right posterior parietal region, and there was pain and muscle spasm in the region of the hip joint.

X-rays were taken and, as a result thereof, it was found that he had sustained a markedly comminuted fracture through the left ilium extending from the anterior superior spine downward and inward through the medial border of the pelvis, involving the ischium and extending into the acetabulum. One large outer fragment was displaced outward and downward. There was a gap between the upper and lower fragments due to inward and downward displacement of part of the body of the ischium. There were fractures through the ascending ramus of the left pubic bone where it joins the ramus of the ischium with some overriding. Fracture through the inferior part of the body of the left pubic bone. After the application of traction, a reexamination was made and showed multiple fractures of the left ilium and ischium. The general alinement of the fragments was better, but there was a widening of the hip joint apparently due to traction on the femur.

An examination of his chest made at the bedside showed some haziness of the right upper lobe, and there was a zone of increased density in the left lower lobe just above the diaphragm, which may indicate atelectasis.

Additional X-rays were taken on June 6, June 23, and July 3, 1943, which showed the fractures above-mentioned, with the fragments in fairly good position and alinement and some bony callus.

On May 29, 1943, a Kirschner wire was inserted for traction. Mr. Gottlieb remained in bed in the hospital for more than 2 months, after which, for several months, he went about with non-weight-bearing crutches.

His condition at present is improved, but there will be a permanent limitation of motion in the left hip as a result of the fractures to the bone. He has been under my care during the entire period, and the value of the services which I rendered to him is $500.

Sworn to before me this 6th day of December 1943.

O. C. HUDSON.

MARGARET AUDREA FEHNUL (WINDT).

THE NASSAU HOSPITAL,
Mineola, N. Y., July 9, 1943.

ABSTRACT OF CLINICAL RECORD

Prepared for: James I. Cuff, attorney, 99 John Street, New York, N. Y.
Name of patient: Leo Gottlieb, 376 Summit Avenue, Cedarhurst, N. Y.
Admitted: May 29, 1943.

Tentative diagnosis: Fracture of the left femur; laceration of the scalp. History: The patient is said to have been struck by an automobile. There is no history of unconsciousness. At the time of admission, he complained of marked pain in the left lower extremity in the region of the hip. There was evidence of bleeding from the scalp. No nausea or vomiting.

Physical examination on admission: Patient was conscious. Left lower extremity was rotated outward, adducted and apparently shortened. There was a hematoma and laceration of the scalp in the right posterior parietal region. There was pain and muscle spasm in the region of the hip joint. Pressure posteriorly in the gluteal region elicited pain.

X-ray reports May 29, 30, and 31. Pelvis: Markedly comminuted fracture through the left ilium extending from the anterior superior spine downward and inward through the medial border of the pelvis, involving the ischium and extending into the acetabulum. One large outer fragment was displaced outward and downward. There was a gap between the upper and lower fragments due to inward and downward displacement of part of the body of the ischium. There were fractures through the ascending ramus of the left pubic bone where it joins the ramus of the ischium with some overriding. Fracture through the inferior part of the body of the left pubic bone.

Reexamination after application of traction: Multiple fractures of the left ilium and ischium. General alinement of fragments was much better. However, there was widening of the hip joint apparently due to traction on the femur. Chest: Examination made at the bedside showed some haziness of the right upper lobe. There was a zone of increased density in the left lower lobe just above the diaphragm. Findings may possibly represent atelectasis.

June 6, 1943. Left hip: Comminuted fractures of pelvic bones as previously reported. Relative position of fragments essentially the same. Traction had pulled down the ischium slightly in relation to the horizontal ramus of the pubic bone. Joint space still considerably widened due to downward pull of the femur. June 23, 1943. Pelvis: Fractures as previously reported. Fragments in fairly good alinement, but there was still some widening of the hip joint due to traction.

July 3, 1943. Pelvis: Comminuted fractures as previously reported. Fragments appeared to be in fairly good position and alinement and showed evidence of bony callus.