by her next friend, for physical injuries | Am. Neg. Rep. 566. The jury would have alleged to have been received by her by reason of the explosion of a cylindrical tank. This tank was about four feet long and 7 inches in diameter, and contained liquid carbonic acid gas. The explosion occurred in the basement of a building owned and, with the exception of the first floor, occupied by the defendant as a factory. The plaintiff was employed by the United Perfume Company, which occupied the first floor of the building.

been warranted in finding upon the evidence that the explosion was so severe as to cause the floor near where the plaintiff and other girls were at work to be splintered and ripped up, that bottles were thrown about the room and broken, and that the girls who were employed on this floor with the plaintiff were greatly excited and endeavored to escape. The plaintiff testified that she did not recall that she was struck by anything or that she was thrown down, but that she fainted and did not recollect anything thereafter until she found herself at her home. There was also evidence that she was examined by a physician on the morning after the explosion; that this

1. The defendant contends that the plaintiff's injuries were due wholly to fright, and that she is precluded from recovery under the rule established in the case of Spade v. Lynn & B. R. Co. 168 Mass. 285, 38 L.R.A. 512, 60 Am. St. Rep. 393, 47 N. E. 88, 2 examination "disclosed tenderness on the

the injuries sustained by one in a collision | between a street car on which she was riding, and a wagon, as a result of which broken glass was showered over her, the court stating that "if the glass caused no bodily injury, yet a faint and sustaining the bruises would comply with the rule."

In a second appeal of Hack v. Dady, 142 App. Div. 510, 127 N. Y. Supp. 22, an action for damages resulting from the explosion of a plot of lead, the court, while adhering to the theory of Mitchell v. Rochester R. Co. discussed in the earlier note, that where personal injuries are attributable alone to fright or shock there can be no recovery, holds that where the plaintiff was struck by a few drops of lead, the rule does not apply and a recovery may be had.

See first appeal of Hack v. Dady, 134 App. Div. 253, 118 N. Y. Supp. 906, in the note in 24 L.R.A. (N.S.) 1159.

On the contrary, the right to recover for physical injury resulting from fright has been denied. The reasons given are those discussed in the note in 3 L.R.A. (N.S.) 49, and the cases will be taken up in the order there followed.

II. Fright caused by negligence. a. Treating physical injury resulting from fright as a mere incident of the fright.

See earlier cases on this question in earlier notes to which this is supplementary.

b. Remoteness of the damage. Recovery for physical and mental suffering of a woman resulting in a miscarriage, due to fright at an unlawful assault upon her husband, was denied in McGee v. Vanover, 148 Ky. 737, 147 S. W. 742, Ann. Cas. 1913E, 500. The court cites from the opinion in the earlier Kentucky case of Reed v. Ford, 129 Ky. 471, 19 L.R.A. (N.S.) 225, 112 S. W. 600, that the damages arising from pain and suffering resulting solely from fright, unaccompanied by any physical injury, are too remote and speculative, and again from Morse v. Chesapeake & O. R. Co.

117 Ky. 11, 77 S. W. 361, to the effect that to allow a recovery of damages in such cases would open the door to imaginary claims, and a recovery would be permitted for mere fright and its consequences. But the fright here was occasioned by threatened injury to another, and the decision is based largely on that fact.

In

In Chesapeake & O. R. Co. v. Robinett, 151 Ky. 778, 45 L.R.A. (N.S.) 433, 152 S. W. 976, an action by a young woman to recover for injuries sustained by her when her father was put off a train on which they were riding, it was alleged in the complaint that in removing him from the train he was thrown against her, causing an injury to her side, and that she also suffered from fright when left alone upon the train. discussing the right of the daughter to recover for fright, it is stated that she cannot recover for the mere fright thereby caused her, or for fright caused by being left on the train unattended by any of her family during the remainder of her journey home. Nor can she recover for fright suffered by her from the assault and battery committed by the railway servants upon her father in her presence, when or before ejecting him from the train, however wrongful the ejection may have been, unless the assault and battery upon the father caused his body to be thrown upon or against her as alleged in the petition, and by that means caused the injury to her person and consequent fright and suffering complained of.

As to the liability of a carrier for frightening passenger, see note to this case in 45 L.R.A. (N.S.) 433.

On the contrary, the theory that injuries resulting from fright are too remote as a matter of law to be the basis of an action in damages has been expressly disapproved. Spearman v. McCrary, 4 Ala. App. 473, 58 So. 927, supra; Green v. Shoemaker, 111 Md. 69, 23 L.R.A. (N.S.) 667, 73 Atl. 688, supra.

c. Doctrine of expediency.

In Morris v. Lackawana & W. Valley R. Co. 228 Pa. 198, 77 Atl. 445, a woman was held not entitled to recover damages of a

plaintiff's right side, shoulder, and hip, and, ries which the plaintiff received were due to some days later a slight discoloration developed on the shoulder and side, and there was a mark over her right shoulder and another near her hip." The physician testified that these injuries could have been caused by a fall or by being thrown violently against some object in the room. In view of the effect of the explosion upon the plaintiff, and the fear and fright caused thereby, a jury might find, notwithstanding the absence of direct testimony to that effect, that she was thrown to the floor or against some object and so received the physical injuries described. Upon such a finding, manifestly the rule laid down in Spade v. Lynn & B. R. Co. supra, would not be applicable. If, as the defendant contends, the physical inju- I |

carrier for a miscarriage resulting from the nervous shock occasioned by the car in which she was riding bumping over the track at an open switch.

her falling upon the floor when, by reason of fright, she fainted and became unconscious, still we are of opinion that the rule adopted in Spade v. Lynn & B. R. Co. does not apply. We think that if the effect of the excitement and fright under which the plaintiff labored was to cause her to faint and fall to the floor and thereby sustain physical injuries, she would not be barred from recovery. The distinction between the case at bar and the Spade Case lies in the fact that in that case, unlike the present case, there was no evidence of physical injury, and for that reason it was held "that there can be no re| covery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury." Spade v. Lynn & 815, an action in damages by a pedestrian against the owner of an automobile for damages caused, as the pedestrian claimed, by being knocked down by the automobile while crossing a street. In the course of the opinion it is stated by the court that "if, from mere fright or excitement, the plaintiff fell and was not touched, as the defendant contends, then the defendant was not liable." III, Fright resulting from wilful tort. A husband was held entitled to recover for

In Driscoll v. Gaffey, 207 Mass. 102, 92 N. E. 1010, the court declared that there can be no recovery for illness due solely to fright. It would seem from the context, and especially from the citation of Spade v. Lynn & B. R. Co. 168 Mass. 285, 38 L.R.A. 512, 60 Am. St. Rep. 393, 47 N. E. 88, 2 Am. Neg. Rep. 566, cited in note in 3 L.R.A. (N.S.) 60, that the court meant that, in the absence of physical impact, there could be mental suffering and physical injury sufno recovery even though a physical sickness fered by his wife, arising from fright proresulted from the fright. In this case, how-duced by the unlawful act of the servants of ever, a recovery was sustained because there was evidence justifying a finding that there was a battery to the person. See also McGee v. Vanover, 148 Ky. 737, 147 S. W. 742,

Ann. Cas. 1913E, 500.

On the contrary, the doctrine of expediency, or the theory that to allow a recovery for injuries resulting from fright would open the door to imaginary and fictitious claims, has been expressly disapproved. Spearman v. McCrary, 4 Ala. App. 473, 58 So. 927, supra; Green v. Shoemaker, 111 Md. 69, 23 L.R.A. (N.S.) 667, 73 Atl. 688, supra.

d. Miscellaneous cases.

No recovery can be had for a shock to the nervous system of a woman causing her to suffer and continue to suffer in body and in mind, as a result of the boisterous conduct of a number of negroes who occupied a part of the same passenger coach in which she was placed. Norris v. Southern R. Co. 84 S. C. 15, 65 S. E. 956.

A woman cannot recover damages for injury to her health resulting from nervousness caused by fright at being negligently placed on a train other than that called for by her ticket, a fact that was not discovered until the train had left the station. Crutcher v. Big Four, 132 Mo. App. 311, 111 S. W. 891.

There is no discussion of this question in Bachelder v. Morgan, 179 Ala. 339, 60 So.

a railway company in going upon the prem-
ises of the plaintiff at night for the purpose
of inspecting and examining some lumber in
the yard which the plaintiff was suspected
of stealing. St. Louis Southwestern R. Co.
v. Alexander, Tex. 172 S. W. 709.
It is here stated by the court that the
rule is fully settled in Texas that in case of
dition produced by wilful tort, the wrong-
physical suffering arising from mental con-
doer is liable for all mental and physical in-
juries which naturally result from such

tort.

IV. Fright because of another's danger.

A woman cannot recover for personal injuries due solely to fright caused by an unlawful assault upon her husband, where she apprehended no danger or injury to her person from the one assaulting her husband. McGee v. Vanover, 148 Ky. 737, 147 S. W. 742, Ann. Cas. 1913E, 500.

A nervous shock sustained by a workman incapacitating him from labor, consequent upon a fatal accident to a fellow workman, is a personal injury by an accident arising out of and in the course of the employment, within the meaning of the English workmen's compensation act of 1906. Yates v. South Kirby, F. & H. Collieries [1910] 2 K. B. 538, 79 L. J. K. B. N. S. 1035, 103 L. T. N. S. 170, 26 Times L. R. 596, 3 B. W. Comp. Cas. 418, 3 N. C. C. A. 225.

See Spearman v. McCrary, 4 Ala. App. 473, 58 So. 927, supra, I. W. A. E.

B. R. Co. 168 Mass. 285, 290, 38 L.R.A. 512, | tured, used, or dealt in by the defendant in 60 Am. St. Rep. 393, 47 N. E. 88, 2 Am. Neg. connection with its business. There is no Rep. 566; Gannon v. New York, N. H. & H. | evidence to show the nature of the business R. Co. 173 Mass. 40, 43 L.R.A. 833, 52 N. E. the defendant was engaged in, and nothing 1075, 5 Am. Neg. Rep. 613; Berard v. Bos- to show that it knew or had any reason to ton & A. R. Co. 177 Mass. 179, 58 N. E. 586; believe that the tank was on its premises Homans v. Boston Elev. R. Co. 180 Mass. until after the explosion occurred. Under 456, 458, 57 L.R.A. 291, 91 Am. St. Rep. these circumstances, there is no evidence to 324, 62 N. E. 737, 11 Am. Neg. Rep. 248; warrant a finding that the defendant had Cameron v. New England Teleph. & Teleg. any control over it, or was in any way reCo. 182 Mass. 310, 65 N. E. 385, 13 Am. sponsible for its presence. Kendall v. BosNeg. Rep. 86; Driscoll v. Gaffey, 207 Mass. ton, 118 Mass. 234, 19 Am. Rep. 446; Me102, 92 N. E. 1010. Intire v. Roberts, 149 Mass. 450, 4 L.R.A. 519, 14 Am. St. Rep. 432, 22 N. E. 13; McGee v. Boston Elev. R. Co. 187 Mass. 569, 73 N. E. 657; Saxe v. Walworth Mfg. Co. 191 Mass. 338, 114 Am. St. Rep. 613, 77 N. E. 883, 20 Am. Neg. Rep. 359; 29 Cyc. 477, 478. See also McNicholas v. New England Teleph. & Teleg. Co. 196 Mass. 138, 81 N. E. 889.

2. Without question the plaintiff was physically injured as the result of the explosion, and while she was in the exercise of due care. Proof of these facts alone, however, are not sufficient to entitle her to recover. In addition some evidence of negligence on the part of the defendant must appear in order that it may be charged with liability. The negligence charged is in substance that the defendant so negligently kept, used, and employed on its premises certain chemicals that an explosion occurred whereby the plaintiff was injured. The undisputed evidence shows that the explosion was caused by the bursting of a cylindrical steel tank filled with carbonic acid gas, and that at the time of the explosion this tank was upon the defendant's premises. It is plain that the mere fact of the explosion of the tank upon the defendant's premises is not sufficient to charge it with negligence. In other words, the defendant's liability cannot be established by proof of the explosion alone.

The rule of res ipsa loquitur cannot be held to apply in this case, because it never is applicable unless the defendant has control of the agency which causes the injury.

It follows that judgment must be entered for the defendant in accordance with the terms of the report. So ordered.

OREGON SUPREME COURT.
(Department No. 1.)

SOPHIA SALMI, Respt.,

V.

To charge the defendant COLUMBIA & NEHALEM RIVER RAIL

with negligence there must be some evidence
(aside from the presence of the tank on the
defendant's premises at the instant of the
explosion) to show that it was at that time
In our opinion,
in its custody and control.
there was an entire absence of such evidence.
The defendant's superintendent, in answer
to interrogatories, stated that he did not
know the cause of the explosion, that the
tank was not rightfully on the premises at
that time, and was not handled by any em-
ployee or other agent of the defendant, and
that it was not being handled under his im-
mediate personal supervision. But the jury
might not have believed this evidence, yet
the superintendent's denial that the tank
was rightfully on the premises would not
furnish evidence that it was rightfully
there, or in the custody or control of the
defendant. All that the evidence presented
shows is that the tank at the moment of
the explosion was upon the defendant's
premises. How it happened to be there,
whether rightfully or otherwise, and how
long it had remained there does not ap-
pear; nor is there any evidence to show that
such tanks or their contents were manufac-

ROAD, Appt.

(— Or. ——, 146 Pac. 819.)

Fright physical injury liability. blast in close proximity to and casts débris 1. One who negligently explodes a heavy upon a dwelling occupied by a woman, when he could have foreseen that some injury was likely to happen to the inmates of the house from his act, is liable for a physical injury inflicted upon the woman in falling as a result of a swoon from fright at the explo

sion.

Appeal

fact.

instruction

assumption of

2. It is error to assume the existence of an injury in instructing the jury in an action to recover damages for personal injuries due to another's negligence. Pleading · personal injury tion of existing condition. 3. One cannot recover for aggravation of a condition existing at the time of a personal injury due to another's negligence un

Note.

aggrava

For right to recover for physical injury resulting from fright caused by a wrongful act, see note to Conley v. United Drug Co. ante, $30.

less such condition and its aggravation are tending properly to her household and other pleaded. duties."

explosion tion of premises.

4. Evidence as to the débris deposited on adjoining premises by an explosion is admissible in an action to recover damages for injury to a woman on the premises because of a swoon from fright at the explo

sion.

Same action for tort

contract.

evidence as to

5. In an action to recover damages for injuries to a woman through fright at an explosion on adjoining property, evidence is not admissible of a promise that no explo

sion should occur while her husband was away from home.

She claims damages in the sum of $4,600.
For a second cause of action the com-

plaint recites a similar occurrence happening November 12, 1913, attended by another swoon of the plaintiff and the increase of the previous hernia, all to her damage in a sum set forth, together with certain special damages which she avers. The answer traversed the allegations of the complaint. The defendant also declares that in the progress of the work of clearing the right of way the contractor of the defendant put in a proper charge of powder, gave the plaintiff due warning that in thirty minutes the blast would be set off, and requested her to retire to a distance beyond which any rocks or débris could be PPEAL by defendant from a judgment thrown by the upheaval; but that she careof the Circuit Court for Columbia Coun- | lessly and negligently determined to remain ty in plaintiff's favor in an action brought in the house, so that any fright or injury to recover damages for personal injuries suffered by her was due to her own neglialleged to have been caused by defendant's gence. The general issue and the defense negligence. Reversed. of indeperdent contractor were interposed to the second cause of action. The new matter in the answer was denied by the reply. A judgment resulted in favor of the plaintiff after a jury trial, and the defendant appealed.

A

(March 9, 1915.)

Statement by Burnett, J.:

Messrs. Veazie, McCourt, & Veazie and J. W. Day, for appellant:

Damages cannot be recovered for mere fright without resulting physical injury.

Ewing v. Pittsburgh, C. C. & St. L. R. Co. 147 Pa. 40, 14 L.R.A. 666, 30 Am. St. Rep. 709, 23 Atl. 340; Haile v. Texas & P. R. Co. 23 L.R.A. 774, 9 C. C. A. 134, 23 U. S. App. 80, 60 Fed. 557; Smith v. Postal Teleg. Cable Co. 174 Mass. 576, 47 L.R.A. 323, 75 Am. St. Rep. 374, 55 N. E. 380, 7 Am. Neg. Rep. 54.

No liability exists for acts of negligence causing fright or shock, in the absence of physical impact, even though subsequent physical ailments result.

It appears from the record that the line of the defendant's road passes the residence of the plaintiff within 150 feet, but considerably higher up a steep hillside. The complaint states in substance that on June 6, 1913, the defendant caused a large and unsafe blast of powder or dynamite to be exploded immediately above her residence on the right of way, well knowing at the time that the plaintiff and her two daughters were in the house, and having negligently advised them to go into the back bedroom, which was farthest away from the right of way, until the blast should be discharged. The plaintiff charges that they accepted this counsel and thereupon took refuge in the room and remained there until the blast was set off. She then alleges: "That by reason of said blast, aforesaid, a great and large amount of Mitchell v. Rochester R. Co. 151 N. Y. rock, earth, stumps, and débris was hurled 107, 34 L.R.A. 781, 56 Am. St. Rep. 604, 45 and thrown with great force and violence N. E. 354, 1 Am. Neg. Rep. 121; Huston v. at and down upon the residence of the Freemansburg, 212 Pa. 548, 3 L.R.A.(N.S.) plaintiff and the room then and there occu- | 49, 61 Atl. 1022; Spade v. Lynn & B. R. pied by the plaintiff and her two daughters, Co. 168 Mass. 285, 38 L.R.A. 512, 60 Am. by reason of which negligent and wrongful act the plaintiff was greatly frightened and was rendered unconscious, thereby falling in a swoon, upon the floor, by reason of which she sustained a painful, severe, and permanent injury, to wit, a large and painful rupture of the umbilicus, resulting in a large and painful umbilical hernia, from the effects of which she has suffered great and excruciating physical and mental pain and suffering, and from the effects of which she has ever since been prevented from at

St. Rep. 393, 47 N. E. 88, 2 Am. Neg. Rep. 566; McGee v. Vanover, 148 Ky. 737, 147 S. W. 742, Ann. Cas. 1913E, 500; Morse v. Chesapeake & O. R. Co. 117 Ky. 11, 77 S. W. 361; Ward v. West Jersey & S. R. Co. 65 N. J. L. 384, 47 Atl. 561; Deming v. Chicago, R. I. & P. R. Co. 80 Mo. App. 152; St. Louis, I. M. & S. R. Co. v. Bragg, 69 Ark. 402, 86 Am. St. Rep. 206, 64 S. W. 226.

An act of negligence which produces fright from which physical ailment results

is not actionable because it is not the proxi-, 26 C. L. 428; Birmingham Realty Co. v. mate cause of the injury, and the result Thomason, 8 Ala. App. 535, 63 So. 65; could not be foreseen or reasonably antici- Mentzer v. Western U. Teleg. Co. 93 Iowa, pated. 752, 28 L.R.A. 72, 57 Am. St. Rep. 294, 62 N. W. 1.