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by her next friend, for physical injuries | Am. Neg. Rep. 566. The jury would have alleged to have been received by her by been warranted in finding upon the evidence reason of the explosion of a cylindrical tank. that the explosion was so severe as to cause This tank was about four feet long and the floor near where the plaintiff and other 7 inches in diameter, and contained liquid girls were at work to be splintered and carbonic acid gas. The explosion occurred ripped up, that bottles were thrown about in the basement of a building owned and, the room and broken, and that the girls with the exception of the first floor, oc- who were employed on this floor with the cupied by the defendant as a factory. The plaintiff were greatly excited and endeavplaintiff was employed by the United Per. ored to escape. The plaintiff testified that fume Company, which occupied the first she did not recall that she was struck by floor of the building.

anything or that she was thrown down, 1. The defendant contends that the plain but that she fainted and did not recollect tiff's injuries were due wholly to fright, anything thereafter until she found herand that she is precluded from recovery un self at her home. There was also evidence der the rule established in the case of Spade that she was examined by a physician on v. Lynn & B. R. Co. 168 Mass. 285, 38 L.R.A. the morning after the explosion; that this 512, 60 Am. St. Rep. 393, 47 N. E. 88, 2'examination “disclosed tenderness on the the injuries sustained by one in a collision 117 Ky. 11, 77 S. W. 36), to the effect that between a street car on which she was rid- to allow a recovery of damages in such ing, and a wagon, as a result of which cases would open the door to imaginary broken glass was showered over her, the claims, and a recovery would be permitted court stating that “if the glass caused no for mere fright and its consequences. But bodily injury, yet a faint and sustaining the the fright here was occasioned by threatened bruises would comply with the rule.” injury to another, and the decision is based

In a second appeal of Hack v. Dady, 142 largely on that fact. App. Div. 510, 127 N. Y. Supp. 22, an action In Chesa peake & O. R. Co. v. Robinett, 151 for damages resulting from the explosion of Ky. 778, 45 L.R.A. (N.S.) 433, 152 S. W. a plot of lead, the court, while adhering to 976, an action by a young woman to recover the theory of Mitchell v. Rochester R. Co. for injuries sustained by her when her discussed in the earlier note, that where father was put off a train on which they personal injuries are attributable alone to were riding, it was alleged in the complaint fright or shock there can be no recovery, that in removing him from the train he was holds that where the plaintiff was struck by thrown against her, causing an injury to a few drops of lead, the rule does not apply her side, and that she also suffered from and a recovery may be had.

fright when left alone upon the train. In See first appeal of Hack v. Dady, 134 discussing the right of the daughter to reApp. Div. 253, 118 N. Y. Supp. 906, in the cover for fright, it is stated that she cannot note in 24 L.R.A. (N.S.) 1159.

recover for the mere fright thereby caused On the contrary, the right to recover for her, or for fright caused by being left on the physical injury resulting from fright has train unattended by any of her family durbeen denied. The reasons given are those ing the remainder of her journey home. discussed in the note in 3 L.R.A.(N.S.) 49, Nor can she recover for fright suffered by and the cases will be taken up in the order her from the assault and battery committed there followed.

by the railway servants upon her father in

her presence, when or before ejecting him II. Fright caused by negligence. from the train, however wrongful the ejec.

tion may have been, unless the assault and a. Treating physical injury resulting battery upon the father caused his body to

from fright as a mere incident of the be thrown upon or against her as alleged in fright.

the petition, and by that means caused the See earlier cases

this question in injury to her person and consequent fright earlier notes to which this is supplementary.

and suffering complained of.

As to the liability of a carrier for b. Remoteness of the damage.

frightening passenger, see note to this case

in 45 L.R.A. (N.S.) 433. Recovery for physical and mental suffer- On the contrary, the theory that injuries ing of a woman resulting in a miscarriage, resulting from fright are too remote as a due to fright at an unlawful assault upon matter of law to be the basis of an action her husband, was denied in McGee v. Van- in damages has been expressly disapproved. over, 148 Ky. 737, 147 S. W. 742, Ann. Cas. Spearman v. McCrary, 4 Ala. App. 473, 58 1913E, 500. The court cites from the opin- So. 927, supra; Green v. Shoemaker, 111 ion in the earlier Kentucky case of Reed v. Md. 69, 23 L.R.A. (N.S.) 667, 73 Atl. 688, Ford, 129 Ky. 471, 19 L.R.A. (N.S.) 225, supra. 112 S. W. 600, that the damages arising

c. Doctrine of expediency. from pain and suffering resulting solely from fright, unaccompanied by any physical In Morris v. Lackawana & W. Valley R. injury, are too remote and speculative, and Co. 228 Pa. 198, 77 Atl. 445, a woman was again from Morse v. Chesapeake & 0. R. Co.' 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 devel- her falling upon the floor when, by reason of oped on the shoulder and side, and there fright, she fainted and became unconscious, was a mark over her right shoulder and still we are of opinion that the rule adopted another near her hip.” The physician testi- in Spade v. Lynn & B. R. Co. does not apply. fied that these injuries could have been We think that if the effect of the excitement caused by a fall or by being thrown violent and fright under which the plaintiff labored ly against some object in the room. In view was to cause her to faint and fall to the of the effect of the explosion upon the plain floor and thereby sustain physical injuries, tiff, and the fear and fright caused thereby, she would not be barred from recovery. a jury might find, notwithstanding the ab. The distinction between the case at bar and sence of direct testimony to that effect, that the Spade Case lies in the fact that in that she was thrown to the floor or against some case, unlike the present case, there was object and so received the physical injuries no evidence of physical injury, and for that described. Upon such a finding, manifestly reason it was held "that there can be no rethe rule laid down in Spade v. Lynn & B. R. covery for fright, terror, alarm, anxiety, or Co. supra, would not be applicable. If, as distress of mind, if these are unaccompanied the defendant contends, the physical inju-l by some physical injury.” Spade v. Lynn & carrier for a miscarriage resulting from the 1 815, an action in damages by a pedestrian nervous shock occasioned by the car in against the owner of an automobile for damwhich she was riding bumping over the ages caused, as the pedestrian claimed, by track at an open switch.

being knocked down by the automobile while In Driscoll v. Gaffey, 207 Mass. 102, 92 N. crossing a street. In the course of the opinE. 1010, the court declared that there can ion it is stated by the court that "if, from be no recovery for illness due solely to mere fright or excitement, the plaintiff fell fright. It would seem from the context, and and was not touched, as the defendant conespecially from the citation of Spade v. tends, then the defendant was not liable." Lynn & B. R. Co. 168 Mass. 285, 38 L.R.A. 512, 60 Am. St. Rep. 393, 47 N. E. 88, 2 Am. III. Fright resulting from wilful tort. Neg. Rep. 566, cited in note in 3 L.R.A.

A husband was held entitled to recover for (Vis.) 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 a railway company in going upon the premwas evidence justifying a finding that there ises of the plaintiff at night for the purpose was a battery to the person. See also Mc. of inspecting and examining some lumber in Gee v. Vanover, 148 Ky. 737, 147 S. W. 742, the yard which the plaintiff was suspected Ann. Cas. 1913E, 500.

of stealing. St. Louis Southwestern R. Co.

v. Alexander, Tex. —, 172 S. W. 709. On the contrary, the doctrine of expediency, or the theory that to allow a recovery rule is fully settled in Texas that in case of

It is here stated by the court that the ior injuries resulting from fright would physical suffering arising from mental conopen the door to imaginary and fictitious dition produced by wilful tort, the wrongclaims, has been expressly disapproved. Spearman v. McCrary, 4 Ala. App. 473, 58 doer is liable for all mental and physical inSo. 927, supra; Greenv. Shoemaker, 111 juries which naturally result from such

tort. Md. 69, 23 L.R.A.(N.S.) 667, 73 Atl. 688, supra.

IV. Fright because of another's danger. d. Miscellaneous cases.

A woman cannot recover for personal in

juries due solely to fright caused by an unNo recovery can be had for a shock to lawful assault upon her husband, where she the nervous system of a woman causing her apprehended no danger or injury, to her to suffer and continue to suffer in body and person from the one assaulting her husband. in mind, as a result of the boisterous con- McGee v. Vanover, 148 Ky. 737, 147 S. W. duct of a number of negroes who occupied a 742, Ann. Cas. 1913E, 500. part of the same passenger coach in which A nervous shock sustained by a workman she was placed. Norris v. Southern R. Co. incapacitating him from labor, consequent 84 S. C. 15, 65 S. E. 956.

upon a fatal accident to a fellow workman, A woman cannot recover damages for in. is a personal injury by an accident arising jury to her health resulting from nervous out of and in the course of the employment, ness caused by fright at being negligently within the meaning of the English workplaced on a train other than that called for men's compensation act of 1906. Yates v. by her ticket, a fact that was not discovered South Kirby, F. & H. Collieries (1910] 2 K. until the train had left the station. Crutch. B. 538, 79 L. J. K. B. N. S. 1035, 103 L. T. er v. Big Four, 132 Mo. App. 311, 111 S. N. S. 170, 26 Times R. 596, B. W. 891.

Comp. Cas. 418, 3 N. C. C. A. 225. There is no discussion of this question in See Spearman v. McCrary, 4 Ala. App. Bachelder v. Morgan, 179 Ala. 339, 60 So.'473, 58 So. 927, supra, I. W. A. E.


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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; Mc102, 92 N. E. 1010.

Intire v. Roberts, 149 Mass. 450, 4 L.R.A. 2. Without question the plaintiff was ! 519, 14 Am. St. Rep. 432, 22 N. E. 13; Mephysically injured as the result of the ex. Gee v. Boston Elev. R. Co. 187 Mass. 569, plosion, and while she was in the exercise 73 N. E. 657; Saxe v. Walworth Mfg. Co. of due care. Proof of these facts alone, how: 191 Mass. 338, 114 Am. St. Rep. 613, 77 ever, are not sufficient to entitle her to re- N. E. 883, 20 Am. Neg. Rep. 359; 29 Cyc.

In addition some evidence of negli- 477, 478. See also McNicholas v. New Eng. gence on the part of the defendant must ap- land Teleph. & Teleg. Co. 196 Mass. 138, pear in order that it may be charged with 81 N. E. 889. liability. The negligence charged is in sub- The rule of res ipsa loquitur cannot be stance that the defendant so negligently held to apply in this case, because it never kept, used, and employed on its premises is applicable unless the defendant has con. certain chemicals that an explosion occurred trol of the agency which causes the injury. whereby the plaintiff was injured. The un- It follows that judgment must be entered disputed evidence shows that the explosion for the defendant in accordance with the was caused by the bursting of a cylindrical terms of the report. steel tank filled with carbonic acid gas, and So ordered. 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

OREGON SUPREME COURT. of the tank upon the defendant's premises

(Department No. 1.) is not sufficient to charge it with negligence. In other words, the defendant's liability

SOPHIA SALMI, Respt., cannot be established by proof of the explosion alone. To charge the defendant COLUMBIA & NEHALEM RIVER RAILwith negligence there must be some evidence

ROAD, Appt. (aside from the presence of the tank on the defendant's premises at the instant of the

- Or. --,

146 Pac. 819.) explosion) to show that it was at that time in its custody and control. In our opinion,

Fright physical injury liability. there was an entire absence of such evidence. blast in close proximity to and casts débris

1. One who negligently explodes a heavy The defendant's superintendent, in answer

upon a dwelling occupied by a woman, when to interrogatories, stated that he did not lie could have foreseen that some injury was know the cause of the explosion, that the likely to happen to the inmates of the house tank was not rightfully on the premises at from his act, is liable for a physical injury that time, and was not handled by any em- inflicted upon the woman in falling as a ployee or other agent of the defendant, and result of a swoon from fright at the explo

sion. that it was not being handled under his immediate personal supervision. But the jury Appeal instruction - assumption of

fact. might not have believed this evidence, yet

2. It is error to assume the existence of the superintendent's denial that the tank was rightfully on the premises would not tion to recover damages for personal in

an injury in instructing the jury in an acfurnish evidence that it was rightfully juries due to another's negligence. there, or in the custody or control of the Pleading - personal injury defendant. All that the evidence presented tion of existing condition. shows is that the tank at the moment of 3. One cannot recover for aggravation of the explosion was upon the defendant's a condition existing at the time of a perpremises. How it happened to be there, sonal injury due to another's negligence unwhether rightfully or otherwise, and how

Note. - For ght to long it had remained there does not ap- injury resulting from fright caused by a

cover for physical pear; nor is there any evidence to show that wrongful act, see note to Conley v. United such tanks or their contents were manufac-' Drug Co. ante, $30.


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

duties." Evidence explosion fright condi- She claims damages in the sum of $4,600. tion of premises.

For a second cause of action the com. 4. Evidence as to the débris deposited on plaint recites a similar occurrence hapadjoining premises by an explosion is admissible in an action to recover damages

pening Nov nber 12, 1913, attended by for injury to a woman on the premises be another swoon of the plaintiff and the incause of a swoon from fright at the explo

crease of the previous hernia, all to her sion.

damage in a sum set forth, together with Same - action for tort evidence as to

certain special damages which she avers. contract.

The answer traversed the allegations of 5. In an action to recover damages for in the complaint. The defendant also declares juries to a woman through fright at an ex: that in the progress of the work of clearplosion on adjoining property, evidence is ing the right of way the contractor of the not admissible of a promise that no explo- defendant put in a proper charge of powder, sion should occur while her husband was

gave the plaintiff due warning that in away from home.

thirty minutes the blast would be set off, (March 9, 1915.)

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 care


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 Statement by Burnett, J.:

matter in the answer was denied by the It appears from the record that the line reply. A judgment resulted in favor of the of the defendant's road passes the residence plaintiff after a jury trial, and the defendof the plaintiff within 150 feet, but con

ant appealed. siderably higher up a steep hillside. The Messrs. Veazie, McCourt, & Veazie and complaint states in substance that on June J. W. Day, for appellant: 6, 1913, the defendant caused a large and Damages cannot be recovered for mere unsafe blast of powder or dynamite to be fright without resulting physical injury. exploded immediately above her residence

Ewing v. Pittsburgh, C. C. & St. L. R. on the right of way, well knowing at the Co. 147 Pa. 40, 14 L.R.A. 666, 30 Am. St. time that the plaintiff and her two daugh- Rep. 709, 23 Atl. 340; Haile v. Texas & P. ters were in the house, and having negli- R. Co. 23 L.R.A. 774, 9 C. C. A. 134, 23 U. gently advised them to go into the back S. App. 80, 60 Fed. 557; Smith v. Postal bedroom, which was farthest away from Teleg. Cable Co. 174 Mass. 576, 47 L.R.A. the right of way, until the blast should be 323, 75 Am. St. Rep. 374, 55 N. E. 380, 7 discharged. The plaintiff charges that they Am. Neg. Rep. 54. accepted this counsel and thereupon took No liability exists for acts of negligence refuge in the room and remained there causing fright or shock, in the absence of until the blast was set off. She then al- physical impact, even though subsequent leges: “That by reason of said blast, physical ailments result. 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, i Co. 168 Mass. 285, 38 L.R.A. 512, 60 Am. by reason of which negligent and wrongful St. Rep. 393, 47 N. E. 88, 2 Am. Neg. Rep. act the plaintiff was greatly frightened and 566; McGee v. Vanover, 148 Ky. 737, 147 was rendered unconscious, thereby falling in S. W. 742, Ann. Cas. 1913E, 500; Morse a swoon, upon the floor, by reason of which v. Chesapeake & 0. R. Co. 117 Ky. 11, 77 S. she sustained a painful, severe, and perma- W. 361; Ward v. West Jersey & S. R. Co. nent injury, to wit, a large and painful 65 N. J. L. 384, 47 Atl. 561; Deming v. rupture of the umbilicus, resulting in a Chicago, R. I. & P. R. Co. 80 Mo. App. 152; large and painful umbilical hernia, from St. Louis, I. M. & S. R. Co. v. Bragg, 69 the effects of which she has suffered great Ark. 402, 86 Am. St. Rep. 206, 64 S. W. and excruciating physical and mental pain 226. and suffering, and from the effects of which An act of negligence which produces she has ever since been prevented from at- fright from which physical ailment results

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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 Miller v. Baltimore & O. S. W. R. Co. N. W. 1. 78 Ohio St. 309, 18 L.R.A.(N.S.) 949, 125 Am. St. Rep. 699, 85 N. E. 499; Braun v. Burnett, J., delivered the opinion of the Craven, 175 Ill. 401, 42 L.R.A. 199, 51 N. court: E. 657, 5 Am. Neg. Rep. 15; Chittick v. Among other things, it is charged that Philadelphia Rapid Transit Co. 224 Pa. 13, the immediate cause of injury was the sud22 L.R.A.(N.S.) 1073, 73 Atl. 4; Scheffer v. den fear of the plaintiff for which no action Washington City, V. M. & G. S. R. Co. 105 lies. Many authorities are cited to susU. S. 249, 26 L, ed. 1070.

tain the proposition that for mere fright Plaintiff cannot recover for mere aggra- without an attendant or resulting physical vation of a hernia existing prior to June injury a cause of action will not lie, al6th, 1913, the date of the first blast. though subsequently physical ailments re

Maynard v. Oregon R. & Nav. Co. 46 Or. sult. A careful analysis of the plaintiff's 15, 68 L.R.A. 477, 78 Pac. 983; Dorn v. allegations on that point leads to the conClarke-Woodward Drug Co. 65 Or. 516, 133 clusion that she does not claim damages for Pac. 351.

the alarm she describes, but only relies upMr. Glen R. Metsker, for respondent: on it as one link in the chain of causation

Where the fright is accompanied by con- culminating in the actual physical hurt of temporaneous physical injury, however which she complains. The lighted squib slight, the right to recover is never denied. caused no damage to the person upon whom

Hess v. American Pipe Mfg. Co. 221 Pa. it first fell; but the individual who started 67, 70 Atl. 294; Green v. Shoemaker, 111 | its flight set in motion an agency which, Md, 69, 23 L.R.A.(N.S.) 667, 73 Atl. 690; | operating naturally and hence in a manner Sloane v. Southern California R. Co. 111 reasonably to be anticipated, ultimately Cal. 668, 32 L.R.A. 193, 44 Pac. 323, 8 Am. produced harm for which he was liable to Neg. Cas. 76; Bell v. Great Northern R. Co. the person injured. So in this case, if the Ir. L. R. 26 C. L. 428.

testimony for the plaintiff is to be credited, Whether the negligence of defendant was the defendant inaugurated violent action the proximate cause of the injuries to plain- by blasting which operated at once upon tiff does not depend on whether the particu- her mentality, producing swoon, followed lar casualty or injury was such as the de- in unbroken and immediate sequence by her fendant should or might have foreseen, but is fall upon an upturned stool, resulting in simply a question whether it was such neg. the trauma of hernia for which she claims ligence that, under the circumstances, ordi- damages. This constitutes the attendant nary prudence would have admonished it or eventuating physical injury prescribed that its act would probably result in injury by most, if not all, the precedents cited by to someone.

the defendant as a condition of recovering Eberhardt v. Glasgow Mut. Teleph. Asso. damages where fright is involved. 91 Kan. 763, 139 Pac. 416; Rodgers v. Mis- It is quite the ordinary thing, and a resouri P. R. Co. 75 Kan. 222, 10.L.R.A.(N.S.) sult to be expected, that a woman would 658, 121 Am. St. Rep. 416, 88 Pac. 885, 12 be frightened by a loud explosion, espeAnn. Cas. 441; Barnett v. United Kansas cially when attended by débris falling all Portland Cement Co. 91 Kan. 719, 139 Pac. around her and into the very house where 484; Sloane v. Southern California R. Co. she was. The rest follows in normal sue111 Cal. 668, 32 L.R.A, 193, 44 Pac. 323, 8 cession. The instinct of self-preservation, Am. Neg. Cas. 76; Mentzer v. Western U. a mental phenomenon, induced B. to throw Teleg. Co. 93 Iowa, 752, 28 L.R.A. 72, 57 off the squib which had fallen upon him. Am. St. Rep. 294, 62 N. W. 3.

The immediate result the injury In the total absence of bodily impact or charged upon A, who first threw the misactual and visible contemporaneous physical sile. Likewise in this instance the exploinjury, plaintiff could still recover for in- sion of the blast naturally produced the juries due to nervous shock and fright. mental state of fright, the fright the faint,

Huston v. Freemansburg, 212 Pa. 548, 3 the faint the fall, the fall the fracture of L.R.A.(N.S.) 49, 61 Atl. 1022; Gulf, C. & the abdominal wall, upon which the plainS. F. R. Co. v. Hayter, 77 Am. St. Rep. tiff rests her cause of action, all following 856, and note, 93 Tex. 239, 47 L.R.A. 325, in a close and immediate series. In the 54 S. W. 944, 7 Am. Neg. Rep. 359; Sloane illustration of the squib, as well as in the v. Southern California R. Co. 111 Cal. 668, concrete case before us, mental disturb32 L.R.A. 193, 44 Pac. 321, 8 Am. Neg. Cas. ance formed a link in an unbroken chain of 76; Bell v. Great Northern R. Co. Ir. L. R. I causation created by the initial negligent


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