act of the defendant, producing a result for | 28 R. I. 186, 9 L.R.A.(N.S.) 740, 66 Atl. which reason, and, as we believe, the weight of authority, holds it responsible. 202; Armour & Co. v. Kollmeyer, 16 L.R.A. (N.S.) 1110, 88 C. C. A. 242, 161 Fed. 78; Human emotions and other mental states St. Louis Southwestern R. Co. v. Murdock, naturally have a powerful influence upon 54 Tex. Civ. App. 249, 116 S. W. 139; Arhuman action and are factors which cannot thur v. Henry, 157 N. C. 438, 73 S. E. 211; be left out of the account. They must be Spearman v. McCrary, 4 Ala. App. 473, 58 reckoned as part of the necessary sequence So. 927. A valuable note on the subject of intermediate causes. It is a basic princi- appears in 3 L.R.A. (N.S.) 49, appended to ple that, if the cause set in motion by the Huston v. Freemansburg, originally reported defendant operates continuously and direct-in 212 Pa. 548, 61 Atl. 1022, although the ly upon another agency which, as a neces- case itself indicates an opinion opposed to sary consequence, affects a still different that here expressed. force by which injury is inflicted, the author of the initial cause is responsible for the final result. The difficulty lies in the application of this fundamental doctrine. The authorities are apparently in hopeless conflict on this question, but it is believed that proper discrimination will reconcile them in this manner. If, under all the circumstances, in the exercise of ordinary care, a person can discern that his act will naturally and probably result in harm of some kind to another, but not necessarily foreseen as to the exact form of injury, the former is liable in damages for the ensuing casualty. On the contrary, if no harmful result can reasonably be expected, or if there is no natural connection between the act of the defendant and the injury alleged, no action will lie. It has been decided in some instances that if one, in the commission of an unlawful act, excites in the mind of another a reasonable apprehension of personal danger, and in the endeavor of the latter to escape his own act is the immediate cause of his death, the former is criminally responsible as for homicide. Cox v. People, 80 N. Y. 500; Adams v. People, 109 Ill. 444, 50 Am. Rep. 617, 4 Am. Crim. Rep. 351; Norman v. United States, 20 App. D. C. 494; State v. Shelledy, 8 Iowa, 477. Such cases clearly recognize the induced fright as one of the train of causes set in operation by the defendant and culminating in the homicidal crime. The analogy holds good in civil cases where the wrong complained of is inaugurated by a negligent act of the defendant, and continues naturally through various concomitant and succeeding causes, including fright of the plaintiff, to the injury in question. If criminal liability can be imputed in one case, civil accountability certainly attaches in the other. In this case, considering that a large blast was set off within 150 feet of the plaintiff's house from the overhanging hillside, the jury was authorized to find that the defendant could have foreseen that some sort of injury was liable to happen The defendant contends that the trial to the inmates of that house, so that it court erred in its instruction to the jury, would be liable for such hurt in whatever excepted to by the defendant, in assuming. form it occurred, however extended the con- in spite of the general issue, that the plaincatenation of causes between its initial act tiff had received an actual injury. In statand the resulting injury. On this branch of ing the case to the jury on the first cause the case, Mr. Chief Justice Winslow, in of action the court said: "The issues for Pankopf v. Hinkley, 141 Wis. 146, 24 L.R.A. | you to determine on that first cause of ac(N.S.) 1159, 123 N. W. 625, tersely says: tion are: (1) Was the defendant negligent "The principle here decided is that when physical injury flows directly from extreme fright or shock, caused by the ordinary negligence of one who owes the duty of care to the injured person, such fright or shock is a link in the chain of proximate causation as efficient as physical impact from which like results flow." The following citations justify the conclusion here set down: Gulf, C. & S. F. R. Co. v. Hayter, 93 Tex. 239, 47 L.R.A. 325, 77 Am. St. Rep. 856, 54 S. W. 944, 7 Am. Neg. Rep. 359; Kimberly v. Howland, 143 N. C. 398, 7 L.R.A. (N.S.) 545, 55 S. E. 778; Pankopf v. Hinkley, supra; Chesapeake & O. R. Co. v. Robinett, 151 Ky. 778, 45 L.R.A. (N.S.) 433, 152 S. W. 976; Hendrix v. Texas & P. R. Co. 40 Tex. Civ. App. 291, 89 S. W. 461; Simone v. Rhode Island Co. in exploding the blast complained of? (2) Was the injury complained of by plaintiff caused by such an explosion, and, if so caused, was it the natural and proximate result of such explosion? (3) Was the plaintiff guilty of any negligent or wrongful act which contributed to and helped cause the injury?" Whether the injury happened at all is thus omitted from the calculation. This assumption of hurt seems to have run through the whole charge. A single excerpt on that subject is sufficient. Referring to the assessment of damages, the court said: "In considering that question you are to take into consideration the pain and suffering the plaintiff Mrs. Salmi has endured and will endure as the natural result of the injury she received. You are also to take into consideration the impairment of | for aggravation of a previous trauma, the through the injuries she re- judgment is reversed, and a new trial or health dered. Moore, Ch. J., and McBride and Ben. ceived for such time as . . . her health In thus assuming that the plaintiff had received an injury, the court was in error. Yarnberg v. Watson, 13 Or. 11, 4 Pac. 296; Kelley v. Highfield, 15 Or. 277, 14 Pac. 744; Salomon v. Cress, 22 Or. 177, 29 Pac. 439; Owens v. Snell, 29 Or. 483, 44 Pac. 827; Savage v. Savage, 36 Or. 268, 59 Pac. 461; West v. McDonald, 67 Or. 551, 136 Pac. 650. MASSACHUSETTS SUPREME JUDI- CHARLES E. KOONTZ V. BALTIMORE & OHIO RAILROAD COM- NEW YORK, NEW HAVEN, & HART- (220 Mass. 285, 107 N. E. 973.) nonresident absence of Judgment - cars of a foreign cor Again, it was urged by the defendant that the plaintiff was afflicted with rupture prior to the June explosion, and there was evidence proper to be submitted to the jury on that subject. Apropos of this, the defendant requested the court to charge the jury in substance that, not having pleaded the same, the plaintiff could not recover for aggravation of a rupture existing prior to the first explosion; but the court refused to so instruct. This is error within the doctrine of Maynard v. Oregon R. & Nav. Co. 46 Or. 15, 68 L.R.A. 477, 78 Pac. 983; Dorn v. Clarke-Woodward Drug Co. 2. Cars of a foreign railroad company en65 Or. 516, 133 Pac. 351; Boatright v. Port-gaged in interstate commerce are not subland R. Light & P. Co. 68 Or. 26, 135 Pac.ject to garnishment when in possession of a local company also engaged in interstate commerce, under an agreement by which the local company might transport to destination loaded cars coming into its possession, and employ the cars in its business for a per diem compensation, where it would be practically impossible for the local company to carry on its business independently of the arrangement. 771. We think there was no material error in allowing the plaintiff's witnesses to describe the condition of her premises as to the deposit of débris thereon when they were there soon after the occurrence complained of, especially as there was other testimony tending to show that the state of the property was the same as at the time of explosion. It was helpful in determining the force of the blast and its effectiveness in frightening the plaintiff into the faint she describes. It was erroneous to allow testimony concerning an alleged promise of the defendant's local manager to the plaintiff's husband that no blasting would occur while the latter was away from home. The action is not predicated upon a breach of contract, but is one of pure tort, and hence the testimony should be confined to the issues set out in the pleadings. On the main question presented it was proper to hold that fright should be reckoned as one of the causes in the succession leading to the injury; but, for the error of assuming the existence of hernia caused by the defendant, the admission of testimony about the manager's promise and the refusal to instruct the jury against assessing damages Garnishment Note. (February 26, 1915.) -Attachment or garnishment of foreign railroad car. Cars owned by a foreign railway company which have temporarily come into the state in the course of interstate transportation, through the agency of other carriers, are subject to attachment under the state laws, despite the provisions of the interstate commerce act and of U. S. Rev. Stat. § 5258, Comp. Stat. 1913, § 10058, securing conland, C. C. & St. L. R. Co. 217 U. S. 157, tinuity of transportation. Davis v. Cleve54 L. ed. 708, 27 L.R.A. (N.S.) 823, 30 Sup. Ct. Rep. 463, 18 Ann. Cas. 907. And a foreign railroad company having a R EPORT by the Superior Court for Suffolk County for determination by the Supreme Judicial Court of an action brought to recover damages for personal injuries sustained by plaintiff while in defendant's employ, in which a motion by defendant for dismissal was allowed, and a motion by the trustee to be discharged was denied. Order of dismissal affirmed. Motion to be discharged granted. The facts are stated in the opinion. If defendant desired to contradict the officer's return, it should not have waived its answer in abatement, and it then would have been entitled, as a matter of right, to have the facts in dispute found by the jury, since a jury trial was claimed in the case, and not waived. O'Laughlin v. Bird, 128 Mass. 600; Oliver Ditson Co. v. Testa, 216 Mass. 123, 103 N. traffic contract with a local company cannot defeat an attachment of its cars within the state, because of the rights of the local company under the contract, where the latter is not made a party to the proceeding. De Rochemont v. New York C. & H. R. R. Co. 75 N. H. 158, 29 L.R.A. (N.S.) 529, 71 Atl. 868. Attaching a car of a foreign railroad company when found idle within the state, under a statute permitting it in order to enable local creditors to collect their debts, is not an unlawful interference with interstate commerce. Ibid. Nor is it invalid under the Federal statute giving railroad companies authority to carry property on its way to other states, and to contract with roads of other states, so as to form continuous lines of transportation. Ibid. A state statute permitting the attachment of idle cars of foreign railroad companies is not invalid as tending to promote the evils at which the interstate commerce act of Congress is aimed, nor as directly or indirectly tending to defeat any of the purposes which Congress had in view when the statute was enacted. Ibid. And where an attachment sued out by a creditor of a nonresident railroad company was levied upon one of its freight cars standing idle and empty upon the spur track of another railroad company, which under a contract with such foreign owner was in possession of such car, with a right to use, load, and send it beyond the limits of the state, and an order was obtained to sell the car after ten days' notice, it was held in Southern R. Co. v. Brown, 131 Ga. 245, 62 S. E. 177, upon the hearing of an application for injunction by the company having such possession to prevent the sale of the car, that it was not error to grant such injunction conditioned upon its giving bond in a named sum to return the car to the proper officers of the court after its right to use the car under the contract ex E. 381; Re Hohorst, 150 U. S. 653, 37 L. ed. 1211, 14 Sup. Ct. Rep. 221; Barrow S. S. Co. v. Kane, 170 U. S. 101, 42 L. ed. 964, 18 Sup. Ct. Rep. 526. Plaintiff's act in attaching by trustee process the defendant's cars in the custody and possession of the trustee, within the territorial jurisdiction of the superior court, had no tendency to regulate interstate commerce, although indeed it might be indirectly affected thereby. Rosenbush v. Bernheimer, 211 Mass. 146, 97 N. E. 984, Ann. Cas. 1913A, 1317; Davis v. Cleveland, C. C. & St. L. R. Co. 217 U. S. 157, 54 L. ed. 708, 27 L.R.A. (N.S.) 823, 30 Sup. Ct. Rep. 463, 18 Ann. Cas. 907. Mr. Frederick Foster, for defendant: Service upon defendant was insufficient. Roberts v. Anheuser Busch Brewing Asso. 215 Mass. 341, 102 N. E. 316; Lowrie v. Castle, 198 Mass. 82, 83 N. E. 1118; Kimpired. The court said: "One of the questions involved in this case was passed on by this court in the case of Southern Flour & Grain Co. v. Northern P. R. Co. 127 Ga. 626, 9 L.R.A. (N.S.) 853, 119 Am. St. Rep. 356, 56 S. E. 742, 9 Ann. Cas. 437. We have been requested to review and overrule this decision. However, we think the ruling there made is correct, and will not disturb it. We do not think the levy of an attachment against a nonresident railroad company on one of its freight cars standing empty and idle on the spur track of a railroad in this state is invalid, and a sale thereof cannot be enjoined on the ground that such levy and sale are an interference with interstate commerce or the duties of a common carrier to the public, or on the ground that a part of the property of a nonresident railroad corporation serving the public as a common carrier cannot be sold under attachment to pay its debts, but the collection of the debt should be made by the sequestration of the earnings of such nonresident corporation, or on any other ferred to in the case cited supra. See also ground referred to in the briefs of the counsel for the plaintiff. See the authorities reAtlanta v. Grant, 57 Ga. 340; Drake, Attachm. 7th ed. § 252a, p. 253; Kneeland, Attachm. § 321, p. 237. The fact that the plaintiff held the car under the contract referred to would not make the levy of the attachment on it illegal. If the plaintiff was a hirer of the property in question, the judgment of the court granting the injunc tion, provided the plaintiff gave bond to return the car as provided for in the order, was one of which the plaintiff cannot complain in this case. Civil Code 1895, § 2913. An attachment can be levied on property of a debtor, though hired to another before the attachment is issued. There is nothing in Civ. Code 1895, § 2913, preventing an attachment from being levied on such property, and we know of no other statute having such effect." ton, 174 Mass. 208, 75 Am. St. Rep. 296, 54 N. E. 538; Drake, Attachm. 3d ed. 452; Cox v. Central Vermont R. Co. supra; Rosenbush v. Bernheimer, 211 Mass. 146, 97 N. E. 984, Ann. Cas. 1913A, 1317; Johnson v. Union P. R. Co. 145 Fed. 249, 29 R. L ball v. Sweet, 168 Mass. 105, 46 N. E. 409; Green v. Chicago, B. & Q. R. Co. 205 U. S. 530, 51 L. ed. 916, 27 Sup. Ct. Rep. 595; Atty. Gen. ex rel. Corporation Comr. v. Electric Storage Battery Co. 188 Mass. 239, 74 N. E. 467, 3 Ann. Cas. 631. There was no effectual attachment of de- 80, 132 Am. St. Rep. 799, 69 Atl. 298; Wall fendant's property. Wright v. Oakley, 5 Met. 400; Edwards v. Warren Linoline & Gasoline Works, 168 Mass. 564, 38 L.R.A. 791, 47 N. E. 502; Peabody v. Hamilton, 106 Mass. 217; Nye v. Liscombe, 21 Pick. 263; Cox v. Central Vermont R. Co. 187 Mass. 596, 73 N. E 885; Staniels v. Raymond, 4 Cush. 314. The attachment was void under restrictions in the statutes upon the right to attach freight cars. v. Norfolk & W. R. Co. 52 W. Va. 485, 64 L.R.A. 501, 94 Am. St. Rep. 948, 44 S. E. 294; Connery v. Quincy, O. & K. C. R. Co. 92 Minn. 20, 64 L.R.A. 624, 104 Am. St. Rep. 659, 99 N. W. 365, 2 Ann. Cas. 347; Michigan C. R. Co. v. Chicago & M. L. S R. Co. 1 Ill. App. 399; Southern Flour & Grain Co. v. Northern P. R. Co. 127 Ga. 626, 9 L.R.A. (N.S.) 853, 119 Am. St. Rep. 356, 56 S. E. 742, 9 Ann. Cas. 437. The attachment would be an interfer Cox v. Central Vermont R. Co. 187 Mass. ence with interstate commerce. 596, 73 N. E. 885. Van Camp Hardware & Iron Co. v. Plimp Bowman v. Chicago & N. W. R. Co. 125 An unreasonable burden was imposed on U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. the trustee. 823, 8 Sup. Ct. Rep. 689, 1062; Dubuque & S. C. R. Co. v. Richmond, 19 Wall. 584, 22 But in Pullman Co. v. Linke, 203 Fed., gress, the instrumentalities of interstate 1017, where a foreign sleeping car en route commerce transportation are, for the time from a city within the state to one with being, 'immune from judicial process,' and out the state, while waiting at a junction are 'put apart in a kind of civil sanctuary,' with its passengers, both intra and inter being, under such circumstances, exempt state, aboard to be picked up by a through from attachment and, of course, from executrain and taken to its destination, was at- tion as well, by reason of the provisions of tached under a state writ and forcibly held such acts for continuity of transportation by the sheriff, compelling the passengers to and avoidance of transshipment of freight disembark and accept other accommodations, and passengers. Davis v. Cleveland, C. C. it was held that, under § 1 of the interstate & St. L. R. Co. 217 U. S. 176, 54 L. ed. 719, commerce act as amended June 29, 1906, 34 27 L.R.A. (N.S.) 823, 30 Sup. Ct. Rep. 468, Stat. at L. 584, Comp. Stat. 1913, § 8563, 18 Ann. Cas. 907. A sleeping car company, providing that the term "common carrier" it is true, by furnishing sleeping cars under as used in the act shall include sleeping a contract with a railroad company to be car companies, the car, at the time of the used by the traveling public, does not thereattachment, was an instrumentality of inter- by assume or acquire the status of a comstate commerce, and was not subject to at- mon carrier of goods or passengers, tachment under a state writ, which would unless declared to be such by some constidirectly interfere with its operation in tutional or statutory provisions. It merely such capacity. The court said: "That the furnishes accommodations to the passengers statute under which the seizure was made is of another company, and performs only an a valid state law, enacted to enable credi- auxiliary function in their transportation; tors to collect their debts, and for no other but it is nevertheless engaged in a public or ulterior purpose, and evinces no conscious calling. Section 1 of the interstate purpose to regulate directly or indirectly commerce act as amended June 29, 1906, 34 interstate commerce, is not controverted; Stat. at L. 584, Comp. Stat. 1913, § 8563, nor is it claimed, nor can it be successfully provides that the term 'common carrier' as asserted, that the acts of Congress relating used in that act shall include sleeping car to interstate commerce were intended to companies. By virtue of this statutory proabrogate the attachment laws of the state. vision, the plaintiff's status at the time of Within their proper sphere, the Federal the seizure of the car was in legal conacts are paramount; but beyond that, the templation the same as that of an interstate law, whose purpose is wholesome, is state carrier. The car, moreover, was an operative as against all that come within instrumentality of commerce, and was when its provisions. Davis v. Cleveland, C. C. & seized actually employed as such in interstate St. L. R. Co. supra. In that case the warn- transportation. It is asserted by the plaining is sounded that interference with inter- tiff and denied by the defendants that, in state commerce by the enforcement of at- view of the facts disclosed, the acts of Contachment laws of a state must not be exag- gress, and the commerce clause of the nagerated. But when there is incompatibility tional Constitution, the car in question at between the obligations an interstate car- the time of its seizure was 'immune from rier has to its creditors and the obligations judicial process.' The views of the state it has to the public, either from the nature courts, when required to decide upon the liaof its services or under the acts of Con- | bility of cars to judicial process when in 1 64 L.R.A. 624, 104 Am. St. Rep. 659, 99 N. W. 365, 2 Ann. Cas. 347; Michigan C. R. Co. v. Chicago & M. L. S. R. Co. 1 Ill. App. 399; George D. Shore & Bro. v. Baltimore & O. R. Co. 76 S. C. 472, 57 S. E. 526, 11 Ann. Cas. 909; Pullman Co. v. Linke, 203 Fed. 1017. Mr. John L. Hall, for the trustee: The attachment of the cars was void. Cox. v. Central Vermont R. Co. 187 Mass. 596, 73 N. E. 885; Hall v. Carney, 140 Mass. 131, 3 N. E. 14. The court will not require the trustee to suffer pecuniary loss by reason of the attachment. The im Coffee v. New York, N. H. & H. R. Co. 155 Mass. 21, 28 N. E. 1128; Bowers v. Connecticut River R. Co. 162 Mass. 312, 38 N. E. 508; Foster v. New York, N. H. & H. R. Co. 187 Mass. 21, 72 N. E. 331; Ladd v. New York, N. H. & H. R. Co. 193 Mass. Washington city, and being in the course of transportation to another state, it had ceased to be governed exclusively by the domestic law, and had begun to be and was governed and protected by the national law of commercial regulation. pounding of the car delayed (briefly though it was) the transportation of all the passengers both in the car and on the train to which it was to be attached, and, in disregard of their rights and the policy of Congress favoring continuous lines and continuous carriage (U. S. Rev. Stat. § 5258, Comp. Stat. 1913, § 10058), enforced the transshipment of interstate passengers. The transportation of passengers from one state to another is in its nature national, is commerce between the states, is beyond the reach of state legislation, and admits of and requires uniformity of regulation through Congress, affecting alike all the states. L. ed. 173; Western U. Teleg. Co. v. Kansas, | 94 Am. St. Rep. 948, 44 S. E. 294; Connery 216 U. S. 1, 54 L. ed. 355, 30 Sup. Ct. Rep. v. Quincy, O. & K. C. R. Co. 92 Minn. 20, 190; Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678; M'Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244, 1 Inters. Com. Rep. 31, 7 Sup. Ct. Rep. 4; Central of Georgia R. Co. v. Murphey, 196 U. S. 194, 49 L. ed. 444, 25 Sup. Ct. Rep. 218, 2 Ann. Cas. 514; Cleveland, C. C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 44 L. ed. 868, 20 Sup. Ct. Rep. 722; Western U. Teleg. Co. v. Pendleton, 122 U. S. 347, 30 L. ed. 1187, 1 Inters. Com. Rep. 306, 7 Sup. Ct. Rep. 1126; Union P. R. Co. v. Hall, 91 U. S. 343, 23 L. ed. 428; Re Lennon, 166 U. S. 548, 41 L. ed. 1110, 17 Sup. Ct. Rep. 658; Chicago, B. & Q. R. Co. v. Burlington, C. R. & N. R. Co. 34 Fed. 481; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 19 L.R.A. 387, 5 Inters. Com. Rep. 522, 54 Fed. 730; Wall v. Norfolk & W. R. Co. 52 W. Va. 485, 64 L.R.A. 501, given attitudes and employed in interstate commerce, have been discordant, as noted in the Davis Case. No attempt will be made to review the cases there cited, or others of a kindred character which diligent counsel have pressed upon the court, or those in which the courts have passed upon the right to levy upon instrumentalities employed in the transportation of the United States mail (Harmon v. Moore, 59 Me. 428; Parker v. Porter, 6 La. 169), and which are claimed to be analogous to the case at bar. The situation of the car involved in the present case was unlike not only that of any car whose seizure was under consideration in any of the cases cited, but also that of the instrumentalities employed in the carriage of the United States mails whose attachment provoked the rule announced in the Harmon and the Parker Cases, respectively. The car was not empty or idle, or waiting for return shipment, or unnecessarily deThe attachment levied on plaintiff's layed in the course of business, or in process car directly stopped, though temporarily, of loading or unloading, or awaiting the the delivery, and required the transshipment commencement of a journey or the next trip. of interstate passengers. It not merely inIt had already entered upon a lengthy and cidentally and indirectly affected interstate continuous journey, bearing interstate pas-commerce, but bore upon it so directly as to sengers who were in nowise connected with or concerned in the controversy between Gillett and the plaintiff, and who had acquired by purchase from the railroad company and the plaintiff for the whole of their respective journeys the valuable contractual rights of transportation and sleeping car accommodations on that particular car. The switching of it from one train to another was an essential part of its journey, and while being so switched it was still in use in interstate commerce. The temporary suspension of its movements was but an incident in, and did not take it out of, the course of its transportation, or impart to it a local character only. Having started with its load of human freight on its ultimate passage from Columbus to amount to its regulation. The state law, |