Jones v. Brooklyn Heights Railroad

48 N.Y.S. 914 | N.Y. App. Div. | 1897

Hatch, J.:

The plaintiff testified that the globe which fell struck her upon the temple and exploded with a loud report. The metal part then fell, striking her upon the abdomen with sufficient force to cause the flesh to become discolored. Respecting the latter injury the plaintiff was corroborated by a witness, to whom she exhibited her person three days after the injury, who testified to the existence at that time of a large bruise upon the abdomen. It was undisputed that the globe fell and inflicted a bruise upon the temple. The claim that there was injury to the-abdomen is denied. The appellant supports this claim by the testimony of the physician who was called to attend the plaintiff upon the day of the injury. He testified that he examined her person and that the only injury he found or observed was upon the temple. It is further insisted that the globe which fell was a small incandescent light, composed of thin glass and a small metal band ; that,, considering its character and the distance it fell, it was entirely insufficient to inflict the injury upon the abdomen claimed to have been sustained. Upon this theory the appellant deduces the conclusion that there was no sufficient injury to occasion the miscarriage which followed, and that it must, there-, fore, necessarily have been the result of fright, for which no liability on the part of the defendant was created.

We do not think that this contention can be sustained. It is undisputed that an injury was received; that the plaintiff, at the time of its reception, was five months advanced in pregnancy ; that she was immediately taken ill, was confined 'to the house, and for the most time to the bed, and that she had a miscarriage three weeks thereafter. The physician who attended her testified that the cause of the miscarriage was shock produced by the injury. It was also testified by another physician, who saw the plaintiff shortly after the in jury, that she was then suffering from .shock, and that a ■ shock would proceed from a blow. Aside, therefore, from the claimed injury to the abdomen, there was sufficient evidence upon which the jury could find that the fall of the globe, and consequent injury to the temple, produced a shock' resulting in the miscarriage. The ease does not, therefore, fall within the doctrine of Mitchell v. Rochester Railway Co. (151 N. Y. 107). In that case there was no physical injury and no physical contact with the person of the plaintiff ; such injury as- was sustained arose solely from fright. The court held that mere fright, disassociated from physical injury, would not create a cause of action. The court so charged in the present case. An injury, however, sufficiently severe to produce a shock, or which, in fact, produces a shock, presents an entirely different question. Shock is not fright; the latter may be a producing cause of the former, and where it is the sole producing cause there can be no recovery; but when it is associated with actual injury it may be considered, and where the injury and the fright concur and result in producing shock, out of which arises damage, it is sufficient upon which to base a-recovery.

In Quinn v. Long Island R. R. Co. (34 Hun, 331) the plaintiff was caught under the wi'eck in a railroad accident. The court charged the jury: “ When the plaintiff was * * * confined between the engine and the car. * * * any danger of death, or anything of that kind then impending oyer him, undoubtedly increased his sufferings, .his mental agony, if not his physical pain, and he is entitled to compensation for that, not because he might have been killed, that not having occurred, but you can take into consideration his situation at that time, how painful, how trying it was. That is an element of damages, and he is entitled to compensation for that.” This charge was held to be a correct exposition of the law, and the decision was affirmed upon appeal. (S. C., 105 N. Y. 643.) The court upon the affirmance wrote no opinion, but the point that mental pain, anxiety and fear could not be considered as an element of damage was made in terms by the apj^ellant, and the court necessarily passed upon the question. (See bound Vol. 672, Court of Appeals cases, in the Brooklyn Law Library.)

In the present case, as we have observed, there was present the essential element of physicial injury, from which the jury were authorized to say that damage resulted, and the presence of fear as a concomitant element does not destroy the right of action, but may be considered as an element of damage. We arrive, therefore, at the conclusion that a recovery was authorized. But we are also of opinion that the damages are excessive, and should be reduced to the sum' of $1,800.

The exceptions require no extended consideration. It was within the province of a correct examination to inquire if a blow upon the abdomen would produce a miscarriage. It is proper as a preliminary to inquiry and application of the facts of the particular blow, its force and attendant circumstances. The fact that the inquiry was not followed.up by either party does not make it error, as the question was proper. We are not able to see that the defendant was prejudiced by the cross-examination of the conductor. Ho affirmative evidence was produced, and we do not think that it was so far improper as to make it reversible error.

The judgment should be modified by reducing the recovery as above suggested, and, as modified, it should be affirmed, -without costs to either party in this court.

All concurred, except Bartlett, J., who dissented solely on the question of reduction.

Judgment and order reversed, and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulates to reduce recovery of damages to $1,800, and -extra allowance proper-. tionately, in which event the judgment, as modified, is unanimously affirmed, without costs.