143 N.C. 398 | N.C. | 1906
The defendant excepted to the issues submitted by the Court and tendered the following: 1. Were the injuries alleged in the complaint the immediate, natural and necessary consequences of the alleged blasting? 2. Were the alleged injuries to the plaintiff such as might naturally and probably occur from the alleged negligence, and were they such as should have been in contemplation of the defendant with reasonable certainty? 3. Was the alleged physical injury the' natural and proximate result of the alleged fright?
The issues submitted by the Court presented every phase of the case and are such as arise upon the pleadings, and are approved by precedent as appropriate in such cases. The defendant was given the opportunity to present every defense he had and every proposition of law and fact embraced in the issues tendered by him. Not only was he given a fair opportunity to present his views of the law and facts, but the record shows that he did so present them. The issues submitted are also a sufficient basis’ for the judgment rendered. Wright v. Cotten, 140 N. C., 1; Wilson v. Cotton Mills, 140 N. C., 52.
The chief contention made by the learned counsel for the defendant in his argument is that in no view of the evidence
It is contended: 1. That the evidence discloses no negligent act. 2. That the defendant’s agents could not have reasonably foreseen the consequences of their acts. 3./ That the injury complained of by the wife was the result of fright only, for which no recovery can be had.
The plaintiffs offered evidence tending to prove that defendant was blasting rock with dynamite on the outskirts of the city of Asheville about 100 yards from Charlotte Street and 115 yards from plaintiff’s residence, and in close proximity to other houses. A rock from one of the blasts, weighing about 20 pounds, crashed through a portion of plaintiffs’ residence. It was further in evidence that defendant’s foreman was not an expert blaster, and that a part of the time the blasting was going on he was absent, and that his assistants had but little experience. It was in evidence that the blasts were fired off without being properly “smothered,” and that “smothering” is a safe method usually employed in such operations, and that had it been properly done on this occasion the injury to plaintiffs’ residence could not well have resulted.
We think the evidence of negligence amply sufficient to have been submitted to the jury. Blackwell v. Railroad, 111 N. C., 151. We think, furthermore, that a man of ordinary prudence should have foreseen the probable consequences of blasting with dynamite in such a neighborhood without properly smothering the blast. Persons using such an inflammable and powerful instrumentality as dynamite are charged with knowledge of its probable consequences which they could
The authorities seem to agree that if the tort is wilful and not merely negligent, the wrong-doer is liable for such physical injuries as may proximately result, whether he could have foreseen them or not. We do not base our decision upon any evidence of a wilful wrong, for there is none. The defendant was engaged in a lawful act, and if prosecuted with due care he would not be liable; and due care means in a case of this sort a high degree of care. We bear in mind the distinction between wilful wrong-doing. and those consequences flowing from simple negligence, so clearly stated by Mr. Justice Walicer in Drum v. Miller, 135 N. C., 208: “In the one case hp is presumed to intend the consequences of his unlawful act, but in the other, while the act is lawful, it must be performed in a careful manner, otherwise it becomes unlawful, if a prudent man in the exercise of proper care can foresee that it will naturally or probably cause injury to another, though it is not necessary that the evil result should be, in form, foreseen.”
It has been argued in this case by defendant’s counsel with much earnestness and ability, backed by most respectable authority, that the feme plaintiff’s injuries, if she sustained any, were the result of fright without any contemporaneous physical injury, and that she cannot recover for them. This brings us to the consideration of a question concerning which there is much conflict among the authorities. We will not undertake to either reconcile or review them. All the courts agree that mere fright, unaccompanied or followed by physical injury, cannot be considered as an element of damage. In a very exhaustive note by Judge Freeman to Gulf Railway Co. v. Hayter, 77 Am. St. Rep., 860, all the authorities are collected. But where the fright occasions physical injury, not contemporaneous with it, but directly traceable to it, the courts are hopelessly divided. The testimony offered in behalf of the plaintiffs tends to prove that the wife was lying on her bed heavy with child at the moment the rock crashed through the roof; that although it did not strike her, it greatly shocked her nervous system and nearly caused a miscarriage, and that she has never recovered from the effects of it. If this testimony is believed, the injury to the wife was a physical injury resulting from shock and fright and directly traceable to it. There is much conflict of evidence, but plaintiffs’ testimony tends to prove that had not the rock crashed through the roof she would not have endured the nervous physical pain and suffering which has followed. The nerves are as much a part of the physical system as the limbs, and in some persons are
It is contended that the husband has sustained no injury, and as to him the motion to nonsuit should have been allowed. It seems to be well settled that where the injury to the wife is such that the husband receives a separate loss or damage, as where he is put to expense, -or is deprived of the society or the services of his wife, he is entitled to recover therefor, and he may sue in his own name. 15 A. and E. Encyc. Law (2 Ed.), 861, and cases cited. In this ease there is no evidence of an outlay of money in medical bills and other actual expenses, and the' Court so charged the jury and directed them to allow nothing on that account. Ilis Honor also correctly instructed the jury to allow nothing because of any mental suffering upon the part of the husband. There was, however, evidence as to the loss of the services of the wife, and that the injury inflicted was of such a character as to deprive the husband of her society, services, aid and comfort. The Court further charged that if the injuries are permanent the husband could also recover such sum as will be a fair compensation for the future diminished capacity to labor on the part of the wife. This instruction we think is correct and supported by authority. 6 Thompson’s Negligence, secs. 7341, 7342. It is impossible to lay down a rule by which the value of her services and the loss of the wife’s society can be exactly measured in dollars and cents. All the Judge can do is to direct the jury to allow such reasonable sum as will fairly compensate the husband therefor under all the circumstances of the case.
We have carefully examined all the exceptions in the record, although we comment only on such as we think
No Error.