21 A.2d 402 | Conn. | 1941
The plaintiff brought this action against the named defendant and the town of West Haven to recover damages he claimed to have suffered by reason of the negligence of the named defendant and the maintenance of a nuisance by it and the defendant town. The jury rendered a verdict for the defendants and from the judgment entered thereon the plaintiff has appealed, claiming errors in the change. He was a passenger in an automobile which was following a trolley car of the named defendant. Due to the claimed negligence of the operator of the trolley car, its pole came in contact with the trolley *233 wire and other wires, causing the former to break. The ends of this wire were charged with electricity. One struck the top of the automobile which as it proceeded came in contact with the other. The driver of the automobile stepped to the ground, received an electric shock and was thrown to the highway; his clothing was scorched and burned and he received physical injuries. The plaintiff continued to sit in the automobile, with the wires flashing, spitting and hissing about it. He claimed to have proved that he received sparks from the electricity, but there were no burns or marks on his body from it. He also claimed that he suffered nervous shock and severe fright, causing him to shake and tremble, that he was confined in a hospital about a month, that a condition of diabetes and arteriosclerosis from which he had previously suffered was aggravated and that he continued to be disabled and under medical attention until the trial, nearly a year after the accident.
The trial court instructed the jury that there could be no recovery of damages due to fright alone unaccompanied by physical injury; that this meant an injury of a traumatic nature from the application of some outward force; that it would not include "some perspiration of the body or some heart disturbance or some nervous disturbance"; but that, even though the contemporaneous physical injury was slight, there could be a recovery for a serious mental, nervous or other condition which resulted. The court submitted to the jury an interrogatory asking whether the plaintiff received an electrical shock. After they had been deliberating for some time and had returned to the court room, they asked the court what would constitute a physical injury if the plaintiff did not receive an electrical shock. The trial court, in substance, repeated the charge it had previously given. In connection *234 with their verdict, the jury answered the interrogatory in the negative.
The plaintiff assigns error in this portion of the charge. Its gist was that in order to recover the plaintiff must prove a contemporaneous injury of a traumatic nature, though it be slight. The three cases in which we have had occasion to consider a recovery for the results of fright or nervous shock all fall within this statement. Block v. Pascucci,
It may be granted that, as pointed out in some of the authorities hereafter cited, there can be no recovery for mere fright, nervous shock or other mental disturbance where there is no outward manifestation of their effects, upon the very logical ground that the law has never regarded these mental states standing alone as a legal injury. Nor are we now concerned with a situation where the party claiming to recover was not within the range of ordinary physical danger from the negligent conduct claimed. The plaintiff is seeking to recover for elements of damage which, if there had been a contemporaneous bodily injury, would be allowed as matter of course. There is great disagreement in the cases upon the question whether there can be a recovery for injuries which can be traced to the claimed negligent conduct through fright or nervous shock where there is no such injury. The decisions are gathered and reviewed in the notes 11 A. L. R. 1134, 40 A. L. R. 983, 76 A. L. R. 681, 98 A. L. R. 402, and are discussed and the underlying principles are considered in articles by very able commentators of which perhaps the most helpful are *236 Bohlen, Studies in the Law of Torts, 252; Throckmorton, Damages for Fright, 34 Harvard Law Review, 260; 1 Sutherland, Damages (4th Ed.) 21 ff; and Pollock on Torts (14th Ed.) 38. Examination of the cases discloses that there has been a definite tendency toward the enlargement of the right of recovery for damages resulting from fright or nervous shock.
Some of the reasons given for denying recovery, particularly in the older cases, have little if any weight now. One is the difficulty in tracing with any certainty the resulting injury back through the fright or nervous shock to the claimed negligent conduct. The steadily increasing advance in medical knowledge has tended to minimize this difficulty. It is a commentary upon it that in this state ever since the case of Seger v. Town of Barkhamsted,
It has been held in some cases that there can be no recovery for injuries following upon fright or nervous shock because the production of such emotional disturbance is not the basis upon which negligence can be predicated. The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. Botticelli v. Winters,
It is also true that it cannot be said that such injuries are necessarily too remote in the chain of causation to permit recovery. There are cases where that would be so; see St. Martin v. New York, N. H. H. R. Co.,
It is, then, well within the logic of the law that where results which are regarded as proper elements of recovery as a consequence of physical injury are caused by fright or nervous shock due to negligence, recovery should be permitted. Undoubtedly one, if not the principal, reason why recovery has been denied in cases of this nature is the feeling that fright and similar emotional disturbances are subjective states of the mind, difficult properly to evaluate and of such a nature that proof by the party claiming the injury is too easy and disproof by the party sought to be charged is too difficult, to make it safe as matter of policy for the law to deal with them, and that, therefore, to permit recovery in such cases would open a wide field for fictitious claims with which the law cannot satisfactorily deal. The refusal to allow a recovery in such a case is not rested on "a logical deduction *239
from the general principles of liability in tort but . . . [is] a limitation of those principles upon purely practical grounds"; Holmes, C. J., in Smith v. Postal Telegraph Co.,
Our conclusion is that where it is proven that negligence proximately caused fright or shock in one who is within the range of ordinary physical danger from that negligence, and this in turn produced injuries such as would be elements of damage had a bodily injury been suffered, the injured party is entitled to recover. This position is supported by the commentators to whose writings we have referred. It is that approved in the Restatement, although with the caveat previously referred to, 2 Torts 436. The English courts have finally come to it. Pollock, Torts (14th Ed.) 39. Among a considerable number of American cases supporting *240
such a conclusion are the following: Chiuchiolo v. New England Wholesale Tailors,
The charge of the trial court was erroneous. We add, however, that the nature of the evidence upon which proof necessary to a recovery must rest in cases of this nature and the opportunity afforded for fictitious or greatly exaggerated claims, require that the trier should use caution and scrutinize the evidence with care before granting a recovery; and, if the case is tried to the jury, that the court should instruct them to use a like caution. Pollock, op. cit. p. 40. The situation is in some respects similar to one where a claim is made by one member of a family to recover for services rendered another member against the estate of the latter; and certainly as cautious an approach should be adopted; the claim should be "carefully *241
scanned and found established only upon clear and satisfactory proof. . . ." Howd v. MacGregor,
The only ground of liability on the part of the defendant town alleged in the complaint was that it created and maintained a nuisance, in that it had installed and maintained a traffic light in such close proximity to the trolley wires of the defendant company that the trolley poles of passing trolleys came in contact with the electric wires to the light, creating a danger to persons lawfully using the highways. Apart from the method of the original installation of the traffic light, the plaintiff claimed to have proved that in the summer season the trolley wires expanded; when trolleys passed, the trolley pole pushed the wire up so that it touched the cable to the traffic light; that the constant rubbing together of the wires wore through the insulation of the cable; and that the maintenance of the cable so close to the trolley wires created a condition the natural tendency of which was to cause danger. The plaintiff assigns error in the part of the charge dealing with the defendants' liability on the ground of nuisance without specifying in what particulars the error consisted. This assignment imposes no duty upon us to search out possible errors not specifically assigned. Knox v. Binkoski,
A nuisance to be a basis of recovery must have proximately *242
caused the injuries suffered; Beauton v. Connecticut L. P. Co.,
The only liability claimed against the town was on the ground of nuisance; the answer to the interrogatory established that no nuisance was created by the installation of the traffic light; and as matter of law none arose out of the subsequent change in conditions *243 as regards such a harm as that suffered by the plaintiff. There is no reason for further proceedings against the defendant town.
The judgment in favor of the defendant town is affirmed; that in favor of the defendant company is set aside and a new trial ordered as to it.
In this opinion the other judges concurred.