Chiuchiolo v. New England Whole-Sale Tailors

• Decision Date: 06 May 1930
• Parties: CHIUCHIOLO v. NEW ENGLAND WHOLE-SALE TAILORS (two cases).
• Court: New Hampshire Supreme Court

150 A. 540

CHIUCHIOLO

v. NEW ENGLAND WHOLE-SALE TAILORS (two cases).

Supreme Court of New Hampshire. Merrimack.

May 6, 1930.

Transferred from Superior Court, Merrimack County; Matthews, Judge.

Two actions, one by Betty Chiuchiolo and the other by Antonio Chiuchiolo, against the New England Wholesale Tailors. Verdicts for plaintiffs, and actions transferred to the Supreme Court.

New trial.

Actions by an employee, called the plaintiff, and her husband, for negligence. She worked in a room about ten feet from a gas-heated boiler, with her back facing it. The boiler carried a pressure of from 70 to 80 pounds. An explosion took place; the glass of the pressure gauge breaking with an accompanying escape of steam. The explosion made a report like the bursting of a gun, and the plaintiff was frightened, with resulting injury to her health. The glass had broken in the same manner previously a number of times, but the plaintiff had no experience or knowledge about these occasions. At the time of the explosion four or five other women were at work in the room, and it frightened all of them. The plaintiff's health was good.

The defendant excepted to the denial of its motions for directed verdicts and to the charge, and, the jury's verdicts being for the plaintiffs, the court (Matthews, J.) transferred the actions.

Robert W. Upton and Joseph C. Donovan, both of Concord, for plaintiffs.

Demond, Woodworth, Sulloway & Rogers, and Jonathan Piper, all of Concord, for defendant.

ALLEN. J.

I. In respect to the defendant's negligence, one claim it makes is that it had no duty to anticipate an explosion of the gauge as a cause of injury to a person of normal health. It relies on the harmless outcome of previous explosions, and asserts that due care neither demanded inquiry nor would have disclosed any danger to be guarded against, if inquiry had been made. It admits that it is commonly known that sudden noise may startle one, but denies that foresight will tell that the noise is likely to frighten one with serious consequences. And it is not questioned that, if the danger had been anticipated, there were practical ways to obviate it. The removal of the boiler to another room or its inclosure by a partition may be mentioned as one remedy which would have been feasible and an effective removal of the danger.

The inquiry is therefore limited to the sufficiency of the evidence from which the duty to anticipate might be found. The defendant's argument generalizes persons and situations, and makes but little allowance for differences of degree and mental state. Much depends upon the environment and state of mind of the injured person. The range from things calculated merely to startle to things tending to inspire terror is wide, and differences in knowledge, warning, and mental balance mean differences of response to such things among those encountering them. Tp consider the illustrations suggested by the defendant, if the noise from the backfire of an automobile or from the blowout of a tire is not to be anticipated as likely to cause substantial disturbance, it is because it is such a common and well-understood occurrence as to have no sufficient tendency to unduly alarm one, and it does not furnish occasion for thought about it. If a revolver fired in a theater as an incident of the play is in keeping with the dramatics of the performance so as not to be out of order, it is an event of exciting entertainment which one generally goes prepared for. The hearer is not wholly off guard or likely to apprehend injury from it. The noise of a blowout of a fuse on an electric car, if it by itself may not be regarded as likely to be a frightening disturbance, yet if accompanied by a cloud of smoke, would seem more doubtfully a matter not to be guarded against. In Lord v. Railway, 74 N. H. 295, 67 A. 639, the blowout was accompanied by a sheet of flame, and the finding of a duty to anticipate against its effect on a passenger was upheld. While the passenger's action was not so much taken from fright as to escape injury, the same conduct inspired by fright might have been found a probable thing to have foreseen.

The noise here was sudden, loud, without warning, and accompanied by escaping steam from a boiler in the room where the plaintiff worked and not over ten feet from her. It is fairly an inquiry of fact, and not a matter of law, whether the exercise of care would have disclosed some tendency of an explosion of the gauge to inspire fright in the plaintiff with serious results to her, even if she was a woman in good health.

It seems to be claimed that the plaintiff was frightened only by the noise of the breaking of the glass of the gauge, but it may well be found that the noise and sight of the escaping steam combined with the breaking glass to produce the fright. The plaintiff's daze would permit the inference that she did not clearly and fully recall all the details of the affair, and it is natural to conclude that it was not the breaking glass alone that gave her her fright. The escaping steam findably contributed as a factor in causing her fright.

So far as fright alone is concerned, it may be noted that upon the explosion the other women and the manager who were in the room all ran from it in their alarm. And, as to the consequences of fright, it is well known that women in good health are varyingly affected by fright-producing occurrences. Ordinarily, susceptibility of temperament and an emotional nature are personal characteristics rather than tests of health, and what may have negligible effect on one may affect another injuriously in high degree.

If the defendant on careful thought would have come to the conclusion that among the help there might be one or more who were likely to be seriously affected through fright from such an explosion, then its failure to use such thought was a failure of its duty to anticipate. The evidence that the gauge had exploded ten or twelve times during a period of four years preceding the occasion in question was sufficient to warrant the inference that the defendant had notice of its tendency to explode and the consequent requirement to give care in considering the probable results of an explosion. That no such trouble had followed from previous explosions does not conclusively show that it was due care to pay no attention to future probabilities. And, if, upon anticipation and consideration of the likelihood of such consequences, a careful employer would have taken precaution to avoid the occurrence, then the defendant's negligence would be established.

This is only an application of the test of duty to take care when the probable chances of injury are great enough to lead the ordinary man in the defendant's place to take measures to lessen or avoid the chances. When declaration is made that "physical suffering is not the probable or natural consequence of fright, in the case of a person of ordinary physical and mental vigor" (Ward v. West Jersey & S. R. Co., 65 N. J. Law, 383. 385, 47 A. 561, 562), it does not meet the standard of precautionary duty as defined in this court. If the statement means that there is no probability of injurious consequences from fright, it assumes a matter of common knowledge which may not be accepted. If it means that the probabilities of such consequences are less than those that there will be no resulting injury, yet, if there is enough probability of resulting harm that ordinary care will seek to avoid the danger, the use of such care is required, although the balance of probabilities is against such consequences. Tullgren v. Amoskeag Mfg. Co., 82 N. H. 268, 276, 133 A. 4, 46 A. L. R. 380; Webster v. Seavey, 83 N. H. 60, 138 A. 541, 53 A. L. R. 1202; Osgood v. Railroad, 83 N. H. 262, 265, 141 A. 132.

II. In further claim against liability, the defendant invokes the rule disallowing recovery for the consequences of fright caused by negligence when there is no physical impact. The standing of the rule appears to be directly presented here for the first time. In Lord v. Railway, 74 N. H. 295, 67 A. 639, a blowout of a fuse on an electric car was followed by a sheet of flame which frightened a passenger, and to avoid which she jumped. Her effort to escape the danger of being burned was seemingly made regardless of her fright, and the case is not properly in point, although sometimes cited to such effect. In Kenney v. Wong Len, 81 N. H. 427, 128 A. 343, it is said in the opinion that, if immediate physical injury resulting from negligence and induced by some form of fright is shown, there may be recovery for subsequent injurious consequences. But this statement was unnecessary in the determination of the case, as the facts were of physical contact with a revolting object causing immediate suffering through the medium of the fright it produced, and the...