Driscoll v. Gaffey

• Decision Date: 22 November 1910
• Citation: 92 N.E. 1010,207 Mass. 102
• Parties: DRISCOLL v. GAFFEY (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 102

92 N.E. 1010

DRISCOLL v. GAFFEY (two cases).

Supreme Judicial Court of Massachusetts, Essex.

November 22, 1910

COUNSEL

D. N Crowley, for plaintiffs.

Matthews Thompson & Spring, for defendant.

OPINION

HAMMOND J.

In the second of these two cases, which were tried together, the wife sues for compensation of injuries received through the negligent blasting of a ledge by the defendant, and in the first the husband sues to recover expenses incurred by him in the medical treatment and care of his wife on account of such injuries. In each case the jury found for the plaintiff; and both cases are before us upon the defendant's exceptions to the refusal of the court to give certain rulings requested by him, and to a certain part of the charge. The case of the wife will be first considered.

It is strongly urged by the defendant that there was no evidence of negligence in the method of blasting. But we think that the question whether the charge was covered or otherwise properly protected, and whether if it had been the rock would have been hurled to the plaintiff's house, were for the jury. Much of the defendant's brief is devoted to a discussion of the doctrine of res ipsa loquitur; and it is contended that the doctrine is not applicable to the circumstances of this case. We do not find upon the record that the presiding justice said it was. On the contrary, after speaking of the various respects in which the plaintiff charged negligence of the defendant, he proceeds in his charge as follows: 'You are to bear in mind--I again repeat it--that it is not * * * simply [for her] to say, why, here is a rock thrown, and we do not generally expect rocks to be thrown from a blast into a person's house, and now it is for the defendant to show that he was in the exercise of due care. * * * That is not the rule here. The throwing of the stone is conceded. The burden is upon the plaintiff to show you that the defendant was negligent in some of these ways or in all of them, that she, the plaintiff, has suggested. And in considering that question I again say to you you are not to take into account the results. You are in your mind's eye to go there onto the premises before anything is doen, before any accident has happened, you are to look over the situation there, you are to take into account what people of prudence engaged in this sort of business should do, and you are to say whether in all respects these people did do the things which persons in that situation, having regard to the surroundings, the possibilities of an accident--you are to say whether these people did all that a person ought to have been expected to do under the circumstances. And if you have any doubt as to whether the defendant did do all the things that he ought to have done under the circumstances there in the way of conducting that blast, if you have any doubt about it, you are to bear in mind that the burden is upon the plaintiff to satisfy you that he did not do it, and not upon him to satisfy you that he did do it.'

Here in plain language the jury were told that the burden of proving negligence of the defendant was upon the plaintiff, and that upon this question of negligence they were not to take into account the results of the blast, but on the contrary were to judge of the negligence by the situation just before the blast. This ex vi termini excludes the doctrine of res ipsa loquitur.

It is next urged by the defendant that there was no evidence of physical injury, but that on the contrary the illness of the plaintiff was due solely to fright. If that is so, then there can be no recovery. The law upon this subject is well settled in this state. 'We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and if this rule is to stand, we think it should also be held that there can be no recovery for such physical injury as may be caused solely by such mental disturbance, where there is no injury to the person from without.' Allen, J., in Spade v. Lynn & Boston R. R., 168 Mass. 285, 290, 47 N.E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393. But as said by Holmes, C.J., in Homans v. Boston Elev. Ry., 180 Mass. 456, 457, 62 N.E. 737, 57 L. R. A. 291, 91 Am. St. Rep. 324, the exemption from damages of this kind 'is an arbitrary exception based upon a motion of what is practicable.' Where, however, the fright or mental disturbance is accompanied as a result of the same accident by physical injury 'from without,' then in the damages to be assessed there should be included not only those directly due to the injury from without but also these attributable to the mental shock or disturbance. And it is not necessary that the physical injury from without should be indicated upon the surface of the body by a bruise or otherwise. Berard v. Boston & Albany R. R., 177 Mass. 179, 58 N.E. 586; Steverman v. Boston Elev. Ry., 205 Mass. 508, 91 N.E. 919, and cases cited. An internal injury caused by a blow from without is none the less an injury from the fact that it is wholly internal, or indeed from the fact that its true nature cannot be accurately diagnosed except by a post mortem examination.

As to the injury from without, the plaintiff testified as follows 'I had been to the pantry to get a light lunch for the children, had left there and gone to the closet. I was just coming from...