257 N.Y. 231, Comstock v. Wilson

Citation257 N.Y. 231
Party NameComstock v. Wilson
Case DateJuly 15, 1931
CourtNew York Court of Appeals

Page 231

257 N.Y. 231

JOHN M. COMSTOCK, as Executor of ELLA M. COMSTOCK, Deceased, Respondent,

v.

HELEN M. WILSON, Appellant.

New York Court of Appeal

July 15, 1931

Argued May 20, 1931.

Page 232

COUNSEL

John W. Jordan, Harold R. Medina and Nicholas J. Weldgen for appellant. The refusal to charge as requested was erroneous. (Mitchell v. Rochester R. R. Co., 151 N.Y. 107; Victorian Railways Commrs. v. Coultas, 13 A. C. 222; Tracy v. Hotel Wellington Corp., 175 N.Y.S. 100; 188 A.D. 923; Jones v. Brooklyn Heights R. R. Co., 23 A.D. 141; Newton v. N.Y. N. H. & H. R. R. Co., 106 A.D. 415; Powell v. Hudson Valley R. Co., 88 A.D. 133; Lofink v. Interborough Rapid Transit Co., 102 A.D. 275; Hack v. Dady, 134 A.D. 253; 142 A.D. 510; Cohn v. Ansonia Realty Co., 162 A.D. 791.)

Carroll M. Roberts and Timothy J. Nighan for respondent. The right of the plaintiff to recover is amply sustained. (Pugh v. London, Brighton & South Coast Ry. Co., [1896] 2 Q. B. 248; Bell v. Great Northern Ry. Co., 26 L. R. Ir. 428; Dulieu v. White & Sons, [1901] 2 K. B. 669; Newton v. N.Y. N. H. & H. R. R. Co., 106 App.

Page 233

Div. 415; Cohn v. Ansonia Realty Co., 162 A.D. 791; Mundy v. Levy Bros. Realty Co., 184 A.D. 467; O'Brien v. Moss, 220 A.D. 464; Maloney v. Knickerbocker Ice Co., 229 A.D. 317; Schachter v. Interborough R. T. Co., 70 Misc. 558; 146 A.D. 139; Pareti v. New York Rys. Co., 172 N.Y.S. 388; Matter of Thompson v. City of Binhamton, 218 A.D. 451; Pickerell v. Schumacher, 215 A.D. 745; 242 N.Y. 577; Smith v. British & North American Royal Mail Steam Packet Co., 86 N.Y. 408; Carroll v. New York Pie Banking Co., 215 A.D. 240; Sider v. Reid Ice Cream Co., 125 Misc. 835; Beck v. Libraro, 220 A.D. 547; Spade v. Lynn & Boston R. R. Co., 168 Mass. 285; Conley v. United Drug Co., 218 Mass. 238; Clemm v. Atchison, Topeka & Santa Fe Ry. Co., 126 Kan. 181; Baltimore & Ohio R. R. Co., v. Harris, 121 Md. 254; Morey v. Lake Superior Terminal & Transfer Co., 125 Wis. 148; Mollman v. Light & Power Co., 206 Mo.App. 253; Chiuchiolo v. New England Wholesale Tailors, 150 A. 540.)

LEHMAN, J.

Plaintiff's automobile, in which the plaintiff's testatrix was a passenger, came into collision with an automobile operated by the defendant. The collision caused some noise or 'grating sound.' The left fender of plaintiff's car was loosened from the running board. The plaintiff's testatrix stepped from the automobile and started to write down the defendant's name and license number. While doing so, she fainted and fell to the sidewalk, fracturing her skull. All this occurred within a few minutes after the accident. She lived about twenty minutes after the fall. The plaintiff, claiming that the death of his testatrix was the result of defendant's negligence, has recovered judgment for $5, 000 against her.

The trial judge submitted to the jury, as a question of fact, whether the alleged negligence of the defendant was the proximate cause of the death of plaintiff's testatrix. He refused the defendant's request to charge that

Page 234

'if the Jury find that the deceased at the time of the collision sustained only shock or fright, without physical injury, they must find for the defendant.' The defendant appealed to the Appellate Division from an order denying her motion for a new trial, and the Appellate Division in granting leave to appeal from its order of affirmance has certified the question whether it was error for the trial court to refuse the defendant's request to charge. No other question may be reviewed upon this appeal.

In the case of Mitchell v. Rochester Ry. Co. (151 N.Y. 107) this court stated: 'No recovery can be had for injuries sustained by fright occasioned by the negligence of another, where there is no immediate personal injury' (p. 110). There, while the plaintiff was standing upon a crosswalk, awaiting an opportunity to board one of the defendant's cars which had stopped there, a team attached to another horse car of the defendant, coming down the street, turned to the right and came so close to the plaintiff that she stood between the horses' heads when they were stopped. From fright and excitement, caused by the approach and proximity of the team, she became unconscious, and the result was a miscarriage and consequent illness. Recovery was denied to her on the ground that 'assuming that fright cannot form the basis of an action, it is obvious that no recovery can be had for injuries resulting therefrom' (p. 109). The appellant maintains upon this appeal that it was error, under the authority of that case, to refuse her request to charge.

That case has been much discussed and frequently criticised by legal scholars. (See Throckmorton, 'Damages for Fright, ' 34 Harvard Law Review, 260; Wilson, 'The New York Rule as to Nervous Shock, ' 11 Cornell Law Quarterly, 512.) Judicial authority supports its conclusions in some jurisdictions. Elsewhere the courts have reached other conclusions. Its conclusions cannot be tested by pure logic. The court recognized that its views

Page 235

of public policy to some extent dictated its decision. In fixing the limits of legal liability, such considerations may be given due weight. Only for consequences which follow from an infraction of a duty, to the injured party, from an invasion of his legal rights, is legal liability imposed. Even then legal liability does not extend beyond 'proximate' consequences. Practical considerations must at times determine the bounds of correlative rights and duties as well as the point beyond which the courts will decline to trace causal connection.

'The question of liability is always anterior to the question of the measure of consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort.' (Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 346, per CARDOZO, Ch. J.) In deciding that no action lies for fright and, therefore, no action for the consequences of fright, the court was dealing with the question of liability rather than the measure of consequences...

To continue reading

Request your trial
63 practice notes
  • 179 S.W.2d 151 (Ark. 1944), 4-7318, Chicago, Rock Island & Pacific Railway Co. v. Caple
    • United States
    • Arkansas Supreme Court of Arkansas
    • April 3, 1944
    ...frightened and faints and is injured in falling, there may be a recovery for the injury resulting from the fright. See Comstock v. Wilson, 257 N.Y. 231, 177 N.E. 431, 76 A. L. R. 676, and see annotation in 11 A. L. R. 1119, 40 A. L. R. 983 and 76 A. L. R. 681. But in the case at bar there i......
  • 21 A.2d 402 (Conn. 1941), Orlo v. Connecticut Co.
    • United States
    • Connecticut Supreme Court of Connecticut
    • July 22, 1941
    ...a recovery in such situations. How far the courts have gone in applying the rule is illustrated by the case of Comstock v. Wilson, 257 N.Y. 231, 177 N.E. 431, 76 A.L.R. 676. The plaintiff in that case was in an automobile collision; after it was over she stepped from the automobile and star......
  • 179 A.D.2d 79, Ferrara v. Bernstein
    • United States
    • New York New York Supreme Court Appelate Division First Department
    • April 2, 1992
    ...then no recovery could be allowed for its consequences. The logic behind this conclusion was later questioned in Comstock v. Wilson, 257 N.Y. 231, 177 N.E. 431, but the Comstock court supported the public policy basis of the ruling. Id. at 234-35, 177 N.E. 431. [582 N.Y.S.2d 680] In Battall......
  • 2 Misc.2d 348, Standard Acc. Ins. Co. v. Newman
    • United States
    • February 24, 1944
    ...to the contrary. (Mitchell v. Rochester Ry. Co., 151 N.Y. 107; Spade v. Lynn & Boston R. R. Co., 172 Mass. 488; Comstock v. Wilson, 257 N.Y. 231.) While it is clear that a negligence action for a bodily injury is different from an action for a wrongful death, it is equally clear that th......
  • Request a trial to view additional results
63 cases
  • 179 S.W.2d 151 (Ark. 1944), 4-7318, Chicago, Rock Island & Pacific Railway Co. v. Caple
    • United States
    • Arkansas Supreme Court of Arkansas
    • April 3, 1944
    ...frightened and faints and is injured in falling, there may be a recovery for the injury resulting from the fright. See Comstock v. Wilson, 257 N.Y. 231, 177 N.E. 431, 76 A. L. R. 676, and see annotation in 11 A. L. R. 1119, 40 A. L. R. 983 and 76 A. L. R. 681. But in the case at bar there i......
  • 21 A.2d 402 (Conn. 1941), Orlo v. Connecticut Co.
    • United States
    • Connecticut Supreme Court of Connecticut
    • July 22, 1941
    ...a recovery in such situations. How far the courts have gone in applying the rule is illustrated by the case of Comstock v. Wilson, 257 N.Y. 231, 177 N.E. 431, 76 A.L.R. 676. The plaintiff in that case was in an automobile collision; after it was over she stepped from the automobile and star......
  • 179 A.D.2d 79, Ferrara v. Bernstein
    • United States
    • New York New York Supreme Court Appelate Division First Department
    • April 2, 1992
    ...then no recovery could be allowed for its consequences. The logic behind this conclusion was later questioned in Comstock v. Wilson, 257 N.Y. 231, 177 N.E. 431, but the Comstock court supported the public policy basis of the ruling. Id. at 234-35, 177 N.E. 431. [582 N.Y.S.2d 680] In Battall......
  • 2 Misc.2d 348, Standard Acc. Ins. Co. v. Newman
    • United States
    • February 24, 1944
    ...to the contrary. (Mitchell v. Rochester Ry. Co., 151 N.Y. 107; Spade v. Lynn & Boston R. R. Co., 172 Mass. 488; Comstock v. Wilson, 257 N.Y. 231.) While it is clear that a negligence action for a bodily injury is different from an action for a wrongful death, it is equally clear that th......
  • Request a trial to view additional results