Freedman v. Eastern Massachusetts St. Ry. Co.

• Decision Date: 31 January 1938
• Citation: 12 N.E.2d 739,299 Mass. 246
• Parties: SADIE FREEDMAN v. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 246

12 N.E.2d 739

SADIE FREEDMAN v. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Bristol.

January 31, 1938

October 25, 1937.

Present: FIELD DONAHUE, LUMMUS, QUA, & DOLAN, JJ.

Negligence, Street railway, Motor vehicle, In use of way. Actionable Tort. Proximate Cause.

Evidence that a street railway car came in contact with a parked motor truck and that, while both operators by joint efforts were trying to extricate the vehicles so that one of them could proceed the truck struck the side of the car and broke a window warranted findings of negligence of both operators toward a passenger in the car injured thereby.

Evidence that a passenger on a street car strained a muscle in arising suddenly from his seat to escape danger apparently impending from the breaking of a window beside him warranted a finding of liability to the passenger on the part of those whose negligence caused the breaking of the window.

TWO ACTIONS OF TORT. Writs in the Second District Court of Bristol dated March 1, 1935.

On removal to the Superior Court the actions were tried together before Walsh J., who ordered verdicts for the defendants. The plaintiff alleged exceptions.

M. Entin, for the plaintiff, submitted a brief. A. E. Seagrave, for the defendant Eastern Massachusetts Street Railway Company.

H. S. R.

Buffinton & R. C. Westgate, for the defendant Fall River Gas Works Company, submitted a brief.

DOLAN, J. These are two actions of tort brought by the plaintiff for personal injuries alleged to have been sustained as a result of a collision of a street car of the defendant street railway company with a motor truck owned by the defendant gas works company. The cases were tried together to a jury. The trial judge directed a verdict for the defendant in each case.

In its aspect most favorable to the plaintiff the evidence may be summarized as follows: On October 22, 1934, the plaintiff was a passenger in the car of the defendant street railway company which was operated by an employee. The car was going north on North Main Street in the city of Fall River. The truck of the defendant gas works company was parked on the right side of the car "beside the curbing." The operator of the car, as he approached, saw the truck "pretty close to the curbing." The car stopped in contact with the corner of the truck. The truck driver tried to go by the car but could not get by. Then the operator of the car tried to proceed but could not. Then they both tried to go together but could not, and the truck came in contact with the side of the car, breaking the window opposite the seat behind that in which the plaintiff was seated. When the plaintiff heard the window break she jumped from her seat and twisted her shoulder. She was "scared and nervous." She felt pains in her right shoulder and neck but left the car and walked home. She telephoned to a doctor and on his advice placed an electric pad on her right shoulder and neck and went to bed. The next day she felt pain from the back of her head through her shoulder and arm. The plaintiff testified that she received medical treatments, and that she had never been nervous before the accident and was badly frightened when it took place. Each of the defendants contends that there was no evidence of negligence on its part. We are of opinion, however, that there was evidence for the jury in each case of the defendant's negligence, and that this issue should have been submitted to them with proper instructions. The instant cases are distinguishable in the facts from Stangy v. Boston Elevated Railway, 220 Mass. 414 .

The second contention of the defendants is that the plaintiff's injuries were due solely to fear; that she suffered no physical injuries from without to her person; and that she cannot recover under the rule of Spade v. Lynn & Boston Railroad, 168 Mass. 285 . In that case, at page 290, the court said: "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 injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without." We are of opinion that the principle just quoted is inapplicable to the facts in the case at bar. That principle has to do with the internal results of the operation of such disturbances as are described in the rule, where the injury is not directly caused by the defendant's negligence, but is caused solely by the effect of those disturbances upon the mind and body of the plaintiff. Correctly interpreted, a physical injury "from without" for which recovery may be had is one not solely the result of "fright, terror, alarm, anxiety, or distress of mind." There "can be no recovery for...