Stutz v. Chi. & N. W. Ry. Co.

• Decision Date: 04 December 1888
• Citation: 73 Wis. 147,40 N.W. 653
• Parties: STUTZ v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

73 Wis. 147

40 N.W. 653

STUTZ

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

December 4, 1888.

Appeal from Dodge county court.

Action by Bertha Stutz against the Chicago & Northwestern Railway Company to recover damages for injuries alleged to have been caused by the negligence of defendant's employes. Judgment for plaintiff, and defendant appeals.Jenkins, Winkler & Smith, for appellant.

J. E. Malone and E. P. Smith, for respondent.

TAYLOR, J.

This is an action for personal injury to the plaintiff, alleged to have been caused by the negligence of the railway company. The material facts in the case are as follows: On the evening of the 4th of March, 1886, the respondent and a Mrs. Kreuziger took passage, in the caboose of a freight train, from Juneau to Minnesota Junction. The junction is north of Juneau. When the train drew near to the junction, it stopped so that the caboose in which the plaintiff and her companion were riding stopped several hundred feet south of the depot platform. The night was dark, and the evidence tended to show, and the jury found, that the conductor of the train told the plaintiff and her companion that they must leave the car at that place; and, by leaving the car at that place, it was necessary for them to alight on the right-hand side of the car, and walk up, along a side track of the said road, several hundred feet, to reach the highway which they would take in going to their homes. This fact was well known to the conductor; and it was also well known to him that where the side track crossed said highway there was an open culvert across the track. Of this the plaintiff had no knowledge. The side track was raised above the surface of the ground, and was the only way for reaching the highwayfrom the place where they left the car. The plaintiff had some bundles in her hands, and, when she got off the train, proceeded up the side track, and fell into the culvert, and injured her knee. While in the cattle-guard, and struggling to extricate herself, the men in charge of the train switched some cars on the side track. She noticed the fact that cars were being placed on the side-track, and became greatly excited and frightened by their approach. The cars, however, did not come nearer than 100 feet of the cattle-guard, and the plaintiff extricated herself, and proceeded on her way home. For the injury resulting to her by being wrongfully directed to leave the car, and falling into the culvert, the plaintiff claims damages, alleging that the defendant company was negligent in directing her to leave the car at the place mentioned. Upon the trial in the county court, the jury found the material issues in favor of the plaintiff, and assessed her damages at $1,000. Upon the facts of the case, as found by the jury, there is no contention on the part of the learned counsel for the appellant that the plaintiff was not entitled to a verdict for some amount of damages. The errors relied upon for a reversal of the judgment are exceptions taken to the admission of evidence, to the instructions of the court to the jury, and a refusal to give instruction requested by the appellant.

It is insisted that it was error to permit the plaintiff to give the following evidence: “How long were you in there?” (meaning the culvert.) “Oh, I could not tell,--I was so full of fright; at last, I helped myself out.” “What were you frightened about?” Objected to; overruled; exception. Answer. “I was afraid the cars were switching back on me.” “How did you go home?” A. “Full of fright.” It is claimed by the learned counsel for the appellant that the plaintiff is not entitled to recover damages on account of the fright which she experienced by reason of the backing of the cars towards her upon the side track, and the refusal of the court to so charge was error. Upon the subject of damages, the trial judge instructed the jury as follows: “She is entitled to such amount of damages as, in your judgment, will compensate her for all the physical injuries directly resulting from the negligence complained of, as well as the mental suffering resulting therefrom. This does not include punitory damages, but does include such pain and suffering of body and mind as you find, from the evidence, she has suffered from the negligence of the defendant, and without her fault, and which is directly the result of such negligence. * * * If you find the plaintiff is entitled to recover, say, from all the evidence, how much will compensate her for all the injuries sustained,--the pain and suffering caused by the negligence complained of, if you so find; if you find it was the direct result thereof,” etc. “The plaintiff, if she is entitled to recover, is entitled to full compensatory damages for all the direct physical injury, as well as the mental suffering, you may find, from the evidence, resulted from the injury caused by the negligence complained of.” “By compensatory damages we mean such damages as, in your judgment, will be a reasonable compensation to the plaintiff for all the pains and suffering, in the past, resulting from the accident, and, also, any future suffering therefrom, which, from the evidence, you may find is reasonably certain to result from said injury.” These instructions were separately excepted to by the appellant. The appellant also requested the judge to instruct the jury as follows: “The plaintiff is not entitled to recover any damages on account of any fright which she experienced on account of the cars backing down towards her upon the side track.” This instruction was refused, and the appellant excepted. It is argued by the learned counsel for the appellant that the authorities are quite uniform in holding that no action can be maintained for mere negligence on the part of the defendant, unaccompanied by insult, oppression, or indignity, which causes fright or other mental emotion only, and which does not result in injury to the person or the health of the plaintiff. And he therefore insists that it was error to allow the plaintiff to testify that she was frightened by the approach of the backing cars when she was in the culvert and struggling to extricate herself therefrom; and he also insists that the perils and dangers of the situation in which she was placed by the negligent act of the defendant cannot be considered in awarding her damages. We agree with the general proposition of the learned counsel that for a mere negligent act only compensatory damages can be recovered, and that such compensatory damages ordinarily include only damages for such mental suffering as arises from the personal injury received; and we may admit, for the purposes of this case, that, when the only ground of action against the defendant is fright caused by the negligence of the defendant, which is not followed by any injury to the person or...