Boston v. Chesapeake & O. Ry. Co.

• Decision Date: 06 June 1945
• Docket Number: 28098.
• Citation: 61 N.E.2d 326,223 Ind. 425
• Court: Indiana Supreme Court
• Parties: BOSTON v. CHESAPEAKE & O. RY. CO.

61 N.E.2d 326

223 Ind. 425

BOSTON v. CHESAPEAKE & O. RY. CO.

No. 28098.

Supreme Court of Indiana

June 6, 1945

Appeal from Delaware Superior Court; Paul A Linnington, judge.

George P. Ryan, of Indianapolis, Clarence Benadum, of Municie, and Ross, McCord, Ice & Miller, of Indianapolis, for appellant.

Albert H. Cole, of Peru, and Warner, Clark & Warner, of Muncie for appellee.

O'MALLEY Judge.

The appellant filed this action against appellee to recover damages claimed to have been caused by the negligent acts of the appellee in backing a cut of railway cars across Brady Street in the City of Muncie, Indiana.

The complaint alleged that plaintiff looked both ways before proceeding over the crossing and that he heard no warning and saw no train approaching, but that while crossing the plaintiff was suddenly struck by the railroad cars being backed up by said defendant in a westerly direction.

There are then alleged five distinct acts of negligence, to-wit:

(a) Failure to have or display any light.

(b) Failure to give audible warning.

(c) Operating in a residential section at from thirty to thirty-five miles per hour.

(d) Failure to blow the whistle ninety feet from the crossing and failure to ring the bell.

(e) Failure to post a lookout.

It is further charged that because of the negligent acts, the train was backed against the automobile in which plaintiff was riding in such a manner that the train became hooked to the automobile; that the train continued to move in a westerly direction and dragged the automobile one hundred fifty feet that it kept grinding its way farther and farther into plaintiff's automobile; that by reason thereof plaintiff became rigid with terror and fear; that the fear increased and plaintiff believed he would be ground to death; that after said accident plaintiff was so affected by shock that he could not sleep; and that he finally, ten days later, collapsed at his work.

It is further alleged that said shock continues and is permanent; that he cannot eat or work and as a result thereof he has developed ulcers in his stomach.

This cause was submitted to trial before a jury and at the conclusion of the plaintiff's evidence a peremptory instruction was requested and given directing the jury to find for the defendant.

Overruling the motion for a new trial is the only error assigned. This raises two questions which are as follows:

1. That the verdict of the jury is contrary to law.

2. That the court erred in peremptorily instructing the jury to return a verdict for the appellee.

The appellant admits that there can be no recovery for fear, fright or shock, in the absence of a contemporaneous physical injury. But he says, the complaint alleged an injury, and there was evidence of a contemporaneous physical injury as shown by the testimony of the doctor that appellant was suffering from traumatic shock and evidence of appellant striking against the sides and top of the automobile. Then he asserts that since he is asking recovery for injuries caused by the shock, and not for the physical injuries received at the time of the accident, it was not necessary to prove the extent of the physical injuries received.

A peremptory instruction should be given only when the evidence is clearly insufficient to establish one or more of the facts essential to the plaintiff's right to a recovery. Ault v. Clark, 1916, 62 Ind.App. 55, 112 N.E. 843; Engle, Adm'r v. Director General of Railroads, 1922, 78 Ind.App. 547, 133 N.E. 138.

It is only where there is a total absence of evidence upon some essential issue, or where there is no conflict and the evidence is susceptible of but one inference and that against the party having the burden, that a peremptory instruction should be given. Purcell v. English, 1882, 86 Ind. 34, 44 Am.Rep. 255.

It is not disputed that a contemporaneous physical injury in necessary for one to recover for shock or fright. We believe, however, that this is merely a minimum requirement for maintaining the action; that the complete rule would add that before recovery can be had for mental injury, including every form of distress, brooding, or fright, it must appear to be the natural and direct result of the physical injury, and not merely a remote consequence thereof. Indianapolis St. R. Co. v. Ray, 1906, 167 Ind. 236, 78 N.E. 978.

However, it has been held that peril, agony, fright, or shock which accompanies an actual physical injury, is an element which the jury may consider in fixing damages. Union Traction Co. v. Alstadt, 1924, 195 Ind. 389, 143 N.E. 879.

In the case of Cleveland, etc., R. Co. v. Stewart, 1900, 24 Ind.App. 374, 56 N.E. 917, it was held that fright to one person occasioned by imminent danger and peril to another, cannot be made the basis for the recovery of damages.

It was said in the case of Kalen v. Terre Haute & Indianapolis Railroad Company, 1897, 18 Ind.App. 202, 213, 47 N.E. 694, 698, 63 Am.St.Rep. 343, that:

'It would seem that such injuries (fright and shock not accompanied by any physical injury) are among those which courts cannot remedy by means of any practicable methods at their command which can be applied generally so as to secure justice to both the plaintiffs and defendants, and so as best to subserve the interests of the community, whose instruments the courts are in the administration of justice. Such claims for redress seem to be outside the wise policy of the law.'

See Earle v. Porter, 1942, 112 Ind.App. 71, 40 N.E.2d 381; Huston, Appellant, v. Freemansburg Borough, 1905, 212 Pa. 548, 61 A. 1022, 3 L.R.A., N.S., 49; Davis v. Cleveland Ry. Co., 1939, 135 Ohio St. 401, 21...