Berard v. Boston & A.R. Co.

• Decision Date: 28 November 1900
• Citation: 177 Mass. 179,58 N.E. 586
• Parties: BERARD v. BOSTON & A. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 179

58 N.E. 586

BERARD v. BOSTON & A. R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

November 28, 1900

COUNSEL

Webster

Thayer, H. W. Cobb, and F. A. Belisle, for plaintiff.

Frank P. Goulding, for defendant.

OPINION

HAMMOND J.

On this report the only question before us is whether the evidence would justify a finding by the jury that any physical injury except that caused by fright was done to the plaintiff. The plaintiff was driving in a 'low-down' milk wagon across a grade crossing on a public street in Worcester, when the horse which he was driving was struck by a rapidly moving railroad train and killed, and the wagon damolished. The plaintiff and his son saved themselves by jumping from the wagon when the train was close to the horse. The plaintiff landed upon his feet, and he was not hit by the train. He testified that when he jumped out he was so near the train, and the 'breeze was so hard,' that it 'kind of twisted' him half way around or more, and that he felt dizzy and nervous at the time. The accident occurred early in the morning, and the plaintiff testified that in the afternoon of the same day he went to bed, sent for a doctor, and was confined to the house about three weeks, and that during all that time he felt sick all through his body,--'kind of pains in [his] side and heart,' and that he 'was troubled with [his] water a few days after that.' There was also evidence tending to prove that he was a well man before the accident, but that since that time his heart has been affected, and he has been unable to attend to his business. The plaintiff called his physician, who testified that he had attended the plaintiff frequently, and that, in his judgment the cause of the plaintiff's trouble was a 'shock to the nervous system'; that the heart was weak, but that the witness could not find in the books any explanation of the cause of the weakness; that the trouble with the heart was functional, and not organic; and that he should judge the plaintiff to be about 45 or 50 years of age. It did not appear that there were any bruises or other external signs of injury upon the plaintiff's body. After he jumped, the first thought of the plaintiff was for his boy, who, he feared, might be dead, but upon looking around he discovered him a short distance away, crying. The evidence tended to show that the plaintiff and his son were compelled to jump hastily to save their lives, and that the plaintiff was frightened; and it may well be that a jury would be warranted in finding that to this fright may be attributed much the larger portion, if not all, of the physical injury from which the plaintiff has since suffered.

But we do not think that it can be said, as matter of law, that all the physical injury received by the plaintiff was caused by fright. He was about 45 or 50 years of age. The jury saw...