Cashin v. Northern Pac. Ry. Co.

• Decision Date: 18 January 1934
• Docket Number: 7168.
• Citation: 28 P.2d 862,96 Mont. 92
• Parties: CASHIN v. NORTHERN PAC. RY. CO.
• Court: Montana Supreme Court

28 P.2d 862

96 Mont. 92

CASHIN v. NORTHERN PAC. RY. CO.

No. 7168.

Supreme Court of Montana

January 18, 1934

Appeal from District Court, Silver Bow County; T. E. Downey, Judge.

Action by Mary E. Cashin against the Northern Pacific Railway Company. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Walker & Walker, of Butte, and Gunn, Rasch, Hall & Gunn, of Helena for appellant.

A. G Shone and H. L. Maury, both of Butte, for respondent.

MATTHEWS Justice.

Appeal by the defendant, the Northern Pacific Railway Company, from a judgment in favor of Mary E. Cashin, plaintiff.

Between Butte and Homestake, the main line of the Northern Pacific Railway is constructed along a steep mountain side strewn or set with large granite boulders which, with the winter frost and spring thaws, are apt to become loosened and a menace to traffic on the line. Each spring loosened boulders are broken up by blasting and removed from the mountain side. Prior to 1929, this plaintiff lived with her husband and children at a point but 400 feet from the railroad track and at the foot of the mountain; Robert Cashin, the husband, then purchased a tract of land a short distance away, and the family removed thereto. The dwelling house on this tract stands, with its rear toward the railroad, 984 feet distant and on an elevation 336 feet below that of the track. Once while the Cashins lived at the old location, and at least twice after they moved to their present home--all prior to 1932--blasting by the defendant on the mountain side caused the breaking of windows in their house, and in each instance a claim for the damage done was paid by the defendant company.

On May 31, 1932, a crew under the direction of defendant's roadmaster, without warning to the occupants of the Cashin premises, blasted a boulder lying on the mountain side some 25 feet from the track on the upper side and at an elevation of 12 feet above it, opposite the Cashin home, estimated to weigh 20 tons. The blasting was done by "bulldozing," the method theretofore employed by the company, and which consists of laying dynamite on top of the boulder, covering it, and exploding the charge. On this occasion the crew used a full 50-pound box of 40 per cent dynamite, the third largest amount ever used for any purpose at one time by the section foreman, who had been there employed for forty years; he does not say that either of the larger charges was used for blasting boulders.

Robert Cashin testified that, on settlement for a prior damage, he told N.W. Simmonds, the district claim agent for defendant, at Butte, that Mrs. Cashin was nervous and became scared by unexpected blasting, and that Simmonds told him that they would in the future be notified before any blasting was done; that after a blasting in 1930 he went to Simmonds and told him he was not "a man of his word." Simmonds denied that he had either of the conversations related.

At the time of the blasting on May 31, 1932, Mrs. Cashin was hanging up clothes at a point from 10 to 20 feet to the rear of her kitchen door. She testified that she heard the detonation and saw rocks falling about the yard; she raised her arms and felt pain between her shoulders and knew no more until some time later, when she regained consciousness in a chair in the house. Edward Grinrod, brother of Mrs. Cashin, testified that he was away from the house at the time, but returned a few minutes after the blast, when he found Mrs. Cashin "knocked completely unconscious"; he carried her into the house. He testified further that the glass in the kitchen door was broken and an irregular piece of granite was lying on the kitchen floor amidst broken glass; a bedroom window was also broken and glass scattered over the bed and floor.

Cashin testified that he found the rock in the kitchen and that "there was butter all over the floor and glass and rocks mixed with the butter." He testified that he reported the matter to Simmonds and told him that Mrs. Cashin was "knocked out." Simmonds offered to pay for the broken glass as the company had done theretofore.

Dr. J. L. McCarthy, of Butte, described Mrs. Cashin's condition as he found it shortly after the blasting and continuing thereafter as that of shattered nerves from shock comparable to that of shell-shocked veterans.

Mrs. Cashin testified that, while she had been nervous before and had been "troubled" by former blasts so that, at night, she was made nervous by the passage of the watchman's car on the track as indicating that another blast might be set off in the night, her present condition was due to the shock of this last blasting.

This action was instituted to recover actual and punitive damages for "severe and violent shock, both of body and mind," causing permanent impairment of plaintiff's health. Plaintiff's allegation of negligence is that "the defendant *** did negligently and wantonly and wilfully and intentionally, after notice given it of the danger of so doing and after promises not to do so *** set off and explode a large and violent amount of dynamite *** within *** 700 feet of thereabouts, of the residence of the plaintiff, and failed entirely to give warning to plaintiff and negligently failed to drill a hole for the blast and negligently failed to tamp material in on top of the same, and negligently laid said dynamite on top of the rock for blasting. ***"

The defendant interposed a general demurrer to the complaint, which was overruled, whereupon it answered generally admitting the blasting of the boulder "at a point about opposite the residence of said plaintiff," and that it did not drill holes or notify the plaintiff that blasting was to be done, and denied the remaining allegations.

As an affirmative defense, the defendant alleged its operation of the road on its right of way since 1889 and its right to do so; described the condition existing at the designated point and that "in order to protect the traveling public riding upon its trains and to maintain said track in a safe condition for the operation of trains thereon, it is necessary from time to time to remove some of these large granite boulders." It is then alleged that, in removing the instant boulder, "in order to avoid the throwing of rocks for great distances and possibly upon the premises of plaintiff, the defendant did not drill holes *** but placed dynamite on the surface of said boulder and covered the same with a heavy layer of dirt so as to crack and break said boulder without causing rock to be thrown any distance; that *** no rock was thrown or cast upon the premises of plaintiff; that said blasting was done in a careful and prudent manner, according to the custom usually followed by men experienced in handling of dynamite;" that, if the plaintiff was of a nervous temperament, likely to be frightened or disturbed by the noise, the defendant, its agents and servants, had no knowledge of the fact. Any new matter set up in the answer was met by a reply.

Trial was had in due course, resulting in a verdict for plaintiff for $1,250 actual, and $750 punitive, damages. Entry of judgment for $2,000 damages followed, from which judgment this appeal is taken.

The sufficiency of the complaint is challenged on the ground that there can be no recovery for a condition resulting merely from fright or shock, unaccompanied by contemporaneous physical injury. Counsel for the defendant concede that the authorities are in conflict on the subject, but assert that the great weight of authority supports their position; we do not find this to be the fact when the authorities are analyzed and the proper distinctions are drawn.

The cases cited by the defendant, and many more dealing with the subject, are correlated in 17 C.J. 831, § 152 (cited by counsel), and as notes to the next succeeding five or six sections on the subject. The statement of the text-writer in section 152 is that "the general rule supported by the weight of authority is that mental pain and suffering will not alone constitute a sufficient basis for the recovery of substantial damages" (certain exceptions noted), and many of the cited cases deal merely with attempts to recover for "mental pain and suffering," while others fail to distinguish between this class of cases and those wherein recovery is sought for actual injury to the nervous system and to the body by reason of fright and shock. After considering exceptions to the general rule stated, the author, in section 152 above, says: "Mental pain and suffering as such must be distinguished from pain and suffering ensuing from an injury to the nervous system, which is to be regarded as a physical injury, and as such sufficient in itself to support a recovery of damages." In dealing with the subject of "Fright or Shock" (section 158), the author declares that "in many jurisdictions there can be no recovery for physical results consequent upon such mere fright. A more logical view is that, in the case of physical consequences of fright, the fright occasioned by defendant's wrongful act is an intervening but not a controlling cause, and that a recovery may be had for the physical consequences as the natural and proximate consequences of the original wrongful act," citing many cases from many jurisdictions.

The Supreme Court of California has said: "It must be conceded that a nervous shock or paroxysm, or a disturbance of the nervous system, is distinct from mental anguish, and falls within the physiological, rather than the psychological, branch of the human organism. It is a matter of general knowledge that an attack of sudden fright, or an exposure to imminent peril, has produced in individuals a complete change in their nervous system. *** Such a result must be regarded...