Cote v. Litawa
| Citation | 96 N.H. 174,18 A.L.R.2d 216,71 A.2d 792 |
| Parties | , 18 A.L.R.2d 216 COTE v. LITAWA (two cases). |
| Decision Date | 07 March 1950 |
| Court | Supreme Court of New Hampshire |
Maurice A. Broderick, Manchester, for plaintiffs.
Devine & Millimet, Manchester, for defendant.
The question to be deciced is whether a mother whose child is negligently struck and injured by the automobile of another, may recover for physical injuries caused by the fright or shock of learning of such injury to her child immediately after its occurrence, the mother not having witnessed the accident, nor been aware of any danger to her child before its happening, nor being in any position to be struck herself or to fear for her own safety.
The case being before us on motions of the defendant to dismiss the mother's action therefor and a count in her husband's action to recover for loss of consortium occasioned thereby, the facts alleged in the plaintiffs' pleadings are to be considered, for the purposes of these proceedings, as true and are to be construed most favorably to the plaintiffs. Bell v. Pike, 53 N.H. 473, 475; Shimkus v. Caesar, 95 N.H. 286, 62 A.2d 728; 41 Am.Jur. 238 p. 457.
The defendant while driving his automobile in a driveway situate in the rear of 31 Elm Street in Manchester, for the purpose of parking it in a garage occupied by him there, heard a rattle and a little girl scream. He got out of his car and saw a little girl, who was Patricia, towards the back end of his car. He picked her up, carried her up one flight of stairs in the building at 31 Elm St., and on being informed that she lived on the third floor, he proceeded farther up and handed the child to Lorraine upon being told by her that this was her daughter.
When the accident happened Lorraine was writing a letter in her room on the third floor and in the front end of the premises at 31 Elm St. She was eight months pregnant. Upon hearing a lot of commotion in the back yard she went out to the back porch to investigate. When she got there she heard some one say 'Patty' and she does not remember much of anything thereafter.
Patricia's leg was bruised and her elbow was scraped. As a result of the shock and fright from the above incident, Lorraine was hospitalized for thirty days and was treated for a longer period.
The fact that Lorraine's injuries consist of fright and shock only (no accompanying physical impact) followed by physical consequences does not affect in any way the question before us for such circumstances do not preclude recovery if negligence and causation are established. Chiuchiolo v. New England etc. Tailors, 84 N.H. 329, 150 A. 540. See Kenney v. Len, 81 N.H. 427, 128 A. 343; White v. Schnoebelen, 91 N.H. 273, 275, 18 A.2d 185.
The parties are also in agreement that, if the defendant is liable in this case, his liability must arise out of the negligent operation of his automobile, and the plaintiffs have so alleged in their pleadings.
We know of no case in New Hampshire, or in any other jurisdiction, and none has been brought to our attention, which has passed on the precise issue to be decided in this case. The general considerations involved have been discussed in, among others, the cases of Garland v. Boston & M. Railroad, 76 N.H. 556, 86 A. 141, 46 L.R.A., N.S., 338, Ann.Cas.1913E, 924; Flynn v. Gordon, 86 N.H. 198, 165 A. 715; Lemarier v. A. Towle Co., 94 N.H. 246, 250, 51 A.2d 42; Hambrook v. Stokes, 1 K.B. 141; Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253; Waube v. Warrington, 216 Wis. 603, 258 N.W. 497, 98 A.L.R. 394; Frazee v. Western Dairy Products Co., 182 Wash. 578, 47 P.2d 1037; Carey v. Pure Distributing Corporation, 133 Texas 31, 124 S.W.2d 847; Hay v. Young, 1943 A.C. 92; Restatement, Torts, 281, and 1948 Supplement; 49 Harv. Law Rev. 1033, 1040. Its solution involves a consideration of the basic principles of the law of negligence.
The law governing actions for negligence has for its foundation the rule of reasonable conduct, or more fully stated, due care under all the circumstances of the particular case. Garland v. Boston & M. Railroad, supra, 76 N.H. 563, 86 A. 141. ...
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Amaya v. Home Ice, Fuel & Supply Co.
...98 A.L.R. 394; accord, Resavage v. Davies (1952, Md.), supra, 199 Md. 479, 86 A.2d 879, 881(2); Cote v. Litawa (1950, N.H.) 96 N.H. 174, 71 A.2d 792, 794-795(5), 18 A.L.R.2d 216; Angst v. Great Northern Ry. Co. (1955, D.C.Minn.), supra, 131 F.Supp. 156, 159(1-4); King v. Phillips, supra, (1......
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