Davis v. Cleveland Ry. Co.

• Decision Date: 17 May 1939
• Docket Number: 27120.
• Citation: 135 Ohio St. 401,21 N.E.2d 169
• Parties: DAVIS v. CLEVELAND RY. CO.
• Court: Ohio Supreme Court

21 N.E.2d 169

135 Ohio St. 401

DAVIS v. CLEVELAND RY. CO.

No. 27120.

Supreme Court of Ohio

May 17, 1939

Syllabus by the Court.

1. In a personal injury action involving ordinary negligence, no liability exists for fright and its consequences when such fright is unaccompanied by contemporaneous physical injury. Miller v. Baltimore &amp Ohio S.W. Rd. Co., 78 Ohio St. 309, 85 N.E. 499, 18 L.R.A.,N.S., 940, 125 Am.St.Rep. 699, approved and followed.

2. A personal injury or disability which, in the light of the surrounding circumstances, could not have been reasonably anticipated as the probable result of the particular negligence, is not actionable.

Willie Davis, the plaintiff, began an action in the Court of Common Pleas of Cuyahoga county against the defendant, the Cleveland Railway Company, to recover damages for personal injuries and disabilities alleged to have resulted directly from the defendant's negligence.

On the afternoon of February 24, 1936, the plaintiff, a woman about fifty years of age who asserted she was in good health became a passenger on one of the defendant's motor busses. As she was engaged in leaving the bus at a stop in the vicinity of East Second street and Prospect avenue, in the city of Cleveland, the electrically operated folding doors at the exit in the rear unexplainedly closed and caught her, detaining her for a period estimated by different witnesses at from thirty seconds to two minutes. The bus was stationary at the time. According to the plaintiff's own testimony, other passengers had alighted, still others were waiting behind her to do so, and the bus driver was looking in her direction.

The edges of the doors pressing against the plaintiff were encased in soft rubber, and she sustained no bruises or wounds, and no broken bones.

Plaintiff offered evidence tending to show that the fright and shock of this experience induced a mental or nervous disturbance, described by some of the medical witnesses as major hysteria, manifesting itself in a paralysis of parts of the plaintiff's body.

At the request of the defendant, the following special charge was given before argument, without objection:

'In an action to recover damages for injuries sustained through the negligence of another, the law regards only the direct and proximate results of the negligent act as creating a liability against the party complained of. In contemplation of law an injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence does not create a cause of action. Fright or shock unaccompanied by contemporaneous physical injury, even though subsequent illness results, does not entitle the one affected to recover where the negligent acts complained of are neither willful nor malicious. I say to you as a matter of law that if you find from a preponderance of all the evidence that the plaintiff on the occasion set out in the petition herein suffered from fright or shock and was thereafter ill but at said time sustained no physical injury, then your verdict shall be for the defendant regardless of the present condition of the plaintiff.'

In his general charge the trial judge instructed the jury that 'it must appear that the negligent act or omission to act must be the direct and proximate cause of the injury sustained.' He further charged that 'while no recovery can be had for fright or shock when it is not accompanied by physical injury, it is equally well settled that if a wrongful act on the part of another does cause physical injury as well as fright or shock or nervous disorder, the fright or the shock or the mental disorder or nervous disorder and its consequent mental sufferings may be considered in the assessment of damage. * * * It has been said that where physical injury, however slight, has resulted for which an action may be maintained, then a recovery may also be had for the fright and the nervous shock or the fear or mental disorder.'

The plaintiff registered a general exception to the charge. She did not request any instruction covering an award of nominal damages.

Answering a special interrogatory submitted by the defendant, eleven of the jurors found that the plaintiff sustained no physical injury on the occasion set out in the petition, and a general verdict was returned for the defendant, upon which judgment was entered.

An appeal on questions of law to the Court of Appeals resulted in an affirmance of the judgment below without dissent, and the case is in the Supreme Court pursuant to the allowance of a motion to certify the record.

Stephenson & Celeste, of Cleveland, for appellant.

Squire, Sanders & Dempsey, A. E. Powell, and J. H. Kerr, all of Cleveland, for appellee.

ZIMMERMAN Judge.

Should the judgment for the defendant herein stand?

There is general agreement among the authorities that mere fright, unaccompanied or followed by physical injury, does not form the basis for a cause of action. But the cases are in hopeless conflict as to whether there is a right of recovery for physical injury, disability, or illness resulting from fright caused by a negligent act. Probably no question connected with the law of negligence has given rise to so much difference of opinion.

Those courts which deny recovery give one or more of the following reasons for their decisions: (1) Since there can be no recovery for fright alone, there can be none for the consequences of fright. (2) Physical injury flowing from fright caused by negligence cannot be said to be the proximate result of the negligence. (3) Public policy or expediency inhibits recovery, because of the danger of inviting fictitious litigation and because of the impossibility of estimating damages with any degree of certainty.

On the other hand, many of the text book authors, the writers on legal subjects and a number of the courts uphold generally the right of an individual to recover for the consequences of fright caused by negligence. They point out that when physical injury or illness follows genuine fright due to another's tortious conduct, the tort and not the fright is the foundation of the cause of action, the fright being simply a link in the chain of causation.

The objection that the physical injury or illness cannot be regarded as the direct result of the negligent act is answered with the assertion that an act is always the proximate cause of an injury when, having due regard for the surrounding circumstances, such injury is fairly recognizable as the natural and probable consequence of the act.

In reply to the argument that recovery should be denied on the ground of public policy or expediency, it is submitted that an injury resulting from fright is no more difficult of ascertainment than one resulting from an actual physical blow, and is established by the same kind of evidence; and the fact that fright intervenes between the negligence and the injury cannot possibly affect the character of the injury and the amount of damages which should be...