Hanford v. Omaha & Council Bluffs Street Railway Company

• Decision Date: 16 April 1925
• Docket Number: 23045
• Parties: GLADYS HANFORD, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

203 N.W. 643

113 Neb. 423

GLADYS HANFORD, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT

No. 23045

Supreme Court of Nebraska

April 16, 1925

APPEAL from the district court for Douglas county: CHARLES A. GOSS JUDGE. Affirmed.

AFFIRMED.

John L Webster, for appellant.

Kennedy Holland, DeLacy & McLaughlin, contra.

Heard before MORRISSEY, C. J., GOOD, ROSE, and EVANS, JJ., REDICK and SHEPHERD, District Judges.

OPINION

REDICK, District Judge.

Action for damages for personal injuries. The facts upon which plaintiff bases her action are, that as plaintiff approached the intersection of Twenty-fourth and H streets, city of Omaha, intending to take a street car going south, she observed one of defendant's cars stopping at the north side of the intersection and started running in an effort to catch it, but it started forward at about the time that she reached the east curb of Twenty-fourth street, when the motorman, perceiving her, beckoned her to come on and brought the car to a stop at the point where its rear and was about in the middle of the intersection. Plaintiff thereupon left the curb and approached the street car. At the same time a following street car was approaching from the north at a distance of one-half block to a block, the motorman of which saw the plaintiff, and plaintiff saw the following car. Plaintiff continued on her course until she was within two and one-half to four feet of the first car, when the following car crashed into the first car with sufficient force to break a two by two piece of oak wood, a part of the fender, and caused the breaking of a glass in the front vestibule of the first car by impact with the elbow of the motorman who was thrown against it. The negligence charged is negligently and recklessly running into the standing car in close proximity to plaintiff, and not maintaining a proper lookout. The first car was only moved a few inches by the collision, and the fender of the second car was only slightly damaged, so that by tying it up with a rope the car could proceed. The plaintiff alleges that by the collision occurring so close in front of her she was caused to jump backward, whereby she suffered a strain causing her to become sick within one hour and to suffer a miscarriage within three days after the accident; that she was compelled to go to a hospital and undergo medical and surgical treatment; that she suffered great pain and will continue to suffer in the future.

The answer of the defendant was a general denial. The jury found for the plaintiff and assessed her damages at $ 2,000, and from judgment therefor defendant appeals.

The defendant alleges error in the giving of a number of instructions by the court. We have examined them carefully and, unless it exist in those hereafter noted, we find no error in them. They correctly presented to the jury the questions of negligence and proximate cause in accordance with the theory of the plaintiff.

Instruction Nos. 9 and 10 by the court, and No. 2 requested by defendant and refused, present the serious question to be determined on this appeal, and they are as follows:

"Instruction No. 9. You are instructed that the fact that the plaintiff was not struck by the street cars or by any part of said cars would not bar her from recovering against defendant, if you believe and find that the defendant was guilty of negligence as set forth in plaintiff's petition, and that such negligence resulted in the street cars in question running together, and that the plaintiff at said time while in the exercise of due care was in such close proximity to said collision as to cause her, in the exercise of reasonable care and as a proximate result of the collision to jump backwards, or step backwards suddenly, and if you believe and find further that the said sudden step or jump backwards, if you find she did so step or jump backwards, caused the plaintiff to suffer physical injuries."

"Instruction No. 10. If you find from a preponderance of the evidence that the collision was the result of negligence on the part of the employee or employees of the defendant, and that, as a natural and proximate cause thereof, the plaintiff, while in the exercise of reasonable care, was caused to jump or suddenly to step backwards because of the collision of the cars in such close proximity to her and because of a reasonable fear on her part of danger to herself, then you are instructed that for such physical injuries as you find, from a preponderance of the evidence, were suffered by plaintiff as the natural and proximate result thereof, the plaintiff would be entitled to recover against the defendant."

"Defendant's Request No. 2. You are instructed that if you believe from the evidence that, at the time of the collision in question, plaintiff became frightened, and received a nervous shock, and that the subsequent miscarriage of the plaintiff was due to and caused by the mental fright and nervous shock which the plaintiff suffered as the result of the collision, then, and in that event, the plaintiff cannot recover, and your verdict must be for the defendant."

By instruction No. 8 the court told the jury that, if the defendant was negligent as charged, and plaintiff had reasonable ground to believe that she was in a place of peril by reason of the collision, and in jumping back acted as a reasonably prudent person, and if as a proximate result of her movement back she suffered injuries, their verdict should be for the plaintiff. We do not deem it seriously contended that this instruction does not state the law applicable to the state of facts recited therein, and we think the evidence was sufficient to submit those questions to the jury.

But the defendant contends that it was a question for the jury whether the miscarriage suffered by the plaintiff was the result of her jumping backward or of the fright which she received on account of the collision, defendant's position being that in the latter event defendant would not be liable, and, therefore, the court erred in not presenting to the jury defendant's theory of the cause of the accident. Defendant's proposition is that the law does not award damages for mere fright, and, a fortiori, that it will not award damages for the consequences of fright. That damages may not be recovered for mere fright unaccompanied or followed by physical injuries proximately resulting therefrom is well settled. And it is also well established that fright and mental anguish and suffering following a physical injury caused by negligence are proper elements of damage to be considered by the jury. The authorities are divided upon the question whether damages may be recovered for physical injuries resulting wholly in consequence of fright, such as nervous prostration and its attendant ills, and, in the case of a pregnant woman, a miscarriage. The question is new in this jurisdiction and must be determined from general principles and authoritative precedents based upon sound reasoning.

The industry and learning of counsel on both sides have presented for our consideration a multitude of cases quite sufficient to present a complete exposition of the holdings of the various courts and the reasons underlying them. We have examined most of them, but it would be impracticable to consider them in detail, and we must be content with a reference to a number of leading cases on both sides and a statement of our conclusions. For the purposes of the discussion, we will assume that the defendant owed a duty to the plaintiff, under the circumstances, not to negligently injure her, and that it failed in that duty; that defendant was justifiably frightened by the collision, and that the miscarriage and attendant suffering of plaintiff was the proximate result of her fright. Stripped of all details, then, the question is: If plaintiff had merely stood still and in the natural order of things suffered a miscarriage solely as the result of fright, may she recover?

We will now examine a number of leading cases cited by defendant. Mitchell v. Rochester R. Co., 151 N.Y. 107, 45 N.E. 354, was a case where the horses of one of defendant's street cars were negligently turned toward the plaintiff and were stopped in such close proximity to her that she stood between the horses' heads, but her body was not touched in any manner. As the result, she was very badly frightened, became unconscious, and suffered a miscarriage. It was held, as stated in the syllabus: "No recovery can be had for injuries sustained by fright occasioned by the negligence of another, where there is no immediate personal injury." The court said: "If it be admitted no recovery can be had for fright occasioned by the negligence of another, it is somewhat difficult to understand how a defendant would be liable for its consequences. Assuming that fright cannot form the basis of an action, it is obvious that no recovery can be had for injuries resulting therefrom." A recovery was denied on principles of public policy, the danger of fictitious or speculative claims being presented, and that the damages were too remote. One of the cases cited in support of the opinion was Lehman v. Brooklyn City R. Co., 47 Hun (N.Y.) 355, which merely announced the doctrine, but without discussion or citation of authority.

Ewing v. Pittsburgh, C. & St. L. R. Co., 147 Pa. 40, 23 A. 340, was also cited. In that case the woman plaintiff was in her house near defendant's railroad track, upon which there was a collision which threw the cars onto plaintiff's premises and against her dwelling-house, greatly frightening her, so that she became sick and disabled and suffered great mental and physical pain. It was held that no cause of action existed, for the reason that plaintiff had...