McCarthy v. Boston Elevated Ry. Co. 

• Decision Date: 18 April 1916
• Citation: 112 N.E. 235,223 Mass. 568
• Parties: McCARTHY v. BOSTON ELEVATED RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 568

112 N.E. 235

McCARTHY

v.BOSTON ELEVATED RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

April 18, 1916.

Exceptions from Superior Court, Middlesex County; John H. Hardy, Judge.

Actions on tort by Hannah T. McCarthy and by Michael J. McCarthy against the Boston Elevated Railway Company. Verdict for the plaintiff in each action, and defendant excepts. Exceptions overruled.

Augustine J. Daly, of Boston, for plaintiffs.

Francis J. Carney, of Boston, for defendant.

CROSBY, J.

The plaintiff in the first action, a passenger, seeks to recover for personal injuries, alleged to have been received in a collision of the defendant's cars. The second action is brought by the husband of the plaintiff in the first action, for consequential damages.

The female plaintiff will hereafter be referred to as the plaintiff.

At the trial of these cases in the superior court, it was admitted that the collision was due to negligence on the part of the defendant and that the plaintiff was in the exercise of due care.

1. It is undoubtedly true that there can be no recovery for personal injuries in cases of this kind, where the only result of the injury is fright or mental distress unaccompanied by some physical injury to the person from without. Spade v. Lynn & Boston R. R., 168 Mass. 285, 47 N. E. 88,38 L. R. A. 512, 60 Am. St. Rep. 393;Cameron v. New Eng. Tel. & Tel. Co., 182 Mass. 310, 65 N. E. 385;Steverman v. Boston Elev. Ry., 205 Mass. 508, 91 N. E. 919;Conley v. United Drug Co., 218 Mass. 238, 105 N. E. 975, L. R. A. 1915D, 830;Megathlin v. Boston Elev. Ry., 220 Mass. 558, 108 N. E. 362.

[2] The collision was caused by a car of the defendant running into the rear end of the car in which the plaintiff was riding. There was evidence that as a result of the collision all the passengers were thrown to the floor; that afterwards a man was seen putting the plaintiff back upon the seat of the car; that she was carried out of the car and to her home, and that she was in a condition of collapse and unable to walk; that on the day of the accident or the next day, the plaintiff's husband ‘saw a mark on his wife's right hip and right elbow that appeared to be a bruise.’ The physician who attended her on the day of the accident testified that when he first examined her he diagnosed her case as an injury to the back; ‘that he thought there was a little redness at the time’ although there were no abrasions or black and blue spots. This evidence, if believed, would justify a finding that the injuries which the plaintiff received were not wholly mental but were also of a physical character for which she was entitled to recover, together with the mental suffering which arose out of such physical injuries.

If a person meets with such an accident as happened to the plaintiff, and shortly afterwards marks and bruises are found upon the body, we think it is a reasonable inference that such marks and bruises were caused by the accident and that it could not be ruled that the cause thereof was speculative or conjectural; accordingly the defendant's first, second, third and fourth requests could not have been given.

2. There was evidence to show that before the accident the plaintiff was a strong, healthy, robust woman about 27 years of age. There was no evidence to show that she was ‘a person of peculiar sensitiveness,’ and therefore, the defendant's seventh request was not applicable. We do not mean to intimate that the ruling is sound.

[6] 3. The averment of damages in the declaration is general, and where there are averments that show a liability, this is sufficient unless special damages are sought to be recovered. As was said by this court in Sherlag v. Kelley, 200 Mass. 232 at page 236,86 N. E. 293,19 L. R. A. (N. S.) 633, 128 Am. St. Rep. 414:

‘The forms of pleading previously used in this commonwealth are authorized by the R. L. c. 173, § 130. In Pub. Sts. c. 167, § 94, under the forms of declarations in actions of tort is this language: ‘The ad damnum is a sufficient allegation of damage in all cases in which special damages are not claimed.’'

The declaration alleges that:

‘While a...