Morse v. Chesapeake & O. Ry. Co.

• Citation: 77 S.W. 361,117 Ky. 11
• Parties: MORSE v. CHESAPEAKE & O. RY. CO.
• Decision Date: 09 December 1903
• Court: Court of Appeals of Kentucky

77 S.W. 361

117 Ky. 11

MORSE v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky.

December 9, 1903

Appeal from Circuit Court, Lewis County.

"To be officially reported."

Action by Zona B. Morse against the Chesapeake & Ohio Railway Company. From a judgment of dismissal on sustaining a general demurrer to the petition, plaintiff appeals. Affirmed.

W. C Halbert and S. J. Pugh, for appellant.

W. H Wadsworth and E. L. Worthington, for appellee.

BURNAM C.J.

The appellant, Zona B. Morse, sought in this action to recover damages from the Chesapeake & Ohio Railway Company for "fright and mental suffering," and superinduced subsequent nervous prostration and injury, although there was no contemporaneous physical injury inflicted by the appellee. The facts which the plaintiff relied upon to support her cause of action are, in substance, that she owns a house and lot located on the west side of Main street, in the village of Quincy, in Lewis county, in which she resided at the time of her alleged injury; that the street was 30 feet wide, and that appellee's depot grounds and switchyards were located immediately opposite her residence, on the west side of Main street; that, a short time previous to the commission of the acts complained of, the appellee constructed upon its yards a switch from its main track to the east side of the street, directly opposite her residence; and that it failed to erect and maintain a bumping post at the end of this track, and that, as a consequence thereof, several of appellee's cars were backed over the end of this switch out into the street, and within 15 feet of her yard, and towards her residence, where she was at the time, which greatly frightened and alarmed her, and in consequence of which she suffered such nervous prostration and physical disability as confined her to her home for more than two months under medical treatment, and at great expense; that the injuries had been and would continue to be permanent. The petition further alleges that appellee was grossly negligent, both in the construction of the switch, and in the operation of its trains thereon. The court sustained a general demurrer to appellant's petition as amended, and adjudged that her petition be dismissed, and she has appealed.

The exact question presented by the appeal has not been heretofore decided by this court, but it has been decided in a number of well-considered opinions that damages cannot be recovered for mental suffering alone in an action for personal injuries based on negligence, unaccompanied by some direct contemporaneous injury to person or property, or growing out of some contract relation between the parties. See Dawson v. L. & N. R. Co., 4 Ky. Law Rep. 810; N. N. & M. V. Co. v. Gholson, 10 Ky. Law Rep. 938; and City Transfer Co. v. Robinson, 12 Ky. Law Rep 555. These decisions are practically in accord with the great weight of authority on this question. In fact, our attention has been called to only one case which may be considered as holding the contrary doctrine--that of Mack v. R. R. Co., 52 S.C. 323, 29 S.E. 905, 40 L. R. A. 679, 68 Am. St. Rep. 913. On the other hand, Thompson on Negligence, § § 156, 157; 2 Shearman & Redfield on Torts, § 761; Jaggard on Torts, 369, 370; 2 Wood on Railroads, 1739--assert the contrary doctrine. In the note to the case of Gulf, etc., R. Co. v. Hayter, 77 Am. St. Rep. 860, Judge Freeman, in an elaborate note, has collected practically all the authorities on the point up to January, 1900; and they unanimously hold that there can be no recovery for fright alone,...