Robb v. Pennsylvania R. Co.

• Decision Date: 28 May 1965
• Citation: 210 A.2d 709,8 Storey 454,58 Del. 454
• Parties: , 58 Del. 454 Dixie B. ROBB, Plaintiff Below, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, a corporation of the Commonwealth of Pennsylvania, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

Page 709

210 A.2d 709

8 Storey 454, 58 Del. 454

Dixie B. ROBB, Plaintiff Below, Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, a corporation of the

Commonwealth of Pennsylvania, Defendant Below, Appellee.

Supreme Court of Delaware.

May 28, 1965.

Appeal from summary judgment granted by the Superior Court of New Castle County in favor of the defendant.

William E. Wiggin, of Richards, Layton & Finger, Wilmington, for plaintiff below, appellant.

Thomas G. Hughes, of Berl, Potter & Anderson, Wilmington, for defendant below, appellee.

WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.

HERRMANN, Justice:

The question before us for decision is this: May the plaintiff recover for the physical consequences of fright caused by the negligence of the defendant, the plaintiff being within the immediate zone of physical danger created by such negligence, although there was no contemporaneous bodily impact?

Considering the record in the light most favorable to the plaintiff, the facts may be thus summarized:

A private lane leading to the home of the plaintiff, Dixie B. Robb, was intersected by a railroad right-of-way leased to the defendant, The Pennsylvania Railroad Company. On March 11, 1961, the plaintiff was driving an automobile up the lane toward her home when the vehicle stalled at the railroad grade crossing. A rut about a foot deep had been negligently permitted by the defendant to form at the crossing. The rear wheels of the automobile lodged in the rut and, although the plaintiff tried to move the vehicle for several minutes, she was unable to do so. While thus engaged in attempting to move the vehicle, the plaintiff saw the defendant's train bearing down upon her. With only seconds to spare, she jumped from the stalled vehicle and fled for her life. Immediately thereafter, the locomotive collided with the vehicle, hurled it into the air and demolished it. The plaintiff was standing within a few feet of the track when the collision occurred and her face was covered with train soot and dirt. However--and this is the nub of the problem--she was not touched by the train; there was no bodily impact; and she suffered no contemporaneous physical injury. nevertheless, the plaintiff was greatly frightened and emotionally disturbed by the accident as the result of which she sustained shock to her nervous system. The fright and nervous shock resulted in physical injuries including cessation of lactation which interfered with the plaintiff's ability to nurse and otherwise care for her infant child. Her nervous and general physical condition resulting from the accident also obliged the plaintiff to abandon a horse breeding business and an article which she had been engaged to write for substantial compensation.

The defendant moved for summary judgment taking the position that, assuming the defendant's negligence and its proximate causation of the plaintiff's fright and nervous shock, she may not recover because there was no 'impact' and contemporaneous physical injury. The trial judge agreed and granted summary judgment in the defendant's favor, stating: 'In spite of a modern trend to the contrary in other jurisdictions, I feel compelled to follow the 'impact theory' in this matter by reason of well established precedents in this State.' The plaintiff appeals, asserting that there are no such governing precedents in Delaware.

I.

The question is still an open one in this State. Two reported Delaware cases and one unreported case border upon the field of inquiry, but none really enter it.

In Boyle v. Chandler, 3 W.W.Harr. 323, 138 A. 273 (1927), the Superior Court ruled that there was no right of recovery for mental anguish of surviving relatives arising from the negligent failure of an undertaker to handle the body of the deceased in accordance with instructions, where no physical consequences of such mental suffering were shown. The case of Larrimore v. Homeopathic Hospital Association of Delaware, Del., 181 A.2d 573 (1962), affirming Del.Super., 176 A.2d 362 (1961), involved an action against a hospital for pain and suffering resulting from the alleged mistake of a nurse in injecting a drug by needle instead of orally as instructed by the attending physician. There, in considering the hospital's contention that no recovery for pain and suffering may be had because there was no actionable impact causing the pain and suffering, this court concluded that it did not reach, and was not required to pass upon, the question of the applicability of the 'impact rule' because the pain and suffering were the direct result of the injection. The unreported Delaware case to which reference has been made is Williamson v. Wilmington Housing Authority (Superior Court of New Castle County, No. 1627 C.A.1960) in which the Superior Court ruled that a mother may not recover for mental anguish she suffered when she came upon the accident scene and observed her child who had just been injured by a railroad train, the mother herself not having been in the path of danger.

It is obvious that the question here presented remains unresolved in this State. The instant case requires us to determine the matter.

II.

The many decisions on the question are collected in the Annotations at 11 A.L.R. 1119, 40 A.L.R. 983, 76 A.L.R. 681, 98 A.L.R. 402 and 64 A.L.R.2d 100. The cases and their underlying principles have been discussed by distinguished scholars in this field of the law, including Goodrich, 'Emotional Disturbance as Legal Damage', 20 Mich.L.Rev. 497; Smith, 'Relation of Emotions to Injury and Disease', 30 Va.L.Rev. 193; Green, 'Fright Cases', 27 Ill.L.Rev. 761; Magruder, 'Mental and Emotional Disturbance in the Law of Torts', 49 Harv.L.Rev. 1033; Hallen, 'Damages for Physical Injuries Resulting from Fright or Shock', 19 Va.L.Rev. 253; Bohlen, 'Right to Recover for Injury Resulting from Negligence Without Impact', 41 Am.Law Reg. 141; Throckmorton, 'Damages for Fright', 34 Harv.L.Rev. 260; Pollock on Torts (14th Ed.) 38; Prosser on Torts (3d Ed.) pp. 346, 350-352; and 2 Harper and James, The Law of Torts, § 18.4, p. 1033.

There is sharp diversity of judicial opinion as to the right to recover for the physical consequences of fright in the absence of an impact and contemporaneous physical injury. The disparity is strikingly illustrated by the fact that the courts of our neighboring States of Maryland and Pennsylvania have reached, and continue to adhere to, opposite conclusions on the question. See Bowman v. Williams, 164 Md. 397, 165 A. 182 (1923); Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958).

Two facets of the question are herewith eliminated from further consideration: First, it is accepted as settled that there can be no recovery for fright alone, not leading to bodily injury or sickness, arising from the negligence of another. See Boyle v. Chandler, supra; 2 Harper and James, The Law of Torts, p. 1031; 64 A.L.R.2d 100, 115, et seq. The plaintiff here concedes that proposition, stating however that she does not seek to recover for fright alone but for the physical consequences thereof. Secondly, we are not here concerned with the situation, such as existed in the Williamson case, wherein fright arose from the peril of another and the plaintiff was not in the path of the danger created by the negligence asserted. That segment of the problem has likewise given rise to contrariety of opinion. See Bowman v. Williams, supra; Annotations at 18 A.L.R.2d 220 and 64 A.L.R.2d 100, 148. We lay that question aside for another day, interesting as it may be, because the instant case does not require us to decide it.

The two schools of thought in the matter at hand evolved from two lines of cases originating about the turn of the century. The impact rule was established in America by the leading cases of Ewing v. Pittsburgh, etc., R. Co., 147 Pa. 40, 23 A. 340, 14 L.R.A. 666 (1892); Mitchell v. Rochester R. Co., 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781 (1896); and Spade v. Lynn & Boston R. Co., 168 Mass. 285, 47 N.E. 88, 38 L.R.A. 512 (1897). These cases reflected the influence of the earlier English case of Victorian Railways Commissioners v. Coultas, 13 App.Cas. 222 (1888), recognized generally as the first notable case to espouse the impact rule. The Coultas case was quickly overruled, however by Dulieu v. White & Sons, 2 K.B. 669 (1901) which settled the law in England from then on in favor of recovery for physical injuries resulting from nervous shock induced by negligence, without actual impact. Nevertheless, the trend favoring the impact rule had attained a head-start in America by reason of the Ewing, Mitchell and Spade cases and it spread to numerous other jurisdictions under the influence of those cases. The doctrine denying recovery was not accepted universally, however. In Purcell v. St. Paul, etc., Ry. Co., 48 Minn. 134, 50 N.W. 1034, 16 L.R.A. 203 (1892) and Mack v. South Bound R. Co., 52 S.C. 323, 29 S.E. 905, 40 L.R.A. 679 (1897) the contrary rule was adopted; and, following those two leading cases, which represented the minority view for a long time, the courts of an increasing number of jurisdictions have been adopting the rule allowing recovery for injury due to fright induced by negligence without impact; until today the latter is recognized as the majority rule. See 2 Harper and James, The Law of Torts, p. 1034.

The impact rule is based, generally speaking, upon three propositions expounded in the Mitchell and Spade cases:

1) It is stated that since fright alone does not give rise to a cause of action, the consequences of fright will not give rise to a cause of action. This is now generally recognized to be a non-sequitur, want of damage being recognized as the reason that negligence causing mere freight is not actionable. It is now generally agreed, even in jurisdictions which have adopted the impact rule, that the gist of the action is the injury flowing from the negligence, whether operating through...