Salmi v. Columbia & N.R.R. Co.

• Decision Date: 09 March 1915
• Citation: 75 Or. 200,146 P. 819
• Parties: SALMI v. COLUMBIA & N. R. R. CO.
• Court: Oregon Supreme Court

146 P. 819

75 Or. 200

SALMI v. COLUMBIA & N. R. R. CO.

Supreme Court of Oregon

March 9, 1915

Department 1.

Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.

Action by Sophia Salmi against the Columbia & Nehalem River Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

It appears from the record that the line of the defendant's road passes the residence of the plaintiff within 150 feet but considerably higher up a steep hillside. The complaint states in substance that on June 6, 1913, the defendant caused a large and unsafe blast of powder or dynamite to be exploded immediately above her residence on the right of way well knowing at the time that the plaintiff and her two daughters were in the house, and having negligently advised them to go into the back bedroom, which was farthest away from the right of way, until the blast should be discharged. The plaintiff charges that they accepted this counsel and thereupon took refuge in the room and remained there until the blast was set off. She then alleges:

"That by reason of said blast, aforesaid, a great and large amount of rock, earth, stumps, and débris was hurled and thrown with great force and violence at and down upon the residence of the plaintiff and the room then and there occupied by the plaintiff and her two daughters, by reason of which negligent and wrongful act the plaintiff was greatly frightened and was rendered unconscious, thereby falling in a swoon, upon the floor, by reason of which she sustained a painful, severe and permanent injury, to wit, a large and painful rupture of the umbilicus resulting in a large and painful umbilical hernia, from the effects of which she has suffered great and excruciating physical and mental pain and suffering and from the effects of which she has ever since been prevented from attending properly to her household and other duties."

She claims damages in the sum of $4,600.

For a second cause of action the complaint recites a similar occurrence happening November 12, 1913, attended by another swoon of the plaintiff and the increase of the previous hernia, all to her damage in a sum set forth, together with certain special damages which she avers. The answer traversed the allegations of the complaint. The defendant also declares that in the progress of the work of clearing the right of way the contractor of the defendant put in a proper charge of powder, gave the plaintiff due warning that in 30 minutes the blast would be set off, and requested her to retire to a distance beyond which any rocks or débris could be thrown by the upheaval; but that she carelessly and negligently determined to remain in the house, so that any fright or injury suffered by her was due to her own negligence. The general issue and the defense of independent contractor were interposed to the second cause of action. The new matter in the answer was denied by the reply. A judgment resulted in favor of the plaintiff after a jury trial, and the defendant appealed.

John McCourt, of Portland (Veazie, McCourt & Veazie, of Portland and J. W. Day, of St. Helens, on the brief), for appellant. Glen R. Metsker, of St. Helens, for respondent.

BURNETT J. (after stating the facts as above).

Among other things, it is charged that the immediate cause of injury was the sudden fear of the plaintiff for which no action lies. Many authorities are cited to sustain the proposition that for mere fright without an attendant or resulting physical injury a cause of action will not lie, although subsequently physical ailments result. A careful analysis of the plaintiff's allegations on that point leads to the conclusion that she does not claim damages for the alarm she describes, but only relies upon it as one link in the chain of causation culminating in the actual physical hurt of which she complains. The lighted squib caused no damage to the person upon whom it first fell; but the individual who started its flight set in motion an agency which, operating naturally and hence in a manner reasonably to be anticipated, ultimately produced harm for which he was liable to the person injured. So in this case, if the testimony for the plaintiff is to be credited, the defendant inaugurated violent action by blasting which operated at once upon her mentality producing swoon followed in unbroken and immediate sequence by her fall upon an upturned stool resulting in the trauma of hernia for which she claims damages. This constitutes the attendant or eventuating physical injury prescribed by most, if not all, the precedents cited by the defendant as a condition of recovering damages where fright is involved.

It is quite the ordinary thing, and a result to be expected, that a woman would be frightened by a loud explosion, especially when attended by débris falling all around her and into the very house where she was. The rest follows in normal succession. The instinct of self-preservation, a mental phenomenon, induced B. to throw off the squib which had fallen upon him. The immediate result was the injury charged upon A., who first threw the missile. Likewise in this instance the explosion of the blast naturally produced the mental state of fright, the fright the faint, the faint the fall, the fall the fracture of the abdominal wall, upon which the plaintiff rests her cause of action, all following in a close and immediate series. In the illustration of the squib, as well as in the concrete case before us, mental disturbance formed a link in an unbroken chain of causation created by the initial negligent act of the defendant producing a result for which reason and as we believe the weight of authority holds it responsible.

Human emotions and other mental states naturally have a powerful influence upon human action and are factors which cannot be left out of the account. They must be reckoned as part of the necessary sequence of intermediate causes. It is a basic principle that, if the cause set in motion by the defendant operates continuously and directly upon another agency which as a necessary consequence affects a still different force by which injury is inflicted, the author of the initial cause is responsible for the final result. The difficulty lies in the application of this fundamental doctrine. The authorities are apparently in hopeless conflict on this question, but it is believed that proper discrimination will reconcile them in this manner. If, under all the circumstances in the exercise of ordinary care, a person can discern that his act will naturally and probably result in harm of some kind to another, but not necessarily foreseen as to the exact form of injury, the former is liable in damages for the ensuing casualty. On the contrary, if no harmful result can reasonably be expected, or if there is no natural connection between the act of the defendant and the injury alleged, no action will lie.

In this case, considering that a large blast was set off within 150 feet of the plaintiff's house from the...