Ward v. W. Jersey & S. R. Co.

• Citation: 47 A. 561,65 N.J.L. 383
• Parties: WARD v. WEST JERSEY & S. R. CO.
• Decision Date: 12 November 1900
• Court: United States State Supreme Court (New Jersey)

47 A. 561

65 N.J.L. 383

WARD

v. WEST JERSEY & S. R. CO.

Supreme Court of New Jersey.

Nov. 12, 1900.

Action by Charles M. Ward against the West Jersey & Seashore Railroad Company. On demurrer to the declaration. Judgment for defendant.

Argued June term, 1900, before DEPUE, C. J., and GUMMERE, LUDLOW, and FORT, JJ.

Spencer Simpson, for plaintiff.

Nelson B. Gaskill and Joseph H. Gaskill, for defendant.

GUMMERE, J. The declaration alleges that the plaintiff, while driving along a public highway at a point where it was crossed by the defendants' railroad, was permitted, without warning from the defendants, to drive upon the crossing, in the face of an approaching train; that the gates by which the crossing was protected were raised when he drove upon it, but were carelessly and improperly lowered by the defendants' gate keeper before he was able to pass entirely over, whereby he was subjected to great danger of being run down and killed by said train; and that, by reason of the danger to which he was thus exposed, he was shocked, paralyzed, and otherwise injured. The question which the demurrer presents is this: Whether, in an action for negligence, the mere apprehension of personal injuries, which are not in fact received, will support an action, when physical suffering follows as a consequence of the mental disturbance. It seems to be universally conceded that mere fright, from which no subsequent physical suffering results, affords no ground for action; but, in cases where physical injuries follow therefrom, the decisions are not harmonious. In my judgment, however, those cases which hold to the view that there can be no recovery for such injuries rest upon sound legal principles, and should be followed. The courts of Maine, Pennsylvania, New York, and Massachusetts, as well as those of England, are prominent among \ the tribunals which hold to the view which I have expressed. In the case of Wyman v. Leavitt, 71 Me. 227, it was decided, on the trial of an action for negligence in blasting out a ledge of rock, whereby certain portions of the rock fell upon plaintiff's building, that "the plaintiff's mental anxiety in relation to his own personal safety is not, in the absence of physical injury, an element of damage." In Ewing v. Railway Co., 147 Pa. St. 40, 23 Atl. 340, 14 L. R. A. 660, it is said that a declaration which alleges that in a collision on defendants' railroad the cars were thrown off the track and fell against the plaintiff's building, whereby the plaintiff was subjected to great fright, nervous excitement, and distress, by which her life was endangered, states no cause of action. In Mitchell v. Railway Co., 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 781, it was held that the illness and subsequent miscarriage of a female plaintiff, caused by fright due to danger to which she had been subjected by the careless operation of a horse car of the defendant, afforded no ground of action, when unaccompanied by personal injury. In Spade v. Railroad Co., 168 Mass. 287, 47 N. E. 88, 38 L. R. A. 512, the cause of action set out in the declaration was that one of the employés of the defendant, in endeavoring to remove a person from the train, conducted "himself with such carelessness, negligence, and...