Opinion
October 12, 1909.
William L. Kiefer [ Frank V. Johnson with him on the brief], for the appellant.
Frederick N. Van Zandt, for the respondent.
When the plaintiff, with her two young children, was passing in a city street where the defendant in laying mains had a pot for melting lead standing in the street near the curb, there was an explosion so that some of the drops of molten lead were cast upon her clothes and upon her left hand. She recovered $2,000 damages for negligence. I think that they are excessive. The loss upon her apparel was trifling. The injury to her hand was not severe. The plaintiff testifies that the four or five drops of lead burned her — stung her — but that she brushed them off quickly. She cannot recall that she mentioned the burns to the defendant's foreman with whom she conversed after the accident. Her physician prescribed a little ointment for them, but they were so slight as not to call for treatment. They were of no importance compared to her nervousness and her shock. With difficulty he found at the time of the trial a faint scar. It is too plain for discussion that the damages awarded were not confined to the injury to clothes or person, but that the jury took into consideration the testimony of the plaintiff and of her physician that she had suffered and might continue to suffer from nervous troubles and general debility of body, including disarrangement of her generative organs, manifested in a miscarriage three and a half weeks after the accident, a second miscarriage six months thereafter, when she had been pregnant for two months, and a third miscarriage three months thereafter, when in the third month of pregnancy. It is hard to believe, and the testimony does not convince me that the verdict which rests upon such belief should stand, that all of the serious ailments which this plaintiff and her physician say she suffers are due merely to the slight physical injury which she suffered, or any immediate shock therefrom. If they are at all consequent to the accident, I would rather ascribe them to the fright therefrom. The explosion, her proximity to it with two small children, may well account for her consequent fright, shock and nervousness. But as she cannot recover damages for her fright, she cannot recover for any physical consequences of her fright. ( Mitchell v. Rochester Railway Co., 151 N.Y. 110.)
Moreover, I think that such damages, outside of the direct physical injury to her hand which she pleaded and attempted to prove, are not proximate to the accident. Such radical impairment of the nervous system, general health and bodily organs, are not the ordinary and natural results of the spattering of molten lead out of an iron pot into the open air so that a few drops thereof fell upon the hand and the clothing of a passerby with but little injury. The results are unusual and unexpected. (Ibid.)
I think that the judgment must be reversed and a new trial be ordered, costs to abide the event.
BURR and RICH, JJ, concurred; MILLER, J., concurred in result; HIRSCHBERG, P.J., dissented.
Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.