Opinion
October 6, 1955.
Appeal from Supreme Court, Rensselaer County.
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
Defendant's sole point against liability is that there was no evidence of physical injury and that the verdict may not be sustained for fright alone. Nearly half century ago the Court of Appeals held that a plaintiff could not recover for injuries occasioned by fright alone where there was no immediate personal contact ( Mitchell v. Rochester Ry. Co., 151 N.Y. 107). Although the rule thus laid down has been heavily criticised we do not find that it has been expressly repudiated ( Comstock v. Wilson, 257 N.Y. 231). Its application appears to be now limited to cases where there is an absence of both physical contact and physical injury, as indicated by the Comstock case, although it is by no means certain that the rule would be applied in such a situation. However, the present appeal requires no reappraisal of the rule. Plaintiff was violently hurled to the floor of a store and suffered physical injuries as well as fright. She was standing in the store, waiting on a customer, when the tractor trailer of the defendant crashed into the store and swept past her. She was struck by a blast of air filled with glass and wooden splinters which threw her to the floor. Hence it is clear that she suffered from a physical impact as well as shock and fright, and it is immaterial that her actual injuries resulting from the impact were, compared to the latter, relatively minor. Order and judgment unanimously affirmed, with costs.