Baltimore City Passenger Railway Co. v. Kemp

Stone, J., filed the following dissenting opinion: I am unable to agree with the majority of the Court upon the principal question involved in this case. I think, as a mailer of law, the plaintiff was not entitled to recover damages for the cancer which she claims was the result of the injury she received on the road of the defendant. In the view that I take of the matter, it makes no difference whether the cancer was the result of the accident or not, but I assume that it was in fact produced by the injury the plaintiff’received on the defendant’s road. This was an action brought against a common carrier for negligence and carelessness, whereby the passenger was injured.

In my opinion, all such actions are founded ⁸⁴ on contract, and the damages recoverable are for a breach of the contract, and for that only. This is not an action for an intentional or wanton injury. Such cases stand upon an entirely different footing from the one before us, and in such a case, -where the injury is the result of an intentional or wanton act, the rule of damages is and ought to he entirely different. In the case before the Court, and in all cases where a railroad, or other transportation company, undertakes to carry a passenger for hire from point to point, they undertake to transport him safely, or at least to use all possible care to do so.

If by the negligence of their employes, he is injured, it is a breach of the contract they made with him, and that only. The measure of the damages is the injury he receives from the breach of the contract to use all possible care to transport him safely. What is the correct measure of damages, is still in many cases a matter of doubt. It is now well settled, both in England, and in this State, that the liability of a common carrier, who undertakes to carry goods, is the value of the goods at the place of delivery, and nothing more.

This is placed upon the ground that it is a contract made by the carrier, that for a certain consideration he will carry safely the goods to the point of their destination. But damages for injuries to the person of a passenger carried, by negligence of the carrier, are not so readily ascertained or measured. Still I think the principle is the same. I think it must he conceded that cancer is a distinct and well known disease, not necessarily or probably connected with, or resulting from, railway accidents.

It was known and dreaded probably centuries before the running of the first railway train. It is not the natural and probable consequence of a railway accident of any sort. If it did result from the injury, the plaintiff received in this case, such a result was ⁸⁵ highly improbable, exceptional, and one that could not possibly have been foreseen or contemplated by the company, when they undertook to carry the passenger safely, and could have formed no part of the contract between the company and the passenger. Since Baxendale’s Case it has been generally conceded both in England and in this State, that the market value of the goods at the place of delivery, is the measure of the damages for their loss or injury.

It is true, that the owner of the goods may sustain a milch greater loss than the market value of the goods. The failure to get them, may disarrange and cause serious loss to his business. But sucli losses, which may possibly accrue, form no part of the contract of the carrier. They are too remote and contingent, and form no part of his ordinary contract.

He does not undertake to guard against any such merely possible contingency. He does not charge for any such risk. So when the transportation company undertakes to carry a person from place to place, it does guarantee against the natural, probable and ordinary consequences of any negligence or carelessness on its part which causes injury to the passenger. But it does not insure against every possible injury, which can be traced back, and had its beginning in the accident.

It must be something that the company can foresee, and thus guard against, before it can be held responsible. It cannot examine into the health and condition of the passenger, but must take all, the delicate and sickly, as well as the strong and robust, the diseased as well as the healthy. It is very possible that mere fright at the occurrence of a slight railroad collision, might cause death to a person in the last stage of heart disease, although he might be physically untouched. In such case would the railroad be chargeable with his death ?

In the case of Hobbs vs. London and South Western Railway Company, 10th Law Reports, Queen’s Bench, the facts were these: ⁸⁶ The plaintiffs bought tickets from Wimbledon to Hampton Court, but it so happened that the train did not go to Hampton Court, but went to Esher Station, which increased the distance the plaintiffs had to go from the railway station to their home, some two or three miles. They were unable to get a conveyance from Esher station to their home, and had to walk. The night being rainy the wife contracted a cold and was laid up for some time, and medical expenses were incurred. At the trial helow the jury found a verdict for £8 on account of the inconvenience of the plaintiffs being obliged to walk home, and also £20 for the wife’s illness.

In the Court of Queen’s Bench the case was tried before Cockburn, C. J., and Blackburn, Mellor, and Archibald, Justices, who unanimously decided that the railway company were not responsible for the illness of the wife. In delivering his opinion on the question of the liability of the railway company for the illness of the wife, Chief Justice Cockburn, said: “That to entitle a person to damages by reason of a breach of contract, the injury for which compensation is asked should be one that may he fairly taken to have been contemplated by