State v. Baltimore Transit Co.

Collins, J., delivered the opinion of the Court. Appellant here appeals from an order of the Superior Court of Baltimore City sustaining a demurrer to its second amended declaration, resulting in a judgment in favor of the appellee for costs of suit. As this case comes up on demurrer it is necessary that we recite the essential parts of the declaration which follow: “that at the time of the happening of the wrongs and injuries hereinafter complained of, the Defendant, for its own gain and profit, operated a transit company in the City of Baltimore, State of Maryland, * * * that on or about the 24th day of September, 1948, Harry Aronoff, husband of the equitable Plaintiff, Rose ⁵³⁰ Aronoff, and father of the equitable infant Plaintiff, Mark A. Aronoff, was the founder, president, general manager and stockholder of a plate glass business known as The Southern Plate Glass Co., a Maryland corporation which was owned and controlled in its entirety by the decedent, Harry Aronoff, and his immediate family; and in his capacity as general manager and a substantial owner of said company, said Harry Aronoff was on and about a job of installing large plate glass windows at No. 28 West Lexington Street, Baltimore, Maryland, in an establishment known as The Holly Shop, which job he was supervising and directing, that while the said Harry Aronoff was so acting, and in the exercise of due care and without any fault or negligence whatsoever on his part contributing thereto, and solely due to the negligence, recklessness and carelessness on the part of the said Defendant, its agents and employees, a street car of the Defendant was caused to run into and against the side of a parked truck of The Southern Plate Glass Co., which was properly parked on the north side of Lexington Street headed in a westerly direction, and having in racks thereon a number of large plates of plate glass intended for installation in the windows of the aforesaid The Holly Shop, and especially milled and prepared for that express purpose, all of which were shattered and broken with resulting noise, excitement, and confusion due to said collision; and that at the time of the aforesaid negligent act of the Defendant, the decedent, Harry Aronoff, was standing immediately off the sidewalk inside what is known as the lobby of The Holly Shop, which at that time had no glass in its windows or store front, and that then and there at the time of the occurrence of the collision aforesaid the decedent, Harry Aronoff, was in such position as to immediately perceive the occurrence of the accident and either saw or heard or both saw and heard the impact, collision, crashing of glass and other immediate and exciting results of the aforesaid collision; and that as a result thereof, and having an existing and essential interest in the incurring ⁵³¹ damages, the said Harry Aronoff was detrimentally affected, was greatly shocked and frightened, and sustained a severe nervous upset and emotional strain, precipitating a heart attack from which he died in about an hour thereafter, the cause of his death being officially stated as a coronary thrombosis, and the time of his death officially stated as 5:30 P.M. on September 24, 1948. The time of the collision aforesaid being approximately 4:15 P.M. of the same day, September 24, 1948, and the death occurring in an automobile while en route to The Mercy Hospital; by reason whereof the equitable Plaintiff, Rose Aronoff, the surviving wife of the deceased, has sustained pecuniary losses, including support and services which but for his death he would have continued to render her.

And that by reason of the death of the said Harry Aronoff, the equitable infant Plaintiff, Mark A. Aronoff, has sustained pecuniary losses, including support and maintenance which his father rendered to him while living, and which but for his death he would have continued to render him. That all the losses and damages sustained by the equitable Plaintiffs were caused directly by the negligence, misconduct, and wrongful acts and omissions of the Defendant as hereinabove set forth.” (Italics supplied). Appellee in this case admits that under the law of this State it is not necessary in order to recover for nervous affections that there be contemporaneous physical injury and physical impact. Baltimore & O. R. R. Co. v. Harris, 121 Md. 254 , 88 A. 282 ; Patapsco Loan Co. v. Hobbs, 129 Md. 9 , 98 A. 239 ; Great Atlantic & Pacific Tea Co. v. Roch, 160 Md. 189 , 153 A. 22 ; Geipe, Inc. v. Collett, 172 Md. 165 , 190 A. 836 , 109 A. L. R. 887; Industrial Service v. State, Use of Bryant, 176 Md. 625 , 6 A. 2d 372 .

In Palsgraf v. Long Island R. Company, 248 N. Y. 339 , 162 N. E. 99 , 59 A. L. R. 1253, a guard employed by the railroad pushed a passenger, who was carrying a package, to help him board a car. The package covered by newspapers and containing fireworks fell on the rails ⁵³² and exploded. The shock of the explosion threw down scales at the other end of the platform, many feet away. The scales struck the plaintiff, who sued the railroad company.

In that case, Chief Judge Cardozo quoted from Chief Judge McSherry the following in the case of West Virginia C. & P. R. Co. v. State, 96 Md. 652 , 54 A. 669 , 61 L. R. A. 574: “In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury.” [See also Birckhead v. Mayor and City Council of Baltimore, 174 Md. 32 , 197 A. 615 ]. Judge Cardozo in that case said: “The plaintiff, as she stood upon the platform of the station, might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue.

These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor. * * * Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.” Judge Parke said in the case of Jackson v. Pennsylvania R. Co., 176 Md. 1 , at page 5, 3 A. 2d 719, 721 , 120 A. L. R. 1068: “In order for a plaintiff to have a right of action in negligence against a defendant there must exist a duty which is owed by the defendant to the plaintiff to observe that care which the law prescribes in the given circumstances, a breach by the defendant ⁵³³ of that duty, damages and injury suffered by the plaintiff as the demonstrable effect of the breach of duty.

Negligence is, therefore, the absence of care according to the circumstances. So, an action for negligence involves the certain and definite allegation of the circumstances, and the failure of the defendant to exercise the care which the law required according to these circumstances. If the allegations should be insufficient to show a duty breached which was the efficient cause of the injury, the declaration is bad on demurrer.” Mr. Bohlen, in his Studies in the Law of Torts, says at page 260: “No act can be said to be negligent as to the plaintiff unless the average man in the defendant’s position and knowing what he knew or should have known, should have regarded injury to the plaintiff as likely to result if care were not taken. This probability of injury raises the duty of care.” In Cote v. Litawa, 96 N. H. 174, 71 A. 2d 792, 793 , the defendant while parking his automobile, “heard a rattle and a little girl scream”.

He picked up the child, Patricia, carried the child upstairs to her mother, Lorraine, who was pregnant. As a result of the shock and fright from this incident, the mother was hospitalized for thirty days and treated for a longer period. In a suit for damages, the court said: She “must show a duty on the part of the defendant to so conduct himself with respect to the child Patricia, as not to subject the mother, Lorraine, to an unreasonable risk of shock or fright, with ensuing physical consequences, upon her learning immediately after its occurrence of injury inflicted by him on her child. In our opinion there is no such right in the plaintiff, and no such duty on the defendant.

Such consequences are such an unusual and extraordinary result of the careless operation of an automobile that to recognize such a right and impose such a duty would, in our opinion, place an unreasonable burden upon users of highways.” In Baltimore City Passenger Railroad Co. v. Kemp, 61 Md. 74 , there was testimony that a woman, shortly ⁵³⁴ after the injury complained of, developed a cancer of the place on her person where she was injured and medical testimony was offered on both sides of the question, whether the cancer was a result of the injury. It was said in that case 61 Md. at page 81 : “The general rule is stated in Addison on Torts, 5, with as much clearness and precision as will be found in any other text writer, and he states the rule to be ‘that whoever does an illegal act is answerable for all the consequences that ensue in the ordinary and natural course of events, though those consequences be immediately and directly brought about by the intervening agency of others, provided the intervening agents were set in motion by the primary wrongdoer, or provided their acts causing the damage were the necessary or legal and natural consequence of the original wrongful act.’ ”. In Green v. T. A. Shoemaker & Co., 111 Md. 69 , 73 A. 688 , 23 L. R. A., N. S., 667, a woman sued to recover for alleged injuries to her person and property, caused by the blasting of rocks by the defendants in the vicinity of her dwelling. The declaration alleged that the rocks hit her house, caused plaster to fall which struck her, whereby her health was greatly damaged and her nervous system disordered.

It was said in that case, 111 Md. at page 81 , 73 A. at page 692 , “It must be conceded that the numerical weight of authority supports the general rule that there can be no recovery for nervous affections unaccompanied by contemporaneous physical injury, but the sounder view, in our opinion, is, that there are exceptions to this rule, and that where the wrongful act complained of is the proximate cause of the .injury, within the principles announced in Kemp’s Case, supra, and where the injury ought, in the light of all the circumstances, to have been contemplated as a natural and probable consequence thereof, the case falls within the exception and should be left to the jury.” This is the same doctrine as was followed in the case of Palsgraf v. Long Island R. R. Company, supra. ⁵³⁵ In Bowman v. Williams, 164 Md. 397 , 165 A. 182 , the plaintiff was standing in the dining room of his home, having left