Hack v. Dady (142 A.D. 510, 1911)

Jenks, P. J. :

The record is materially different from that of the first appeal (Hack v. Dady, 134 App. Div. 253). Plaintiff’s new expert witness, Dr. Stevenson, testifies that even so slight a physical injury as was suffered in this case might cause the shock that resulted in the alleged physical impairment of the plaintiff. He says : “ One cause of abortion or mis-carriage which is more common than fright is injury, a physical injury. When that physical injury causes an abortion there is not always .by any means a violent attack between the body of the pregnant woman and the object. If a woman pregnant were struck by a pea, for instance, a pea or a bean, any small object where there would be no violent attack, the sudden nervous shock to her system might cause it. It is possible ; that is not fright. There has been contact with the body. * * * When an object like four or five drops of melted lead having passed through the air and must necessarily have been cooled to some extent in that passage struck her on the left hand and only. causes a slight sting so that she brushes it off, whether or not I would think that that would bring about such a condition, such a situation, would depend upon the fact whether she was burned or not and how much shock there was to' her nervous system * * * I would not say that fright and that act of being startled at that time- is the main cause, if there was such a cause, of the mis-carriage. I would say this: That this woman suffered from, a nervous shock probably accompanied by fright which acted reflexly ../through the nervous system caused the uterine contraction and t/rings on this condition. ■ * * * There is nothing remarkable about it. I was- asked whether severe fright might not cause-a mis-carriage; severe fright, certainly may cause a mis-carriage.< But in this case, the.facts that I assume in the question are that she sustained this burn upon her left hand and subsequently :--was found by Dr. Gil martin suffering from burns on the left hand and shock. If the shock that she was suffering from that Dr. Gilmartin found there was produced in any way by fright, it. would be the result of fright and the physical shock concurring:.

. Both acting together produced this result of shock. It is known that the shock of a severe toothache will cause a reflex contraction of the-uterus-and bring on the mis-carriage. -Any shock. If a person is suffering from shock .produced by any cause. That shock' is sufficient to break down the nervous system-and to produce the reflex action which in turn causes an abortion ultimately. . There-is" nothing more \ common in my profession causing abortion than ¡traumatism or injury.” The. defendant’s expert, Dr.. Benedict, upon cross-examination, although he said that , the burns had no connection with the plaintiff’s physical condition on- the night after the accident, testified: “As to whether as a result of. these burns upon her hand, plus the. environment which she .found- herself' in, that that produced a condition of mind which in turn produced a condition of nervous shock, which in turn caused the condition that occurred that night,-1 don’t know. In my opinion the burns she. received on her left hand plus the environment she found herself in,, to wit, the lead about there and on her clothes, with her two . children, produced a condition of mind which in .turn produced a nervous shock; I think that is right. So then we have it that the result of her experience, that is to say, the combined experiencia' of the burn upon her hand plus the environment.she found herself in with'her two children, etc;, produced a nervous shock. And' that nervous shock in turn produced- or caused this uterine hemorrhage, ‘ the. vomiting and the pains in the back at night; I think that is - so.” I think that this testimony is sufficient to support a verdict. (Jones v. Brooklyn Heights R. R. Co., 23 App. Div. 141.) In that case this court., per Hatch, J., say,: “The case does not, therefore, fall within the doctrine of Mitchell v. Rochester Railway Co. (151 N. Y. 107). In that case there was no physical injury and no. physical contact- with, the person of the plaintiff ; such injury as was sustained arose solely from.fright. The court held that mere ' fright,' disassociated, from physical injury, would -ndt create a cause of action. The court so charged in the present cas«. An injury, however, sufficiently severe to produce a shock, or which, in-fact, • produces a shock, presents an,entirely different question. Shock-is not fright; the latter may be a producing cause of the! former, and where it is the sole producing cause there can be n