
    William P. Wood, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Negligence—injury to the occupant of a wagon from the jar, occasioned by his horse bolting across the tracks in consequence of an engine suddenly, without warning, appealing upon a crossing —injury from shock as distinguished from fright, considered — disease from consumption caused thereby may be considered by the jury.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that while the plaintiff was driving in a buggy across the defendant’s railroad tracks, at a highway crossing where the view of an approaching train was obstructed, an engine which had given no signal of its approach suddenly appeared in sight; that the plaintiff jerked his horse back; that the horse started across the tracks and that the plaintiff did not succeed in. stopping him until he bad cleared them; that as the horse started to cross the tracks he made a spring which threw the plaintiff against the seat of the buggy with such violence as to break it; that immediately after the horse stopped the plaintiff spat blood freely and continued to do so until after he reached home; that his condition had grown steadily worse and that at the time of the trial he was and for some time prior thereto he had been suffering from tuberculosis.
    Physicians sworn on behalf of the plaintiff attributed the plaintiff’s condition to the muscular strain to which the plaintiff had been subjected, and the severe shock which he received when he was thrown against the seat and the jar when the wagon passed over the rough surface of the defendant’s tracks. The physicians agreed that the injury was not the result of fright.
    It was not disputed that the evidence was sufficient to require the submission to the jury of the question whether the defendant was negligent and whether the plaintiff was free from contributory negligence.
    
      Held, that it was error for the court to dismiss the complaint;
    That as the plaintiff’s injuries were caused by a shock resulting from efficient physical canses and not from fright, the plaintiff was entitled to recover for such injuries;
    That if there was a progressive, complete connection between the tuberculosis from which the plaintiff was suffering and the injury which he received at the time of the.accident, it would he proper for the jury to take such disease into consideration when estimating the amount of his damages.
    Appeal by the plaintiff, William P. Wood, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the’ITth day of January, ■1903, upon the dismissal of the complaint by direction of the court after a trial at the Steuben Trial Term.
    
      Francis E. Wood, for the appellant.
    
      Frederick Collin and John B. Stanchfield, for the respondent.
   Spring, J.:

On the 26th day of April, 1902, the plaintiff, a young man twenty-one years of age, was riding in a buggy with his father along Chestnut street in the city of Corning. The buggy was drawn by one horse which the plaintiff was driving and which was owned by him and was steady and gentle. The defendant’s tracks, five in number,' cross Chestnut street, and the view of a train approaching from the west is cut off to a traveler going south along this street. On the day in question there were cabooses on the two northerly lines of track numbered 1 and 2, and these cabooses came close to the sidewalk on the west side of the street. The plaintiff and his father as they approached the crossing observed that the gates were down and a freight train was going east. After this passed the gates were raised and the plaintiff drove along until his horse was upon track 3, when an engine upon the same track and which gave no signal of its approach and was concealed from the view'of the occupants of the buggy came toward them. Mr. Wood, Sr., thus described the occurrence, including the efforts to avoid a collision : “We drove on to the track, and as we drove by the cabooses the mare stepped over on to the other track, and there was an engine come right spat upon Will and I, and he jerked the mare back and throwed her to one side and hollered, and she started down the track with him, and as she started he fell over. He went forward right on my side. * * * After he went forward on my side he was thrown back against the seat, and the mare went over the crosswalk, down around the rails and circled around and came up next to the standard, right through over to the gas house. * * * At the time my son was thrown back from his position over in my direction into the buggy the horse made a spring; that is what throwed him back there. I have examined the seat of the buggy since then in the corner he was sitting. Q. What was the condition of the seat? A. Broke the seat from the box. The seat was not broken before, and it was broken immediately afterwards when I examined it.” He further testified that immediately upon getting the horse stopped the plaintiff spit blood freely and this continued until after he reached home. The hemorrhages continued, and the physicians testified he has been growing progressively worse; that tubercular trouble developed, and that the plaintiff at the time of the trial and for some time before -was suffering from tuberculosis. Dr. Argue, the attending physician, attributed the injuries “ to the muscular strain and also the severe shock which he received when he fell back in the seat and when he passed over the rough surface.” Dr. Goff, the other physician, corroborated Dr. Argue, testifying: “ In my opinion the hemorrhage was the result of the muscular exertion accompanied by the shock to the body or jar to the body, by reason of the fall back against the seat and the consequent jar or jam of the wagon in passing over the rough ground.” These witnesses agreed in saying the injury was not the result of fright.

There is no claim that the proofs were not amply sufficient to require the submission to the jury of the defendant’s negligence and the freedom of the plaintiff from fault. The learned counsel for the respondent insists that, as there was no physical contact with the engine and as the injuries resulted from the shock, the defendant is not liable, relying upon Mitchell v. Rochester Railway Co. (151 N. Y. 107) and similar cases. In that case, while the plaintiff was about to board one of the cars of the defendant, a horse car of the defendant approached so near that the plaintiff stood between the heads of the horses, and she was thereby frightened so that she became insensible, and serious illness with a miscarriage resulted. The Court of Appeals. reversed the order of the General and Special Terms and affirmed the nonsuit. It appeared unmistakably that the injuries were induced solely by fright, and there was no immediate personal injury. The doctrine of that case, as we understand it, rests upon two grounds:

First. That to allow a recovery for fright alone would open the door for speculation and uncertainty, and would be contrary to public policy.

Second. The in juries in that case were not the proximate or natural result of the negligence complained of, but were “ the result of an accidental or unusual combination of circumstances, which could not have been reasonably anticipated, and over which the defendant had no control, and, hence, her damages were too remote to justify a recovery in this action” (p. 110). That case is not akin to the present one. We must eliminate any question of fright as an efficient cause of the injuries, for the physicians are distinct and explicit in not ascribing them to any such source, and assign good reasons for their belief.

The shock due to the severe physical exertion with the attendant rapid jolting ride over the defendant’s tracks and the sudden impact with the buggy seat, is wholly disconnected from fright, and affords adequate cause for the injuries. As was said in Jones v. Brooklyn Heights R. R. Co. (23 App. Div. 141), after referring to the Mitchell case: “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 no recovery; but when it is associated with actual injury it may be considered, and where the injury and the fright concur and result in producing shock, out of which arises damage, it is sufficient upon which to base a recovery.” Another potent distinction from the Mitchell case is that the injuries resulted immediately from the shock, and the same manifestations of their existence have been continuous ever since.

When the plaintiff was sensible of the imminent peril confronting him, like any sane man he put forth his whole strength to avert the catastrophe. This not only was the involuntary impulse of,a person in threatening danger, but it was the duty of the plaintiff to endeavor to avoid the collision. If by error of judgment in this perilous situation he had driven across the track or turned liis horse toward the engine and an actual collision had occurred with consequent injuries to him, liis right to recover therefor would be unquestionable. If in his effort to avoid the calamity the plaintiff had too suddenly jerked his horse around, causing the buggy to be overturned, and he had been thrown out and his leg broken, the defendant would have been liable. (Twomley v. C. P. N. & E. R. R. R. Co., 69 N. Y. 158.) Because he exercised the wisest judgment and averted the collision, but-sustained injuries by reason of his extraordinary efforts in so doing, it is urged the injuries are not within the pale of those for which a recovery is permissible. The philosophy or logic to sustain this superfine distinction finds no warrant iii good sense or authority. The shock to the plaintiff was due to a combination of circumstances. The tremendous physical strain, the jarring ride over the tracks, the jolt against the seat, furnished tangible causes for the injury, and we are not left to conjecture as to their origin.

As already intimated, the plaintiff’s decline has been substantially uninterrupted until consumption has supervened, ascribable to the shock and the other features of the accident already mentioned, as the physicians testified. It is contended strenuously that the consumption is not the natural or proximate result of the injuries, and consequently that that disease may not be taken into consideration in estimating the damages. We are not now called upon to decide that specific question, as upon a new trial, with all the evidence 'in, the case may be entirely different in this aspect of it. We assume, however, if there is a progressive complete connection between any disease and the injuries inflicted, that such disease may be taken into estimation by the jury, as the plain tiff is entitled to recover for any damages which are the proximate result of the injuries. (Ehrgott v. Mayor, 96 N. Y. 264, 281; Eichholz v. Niagara Falls H. P. & M. Co., 68 App. Div. 441; Tait v. Buffalo Ry. Co., 55 id. 507; Purcell v. Lauer, 14 id. 33; Hurley v. N. Y. & Brooklyn Brewing Co., 13 id. 167; Turner v. Nassau Electric R. R. Co., 41 id. 213.) It is a matter to be determined by the jury, and the casual connection between the injuries and the existing disease must depend in a considerable degree upon the evidence of physicians. The right to embrace in the recovery damages for an existing disease may not be lost by reason of the length of time which has elapsed between its discovery or inception and the infliction of the original injuries nor upon the character of the disease. The fact may be established that the disease was the result of the injuries, that the association of the two is by direct line and their connection is not to be based upon conjecture or speculation. If their unbroken connection is thus demonstrated then the plaintiff’s cause of action may include the disease.

The judgment should be reversed -and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  