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and no injury except that resulting from fright. Judgment was given to the plaintiff. This case clearly establishes in that jurisdiction the rule that damages which result from a nervous shock occasioned by fright unaccompanied by an actual impact, but causing physical injury to follow, may be recovered in an action for negligence.29 But, perhaps the fullest discussion and citation of authorities bearing upon this question will be found in the recent case of Simons v. Rhode Island Co., where the rule adopted in the Dulien case, supra, was approved and followed.30 This is the leading case in this country on this interesting subject.

48. Fright without physical injury.-But mere fright or mental suffering without a resulting physical injury does not give a right of action for damages. This all the courts seem to hold; and the chief reason given for the rule is that as there is no physical evidence of the injury the court would be required to rely wholly upon the statements as to the kind and effect of suffering which the plaintiff might make, and that this would be too speculative and inadequate.31 Where plaintiff, frightened by defendant's wrongful act, seeks to protect himself, and is injured by jumping or otherwise, defendant may be held for the damages sustained, though if plaintiff

29 (1901) 2 K. B. 669.

30 28 R. I. 186, 66 Atl. Rep. 202, 9 L. R. A. (N. S.) 740. But see the interesting case of Nelson v. Crawford, 122 Mich. 466, 80 Am. St. Rep. 577, where defendant, only to have a little fun, dressed himself in woman's clothes, and at dusk followed a neighbor's wife into the house, but made no demonstration except to tap the end of a parasol on the floor. Plaintiff was frightened, resulting in miscarriage, but no recovery was allowed. 31 Huston v. Freemansburg, 212 Pa. St. 548.

had remained quiet he would not have been injured.32 And in such case the damages are not limited to the physical injury but may be made to cover any mental anguish naturally incident to the wrong done.

49. No recovery for sympathetic suffering.—But there can be no recovery for fright caused by another's danger, even though such mental disturbance results in a physical injury, as in a case where a mother is frightened and distressed because of an effort to put her children off a car on which they were riding.33

So in a case cited in 2 Q. B. (1907) 61, the court held that where a man was killed in the sight of the plaintiff by the defendant's negligence, and the plaintiff became ill, not because of any fear of injury to himself but from seeing another person killed, there could be no recovery for plaintiff's shock and mental suffering.34

32 Barber v. Reese, 60 Miss. 106; Buchanan v. West Jersey R. R., 52 N. J. L. 265; Smith v. St. Paul M. & M. R. Co., 30 Minn. 169.

33 Sanderson v. Northern Pac. R. Co., 88 Minn. 162. 34 Smith v. Johnson, 2 Q. B. (1907) 61.

CHAPTER VII.

AVOIDABLE CONSEQUENCES.

50. Duty to avoid increasing damages.-Closely connected with the rule that damages must be direct and proximate is the other rule that plaintiff may not recover damages for those consequences of defendant's act which were readily avoidable by the plaintiff. When an act is done which is injurious to the plaintiff he may not sit by and permit damages to accumulate unreasonably, relying upon the hope of compelling defendant to answer for all his losses. Compare Loker v. Damon,35 where plaintiff sought to recover of defendant the loss of his grass for nearly a whole year because defendant had destroyed a few rods of his fence. But the court said it was plaintiff's duty to avoid the loss of his crops by repairing the fence and that if he failed to do so he could recover of defendant only an amount sufficient to have repaired the fence. Also where a physician sought to take passage on a train which refused to stop for him, and instead of waiting for another train or employing a conveyance to take him to his destination, he walked the entire distance and as a result became ill and suffered greatly, the court held that damages resulting therefrom were consequences which could reasonably have been avoided and refused recovery for them. (I. B. & W. Ry. v. Birney, 71 Ill. 391.)

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51. Plaintiff's duty when personal injuries are received. It is clearly the duty of one who has received personal injuries by the wrongful act of another, to use reasonable and ordinary diligence to effect a cure. Damages which might have been thus avoided are not chargeable to defendant. One so injured should procure medical and if necessary surgical aid, and if he unreasonably fails to do so, evidence of this fact may be given for the purpose of mitigating damages.36

Should the physician make a mistake in treating plaintiff even though damages are thereby increased, if plaintiff was not negligent in connection with the matter, he may hold defendant for all the damages.37

52. Injuries to property.-The same principle applies to acts which result in injuries to property, as in cases of personal injuries. So where a sewer was defectively constructed by a municipality and plaintiff's property, by reason thereof, was injured in a freshet, the court held it to be the duty of plaintiff, thereafter, to put his property in repair and thereby prevent future injury to it.38 And where one's property is endangered by the negligent act of another, it is the owner's duty to do all he reasonably can to protect it from injury. Failing to do so, he cannot recover for loss thereafter sustained which might reasonably have been avoided.39

36 Louisville N. A. & C. Ry. Co. v. Falvey, 104 Ind. 409; Allender v. C. R. & I. & P. R. Co., 37 Ia. 264.

37 St. Louis & S. F. Ry. Co. v. Doyle, 25 S. W. 461 (Tex.); Loeser v. Humphrey, 41 O. St. 378, 52 Am. Rep. 86.

38 German Theological School v. Dubuque, 64 Ia. 736.

39 Rexter v. Starin, 73 N. Y. 601; Watkins v. Rist, 67 Vt. 284.

53. In actions for breach of contract.-Where defendant breaks his contract with plaintiff, resulting in damages, it is plaintiff's duty, generally, to do whatever is reasonably necessary to reduce the damages. It is on this principle that where plaintiff has been employed to give to defendant his personal services for a definite period of time and has been wrongfully discharged before the full time of employment has elapsed, it becomes plaintiff's duty to seek similar employment elsewhere and to accept it if it can be found, and in this manner reduce the damages caused by defendant's breach of contract.40

Where defendant had agreed to keep certain property belonging to plaintiff insured and to notify plaintiff of the amount of the premiums which plaintiff was to pay, but defendant neglected to have the property insured, when it burned, and plaintiff thereby sustained great loss, the court, finding that plaintiff knew of defendant's neglect and failure to insure, held that plaintiff could not recover of defendant such loss because it was his duty to have insured the property himself, thus avoiding the loss resulting from defendant's breach of contract.41 But the rules above stated do not apply to those contracts which plaintiff can perform by employing the services of others, such as building contracts, or contracts to lease a farm.42

40 Sutherland v. Wyer, 67 Me. 64, LEADING ILLUSTRATIVE CASES; Howard v. Daly, 61 N. Y. 362.

41 Brant v. Gallup, 111 Ill. 487, 53 Am. Rep. 638; Frick Co. v. Falk, 50 Kan. 644. See also Benziger v. Miller, 50 Ala. 206; Williams v. Chicago Coal Co., 60 Ill. 149.

42 Sullivan v. McMillan, 37 Fla. 134, 19 So. 340.

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