tection by the carrier, though he is a free passenger. (*) Any breach of this duty owed by the carrier to the passenger would seem to be a tort; recovery may be had either in an action of tort or in an action for breach of the contract. The contract made by a common carrier of passengers (and we shall see that the same is true of contracts made by all incorporated telegraph companies) is not a simply voluntary engagement such as an ordinary contract inter partes, but an agreement made in pursuance of an obligation towards all the world imposed either by his mere status as common carrier, or under his charter, or both. In other words, it is a contract which he is under a duty to make, and under a duty to perform, so that a breach is not a mere breach of contract, but also, as we have said, a tort.

In Hobbs v. London & Southwestern Ry. Co.,(') Blackburn, J., said (and this explains why this case in which the pleadings were clearly drawn in tort was. treated as contract): "The action is in reality upon a contract; it is commonly said to be founded upon a duty, but it is a duty arising out of a contract." But surely the duty arising out of a contract is merely another term for the obligation of a contract. In every carrier's. contract, there is of course this contractual or conventional duty; but as just stated, the contract itself is entered into in pursuance of a duty owed to all the world. Hence it is more true to say that every breach of a carrier's contract is also the breach of an antecedent duty.

860. Personal injury.-Where the passenger is injured physically by the negligence of the carrier, the measure of recovery is usually that adopted in ordinary

(*) Philadelphia & R. R.R. Co. v. Derby, 14 How. 468, 485, per Grier, J.; New York C. R.R. Co. v. Lockwood, 17 Wall. 357.

() L. R. 10 Q. B. 111, 119.

§ 861.

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cases of physical injury, (*) that is, compensation for pain and suffering and for loss of time while incapacitated from work, medical expenses, and compensation for any permanent injury or loss of earning power. The fact that services for nursing were rendered gratuitously does not reduce the amount to be recovered on account of reasonable medical expenses. (") In order to show the value of his lost time, a professional man may show his past earnings; (°) thus a teacher of French has been allowed to show the number of his scholars and the amount of his earnings in previous years. () The general rules as to certainty of proof are to be observed. Thus in a late case in Georgia,(*) an action for permanent personal injury, it was held erroneous to admit evidence that the plaintiff, a postal clerk, was in the line of promotion, and might have been promoted soon after the accident. Simmons, J., said: "While it is proper in cases of this kind to prove the age, habits, health, occupation, expectation of life, ability to labor, and probable increase or diminution of that ability with lapse of time, the rate of wages, etc., and then leave it to the jury to assess the damages, we think it improper to allow proof of a particular possibility, or even probability, of an increase of wages by appointment to a higher public office, especially where, as in this case, the appointment is somewhat controlled by political reasons." The loss of promotion was clearly conjectural, even without considering the political reasons which may influence appointments. 861. Nervous shock.-In Bell v. Great Northern Ry.

(*) See § 481 et seq.

(*) Pennsylvania R.R. Co. v. Marion, 104 Ind. 239.

(c) See § 180..

() Simonin v. New York, L. E. & W. R.R. Co., 36 Hun 214.

(*) Richmond & D. R.R. Co. v. Allison, 12 S. E. Rep. 352.

Co.() it appeared that while the plaintiff was travelling as a passenger in an excursion train over the defendants' line of railway, the train, which was too heavy to be carried by the engine up an incline, was divided by the defendants' servants, the carriage occupied by the plaintiff remaining attached to the engine. The after part of the train having thereupon descended the incline with great velocity, the engine was reversed, and with the remaining carriages (including that in which plaintiff was seated) followed down the incline, also at a high rate of speed, until violently stopped. It was proved that plaintiff was put in great fright by the occurrence, and that she suffered from nervous shock in consequence of such fright. She was incapacitated from performing her ordinary duties, and there was evidence that paralysis might ensue. Upon the trial, the judge charged the jury that if great fright was, in their opinion, a reasonable and natural consequence of the circumstances proved, and if injury to the plaintiff's health was, in their opinion, a reasonable and natural consequence of such great fright, and was actually occasioned thereby, damages for such injury would not be too remote. The defendant requested the judge to charge that if damages or injury were the result of, or arose from, mere fright, not accompanied by actual physical injury, even though there might be a nervous or mental shock occasioned by the fright, such damages would be too remote. This charge the court declined to give.

Palles, C. B., said, of the defendants' request (p. 437):

"This presupposes that the plaintiff sustained, by reason of the defendants' negligence, 'injury' of the class left to the consideration of the jury by the summing-up, i. e., injury to health,

(*) 26 L. R. Ir. 428.

$861.

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which is bodily or physical injury; and the proposition presented is that damages for such injury are not recoverable, if two circumstances occur: (1) if the only connection between the negligence and this bodily injury is that the former caused fright, which caused nervous or mental shock, which shock caused the bodily injury complained of; and (2) that this so-called bodily injury did not accompany the fright, which I suppose means that the injury, although in fact occasioned by the fright, assumed the character of bodily injury subsequently to, and not at, the time of the negligence or fright. To sustain this contention, it must be true whether the shock which it assumed to have caused was either mental or nervous; and as the introduction of the word 'mental' may cause obscurity, by involving matter of a wholly different nature, unnecessary to be taken into consideration here, I eliminate it from the question. If there be a distinction between mental shock and nervous shock, and if the proposition be not true in the case of nervous shock, then the objection cannot be sustained.

"It is, then, to be observed: (1) that the negligence is a cause of the injury, at least in the sense of a causa sine qua non; (2) that no intervening independent cause of the injury is suggested; (3) that jurors, having regard to their experience of life, may hold fright to be a natural and reasonable consequence of such negligence as occurred in the present case.

"If, then, such bodily injury as we have here, may be a natural consequence of fright, the chain of reasoning is complete. But the medical evidence here is such that the jury might from it reasonably arrive at the conclusion that the injury, similar to that which actually resulted to the plaintiff from the fright, might reasonably have resulted to any person who had been placed in a similar position. It has not been suggested that there was anything special in the nervous organization of the plaintiff which might render the effect of the negligence or fright upon her different in character from that which it would have produced in any other individual. I do not myself think that proof that the plaintiff was of an unusually nervous disposition would have been material to the question; for persons, whether nervous or strong-minded, are entitled to be carried by railway companies without unreasonable risk of danger; and my only reason for referring to the circumstance is to show that, in this particular case, the jury might have arrived at the conclusion that the VOL. II.-41

injury which did, in fact, ensue was a natural and reasonable consequence of the negligence which actually caused it.

"Again, it is admitted that, as the negligence caused fright, if the fright contemporaneously caused physical injury, the damage would not be too remote. The distinction insisted upon is one of time only. The proposition is that, although, if an act of negligence produces such an effect upon particular structures of the body as at the moment to afford palpable evidence of physical injury, the relation of proximate cause and effect exists between such negligence and injury, yet such relation cannot in law exist in the case of a similar act producing upon the same structures an effect which, at a subsequent time-say a week, a fortnight, or a month-must result, without any intervening cause, in the same physical injury. As well might it be said that a death caused by poison is not to be attributed to the person who administered it because the mortal effect is not produced contemporaneously with its administration. This train of reasoning might be pursued much farther; but in consequence of the decision to which I shall hereafter refer, I deem it unnecessary to do so."

The learned Chief Baron then referred to the case of Victorian Railway Commissioners v. Coultas,(*) in which the Privy Council held that mere mental terror was not a consequence which would ordinarily flow from the negligence proved in that case. This case, however, was not approved; but the court followed an earlier unreported Irish case, (b) where compensation for injury resulting from nervous shock was allowed in a much stronger case than the one at bar. The learned Chief

Baron continued (p. 442):

"In conclusion, I am of opinion that, as the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any court to lay down, as a matter of law, that if negligence cause fright, and such fright, in its turn, so affects such structures as to cause injury to health, such (*) 13 App. Cas. 222.

() Byrne v. Great Southern & W. Ry. Co., in the Court of Appeal.