Cooley v. Pub. Serv. Co.

90 N.H. 460, 10 A.2d 673 (1940)



If it be negligent to save the life of the highway traveler at the expense of bodily injury resulting from the fright and neurosis of a telephone subscriber, it must be equally negligent to avoid the fright at the risk of another's life. The law could tolerate no such theory of "be liable if you do and liable if you don't." The law does not contemplate a shifting duty that requires care towards A and then discovers a duty to avoid injury incidentally suffered by B because there was due care with respect to A. Such a shifting is entirely inconsistent with the fundamental conception that the duty of due care requires precisely the measure of care that is reasonable under all the circumstances. The duty to take precautions rests upon the rule of reasonable anticipation, even though that rule does not prevail as to damages once the duty appears.


The subscriber suffered traumatic neurosis, an emotional injury accompanied by loss of sensation on the left side, after wires fell during a storm and caused an explosive sound in the telephone she was using. She did not claim that the company was negligent, but rather that it had a duty to maintain devices at cross-overs to prevent wires from coming into contact with a telephone wire. The two devices suggested were a wire-mesh basket suspended from the poles or insulation.


Is the telephone company liable for the injuries of a telephone user because t of its alleged failure to maintain the devices and wires?




The court examined both alternatives and found that each presented flaws and potential dangers, particularly that there was danger of electrocution in the street. As long as the telephone company's safety devices were properly installed and maintained, there was no danger of electrocution in the house. The only foreseeable danger to the telephone subscriber was fright and neurosis from noise. Balancing the two, the danger to those such as the subscriber was remote, while that to those on the ground near the broken wires was obvious and immediate. The balance would not have been improved by taking a chance to avoid traumatic neurosis at the expense of greater risk to the lives of others.

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