Hidgon v. . Telegraph Co. , 132 N.C. 726 ( 1903 )

DOUGLAS, J., dissenting. The telegram, in which the death of the plaintiff's mother and the time and place of her burial were announced, was delivered to the plaintiff in Charlotte, N.C. at 8:30 a. m. The only train which could have been taken to the place of interment at the hour appointed left Charlotte, by schedule time, at 8:30 a. m. — the same hour of the receipt of the telegram. The plaintiff testified that the trains were frequently late, and that one could not rely on (727) trains being on time. He further said that he asked his partner in business (Pierce) to inquire by telephone at the Southern station, if the train to Atlanta was on time, and on being informed by his partner that he had received an answer that the train was on time, he abandoned any purpose to attend funeral. There was evidence, uncontradicted, That the train was two hours and a half late on that morning. Under all the evidence, it seems clear that it was the plaintiff's duty to have inquired as to the hours of the running of that train. He felt that it was incumbent on him to do so. He did not make inquiry himself, but got another to do so for him. The evidence does not disclose of whom the inquiry was made by Pierce, and the answer to it, if the uncontradicted evidence was to be believed, conveyed incorrect information. That was evidence of negligence on the part of the plaintiff's agent, and, in law, of his own. On this point the defendant asked the following instruction:

"If the jury find from the evidence that the only train upon which the plaintiff could have gone to attend his mother's funeral left Charlotte more than two hours after the receipt of the telegram announcing her death, and if the jury further find that the plaintiff, in order to ascertain whether he could take the train, relied upon telephone communication, and if by the negligence of any other person, either his partner, who telephoned, or the person to whom he telephoned, the plaintiff was misinformed as to the time when the train left, then the jury are instructed that the negligence of the defendant, if any there was, was not the proximate cause of the plaintiff's injury, and the jury, in answering the sixth issue, are directed not to assess any damages on account of plaintiff's failure to reach the funeral."

His Honor gave in substance an instruction like that requested by defendant, but it contained also a statement that any negligence of the defendant might be also considered in connection with the information (728) received by Pierce as to the movement of the train. We think the defendant was entitled to the instruction in the form in which it was requested. The defendant's negligence in its failure to deliver the telegram was not connected with the train service and the duty of the plaintiff to make proper inquiry concerning the same. In analogy to our ruling here, Meadows v. Telegraph Co., ante, 40, may be referred to. The Court there said: "Had the message been delivered after negligent delay by defendant, but still in time for plaintiff to have caught the train, and he failed to do so, this would have been contributory negligence." In the present case there was evidence undisputed tending to show that the defendant's negligence in not delivering the telegram was not the proximate cause of the plaintiff's failure to attend his mother's funeral, and the defendant was entitled to an instruction disconnected with its own negligence on that evidence.

New trial.

WALKER, J., did not sit.