Hulin v. Western Union Telegraph Co.

Stacy, J. The ruling of his Honor in granting the defendant’s motion for judgment as of nonsuit on the initial cause of action, or on the one growing out of the defendant’s alleged negligent failure to deliver the first message within a reasonable time, is not before us for review, as the plaintiff has not appealed. But it would seem that this position is entirely correct’ in so far as any substantial damages are concerned; for, even if the telegram had been delivered without delay, the plaintiff could not possibly thereafter have reached the bedside of his mother prior *543 to ber death. The question of a technical breach of duty, involving only nominal damages, is not presented for consideration. Smith v. Tel. Co., 167 N. C., 248, and cases there cited. Notwithstanding the judgment of nonsuit on the initial cause of action, it will be observed that the issues submitted to the jury are not confined to the second cause of action, or to the one based upon the defendant’s alleged negligent failure to transmit and deliver the death message in due time, or with reasonable dispatch. The first issue in terms refers to both of the telegrams, or to either of them. Hence, it does not conclusively appear, because the verdict does not necessarily mean that the defendant was negligent with respect to the handling of the second, or death message. The alternative wording of the issue is further intensified by the following portion of his Honor’s charge, to which the defendant has excepted and the same is assigned as error: “Has the plaintiff satisfied you from the evidence, or its greater weight, that the defendant received the message spoken of, that it negligently failed to transmit them, or either of them? If the plaintiff has so satisfied you, answer the first issue ‘Yes.’ ” Having entered a judgment of nonsuit on the first cause of action, we think this instruction was erroneous, because it required an affirmative answer, though the jury may have found no negligence as alleged for the basis of the second cause of action. It may have been answered from the evidence bearing upon the transmission and delivery of the first message, or the one sent from Star. For the error, as indicated, the case will be remanded, to the- end that there may be another trial, or a venire de novo. New trial.