Mullinax v. Western Union Telegraph Co.

AlleN, J. The negligence of the defendant cannot be disputed. It failed in its duty in that it transmitted the message *550 incorrectly, and also in making no inquiry and no effort to deliver to tbe plaintiff, after being informed tbat it was probably intended for bim. It is, however, true, as tbe defendant contends, tbat negligence alone will not entitle tbe plaintiff to recover, and that be must go further and show tbat this negligence was tbe proximate cause of bis injury. It is also true tbat contributory negligence on tbe part of tbe plaintiff is fatal to bis action, and" tbat if be received information of tbe death of bis sister from some other source, in time to attend tbe funeral, and under such circumstances tbat be could have gone, and failed to go, tbat be would be guilty of contributory negligence, and tbe negligence of tbe defendant would not be proximate. There is practically no dispute as to tbe law. Tbe controversy is as to tbe facts, and as to tbe meaning and effect to be given to tbe evidence. If we construed tbe evidence of tbe plaintiff as tbe defendant does, or if we were permitted to dispose of tbe case on tbe evidence of tbe defendant alone, we might be justified in denying a recovery; but in our opinion bis Honor held correctly tbat on tbe whole evidence tbe question of proximate cause and contributory negligence was for tbe jury, and this be submitted to them under proper instructions. The plaintiff does not say tbat the witness Cates told bim tbat there was a telegram for bim saying bis sister was dead, but tbat a telegram bad come for some one with a name like J. H. Mullin, tbat Jennie Rans or Jennie Renn was dead. He denies tbat be was told tbat tbe telegram came from Eranfe-linsville. Tbe conversation with Oates was at 8 or 9 o’clock at night, when tbe telegraph office was closed; be bad no money and tbe mills were closed, where be could have gotten money. According to tbe plaintiff, be received tbe additional information tbe next morning, tbat tbe telegram was from Erank-linsville, and then concluded it was bis sister. If tbe telegram bad been transmitted correctly and bad been promptly delivered, tbe plaintiff would have received it before *551 4 o’clock p. m. of 28 February, wben tbe mills were open, and be says be could bave gotten tbe money for bis expenses, and would bave left Hillsboro on tbe 5 o’clock train, and if so, would bave reached Franklinsville in time for tbe funeral. Tbe defendant cannot, under these circumstances, escape liability by imposing upon one, who owed no duty to tbe plaintiff, tbe obligation of conveying information which tbe plaintiff says was imperfect, and at night, wben tbe plaintiff bad no money and could not get it, and wben tbe office of tbe defendant was closed. We bave considered tbe first three propositions, insisted on by tbe defendant, largely on tbe evidence of tbe plaintiff, because they are presented under a motion to nonsuit, and under prayers for instructions directing a verdict in favor of tbe defendant on tbe first and second issues, all of which should bave been denied, if there was any aspect of tbe evidence upon which a verdict could bave been returned in favor of tbe plaintiff. His Honor imposed upon tbe plaintiff all that is required by law. He charged tbe jury that' tbe burden was on tbe plaintiff to prove negligence, and that this negligence was tbe proximate cause of bis injury, that is, that it prevented him from attending tbe funeral. He also said, as to ’the duty of tbe plaintiff“It was bis duty to exercise tbe care of a man of ordinary prudence, notwithstanding tbe fact if tbe defendant bad been negligent in getting tbe address wrong and tbe name wrong and tbe signature wrong, still be owed tbe duty not to be negligent himself, but to exercise tbe care of a man of ordinary prudence under all tbe circumstances. If be did that, you would answer this issue, £No.’ If tbe defendant has satisfied you from all this evidence, evidence of tbe plaintiff and tbe defendant all taken together, that be failed to act as an ordinarily prudent man would bave acted under all tbe circumstances, you will answer it ‘Yes.’ It was bis duty, if information came to him that was reasonably calculated to put him on inquiry as to whether or not tbe dead woman was bis sister — it was bis duty to exercise ordinary care to find out whether or not it was bis sister; and if *552 be failed to exercise such ordinary care in making inquiry and in ascertaining and in attending ber funeral, tbat is tbe reason be suffered, tben be is guilty of contributory negligence, and you will answer this issue ‘Yes.’ Or if be knew from wbat was told him by Mr. Oates tbat it 'was bis sister, and then be did not exercise ordinary care to supply himself with tbe necessary funds, and to make bis arrangements to get off and go in time for tbe funeral, tben be would be guilty of negligence, and if tbat negligence caused him to fail to get to the funeral, and brought about bis suffering, tben you should answer tbat issue ‘Yes.’ So, at last, tbe whole question upon this issue comes down to whether or not be exercised tbe care of an ordinarily prudent man under all tbe circumstances, taking into consideration wbat bad been said to him and wbat be knew and wbat be did, the time of night, tbe fact tbat be bad no money at tbe time, bis character and standing in tbe community, as to whether or not be could have secured tbe necessary funds and could have gotten off, whether be should have concluded tbat she was bis sister, whether be made inquiry about it and pursued tbe investigation and acted as a man of ordinary prudence would have acted under all tbe circumstances. If be did, your answer to this issue should be ‘No,’ tbat is, tbat be was not guilty of contributory negligence. But if tbe defendant has satisfied you tbat be failed to exercise tbe care of a man of ordinary prudence in tbe particulars I have mentioned, or any of them, tben you will answer tbe issue ‘Yes.’ ” We do not agree with tbe defendant as to its fourth contention. There is no evidence tbat tbe funeral of tbe sister could have been reasonably postponed, and if this fact appeared, we fail to see bow tbe act of ber husband, over whom the plaintiff bad no control, in declining to do so, could affect bis right to recover. His Honor correctly held tbat tbe burden of tbe second issue ■ was on tbe defendant. Tbe cases of Hocutt v. Telegraph Co., 147 N. C., 186, and Hauser v. Telegraph Co., 150 N. C., 557, relied on by tbe defendant, are not in conflict with this view. *553 No issue of contributory negligence was submitted in either case, and consequently tbe question here raised of the burden of proof on that issue could not be involved. What is said by Justice Walicer in the last case, as to the burden of proof, relates entirely' to the question of proximate cause, as is clearly shown by the language he uses. He says: “The burden of proof was not upon the defendant to show that the plaintiff had not exercised diligence, but upon the plaintiff to show not only that the defendant had been guilty of neglir gence, but that its negligence was the proximate cause of the damage to him.” This appears to us a clear case of negligence on the part of the defendant, resulting in damage to the plaintiff, and it has been presented to the jury with a just recognition of the rights of both parties. No error.