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Western Union Telegraph Company v. McNair
HARALSON, J;
1. The case was tried upon the pleas (1 and 2) of the general issue, and on pleas 6, 7 and 8 setting up the contributory negligence of the plaintiff. The plaintiff filed a replication to these, last pleas, but in substance and effect i,t was no more than a joinder of issue on said pleas.
2. The. defendant moved the court to strike from the complaint the concluding sentence therein, setting up that plaintiff was prevented, on account of defendant’s negligence in and about the transmission and delivery of. the telegraphic message, from being present at his father’s funeral, and of again seeing him -before his burial, on account of which he suffered great injury to his feelings and mental anguish, to the great damage of plaintiff in the sum of $1,000, for which he sues.
That the court properly overruled the motion to strike is, under the former rulings of this court, so well settled, we need not give the matter attention further than to refer to the adjudged cases: Postal Tel. Cable Co. v. Ford, 117 Ala. 672; Western Union Tel Co. v. Adair, 115 Ala. 441; Ib. v. Seed, 115 Ala. 670; Ib. v. Cunningham, 99 Ala. 314; Ib. v. Nelson, 93 Ala. 32; Ib. v. Henderson, 89 Ala. 510.
3. The 1st, 4th, 5th and 6th charges given at the request of plaintiff, assert the general proposition, that if the defendant was guilty of negligence in and about the sending and delivery of the telegram, then the plaintiff was entitled to recover-. The contributory negligence of the plaintiff, set up in the said three pleas of the defendant, was utterly ignored in these charges, and, however correct the charges may have otherwise been, they should not have ignored reference to the plaintiff’s own contributory negligence, set up and relied on as a defense by the defendant, and which it introduced evidence tehd
[103] ing to establish.—3 Brick. Dig. 107, § § 9, 10; Fitzgerald v. State, 112 Ala. 34; Highland Ave. & B. R. R. Co. v. Sampson, 112 Ala. 426.
4. The three charges requested by defendant were properly refused.
Reversed and remanded.