Western Union Telegraph Co. v. Duke

Hart, J., (after stating the facts). At the outset, it may be said that in the case of Western Union Telegraph Company v. Bickerstaff, 100 Ark. 1, the court held: “A telegraph company does not insure the prompt transmission of messages; it is required to exercise ordinary care, and is liable only for a failure to transmit as promptly as is reasonably practicable under all the existing circumstances. ’ ’ It is earnestly insisted by counsel that the court should have given a peremptory instruction in favor of the defendant. It was admitted that the telegraph offices at both Camden and Hope were closed on Christmas day between the hours of 10:00 a. m. and 4:00 p. m., and that the sender of the message knew of this fact. Therefore, the trial court ruled that the issue of negligence in this case would be confined to the question of whether the defendant was guilty of negligence in handling the message after 4 o’clock p. m. In determining this question, the jury had a right to consider the evidence in its most favorable light to the plaintiff. It is true that Herrin, the wire chief of the defendant company at Little Rock, testified that they attempted to send the message from Little Rock to Hope at 4 o’clock p. m., the time at which the office at Hope would be open on Christmas day. He also says that they made attempts for an hour to get the message through, and it was not until 5 o’clock or after that they discovered there was trouble with the local wire to Hope. They afterward sent the message around by Dallas and back to Texarkana to Hope. The manager of the defendant’s office at Hope states that the message was received there at about 5:45 p. m. It will be noted, however, that the defendant, in its answer, admitted that the message was received at Camden, and promptly transmitted to Little Rock and was received there before 4 o’clock p. m. This fact may also be inferred from the testimony of Mr. Herrin, for he says, “When we got the message we called the Hope office; then we called the Hope office at 4 o’clock and on up to 5 o’clock, when we discovered the wire was cut.” At the close of his cross examination we quote from his testimony as follows: Q. You had no trouble in locating the right wire— the trouble was on the local wire? A. Yes, sir. Q. And you located it? A. Yes, sir; in about thirty minutes. Hence, the jury might have inferred that he discovered at 4:30 o’clock p. m. that he could not send the message to Hope over the local wire. We again quote from his testimony, as follows: Q. You say you tried to get Hope at 4 o’clock and didn’t succeed? A. Yes, sir. Q. And didn’t succeed in getting them until 5 o’clock? A. We didn’t succeed in getting them until 5:30. Q. Well, when you couldn’t get them, didn’t you know that either one or two things was wrong, either the wire was out of order or the operator wasn’t in his office? A. Well, there was something wrong, but we have lots of wires up there— Q. But you didn’t get Hope, did you? A. No, sir. Q. It was an hour or more before you got Hope ? A. Yes, sir. We, also, quote from his direct examination as follows : By Mr. Todd (counsel for defendant): “We offer it (referring to the date showing the exact time the message was sent), if yonr Honor please, to show the time of sending. ’ ’ By Mr. McMillan (counsel for plaintiff): “I object to it as hearsay testimony.” By the Court: “The witness has already stated that the message was sent at 5:30. ’ ’ The manager of the office at Hope testified that it was received there at about 5:45 p. m. And a witness for the plaintiff testified that ten minutes would have been a reasonable time in which to have delivered the message to the plaintiff. Therefore, the jury were warranted in finding that twenty-five ‘or thirty minutes was a reasonable time in which to have transmitted the message around by Dallas, and have delivered it to the plaintiff after it was received at Hope. Then, if the defendant company located the trouble on the local wire to Hope within half an hour, and if an additional thirty minutes was a reasonable time within which to have sent the message around by Dallas and delivered it to the plaintiff, the jury were warranted in finding that the message should have been delivered to the plaintiff at 5:00 p. m. She testified that had she received the message she wuuld have immediately driven through the country from Hope to Stamps, a distance of twenty-three miles. A train left Stamps for Camden at 8:30 p. m. and arrived at Camden at 10:10 p. m. This would have given plaintiff three and one-half hours in which to travel from Hope to Stamps. A witness for the plaintiff testified that he had made the trip in a buggy in two hours and thirty-éight minutes, and it is not unreasonable that the plaintiff might have procured a conveyance and have traveled the distance in three and one-half hours. Therefore, we are of the opinion that from the facts and circumstances adduced in evidence in the instant case, the jury could have reasonably inferred and were warranted in finding that if the operator at Little Bock had used ordinary care in transmitting the message from Little Rock to Hope at 4 o’clock, the plaintiff could have reached the bedside of her daughter shortly after 10 o ’clock p. m. on Christinas day, and would have been with her daughter several hours before she died. One of the grounds of the defendant’s motion for a new trial is that “the court erred in admitting evidence over defendant’s objection as shown by the defendant’s exceptions made and entered of record.” In the case of McClintock v. Frolich, 75 Ark. 111, the court held: “A motion for new trial on the ground ‘that the court erred in admitting evidence on the part of the defendant which was excepted to at the time by the plaintiff,’ without naming the witness or pointing out the evidence is too general, and does not present any question for consideration.” Again, in the case of Miller v. Nuckolls, 77 Ark. 64, the court held: “A ground for new trial because of errors of law in admitting evidence, ‘as shown by the stenographer’s transcript thereof,’ is too indefinite to call the court’s attention to the particular error complained of.” Therefore, it will be seen that the attention of the court was not called in the motion for a new trial to the particular error complained of in the admission of evidence, and the assignment is too indefinite. The court expressly limited the right of the plaintiff to recover to negligence on the part of the defendant after 4 o’clock p. m. Therefore, there was no error in refusing to give defendant’s instruction numbered 2 on the question of contributory negligence. No argument is made by counsel in their brief to reverse the judgment because the verdict is excessive, and the judgment will be affirmed.