Hoaglin v. Western Union Telegraph Co.

Walxer, J., after stating the ease: There was error in the last instruction given by the court, but not in telling the jury that, when the defendant discovered it could not send the message over its wire from Charlotte, it was its duty to notify the sender at Pineville of the fact, for that is correct. Hendricks v. Telegraph Co., 126 N. C., 304; Cogdell v. Telegraph Co., 135 N. C., 431; Hood v. Telegraph Co., 135 N. C., 622. The defendant’s failure to notify the sender of its inability to deliver the message was evidence of- negligence. Hood v. Telegraph Co., supra; Hendricks v. Telegraph Co., supra; Cogdell v. Telegraph Co., 135 N. C., 431; Woods v. Telegraph Co., 148 N. C., 1. It having been shown that the message had not been delivered, a prima fade case of negligence was made out, as was decided in the cases we have just cited. The Court said in Hendtricks v. Telegraph Co., supra: “It is well settled that where a telegraph company receives a message for delivery and fails to deliver it with reasonable diligence, it becomes prima facie liable, and that the burden rests upon it of alleging and proving such facts as it relies upon to excuse its failure.” This very language was repeated in Cogdell v. Telegraph Co., supra. See, also, Laudie v. Telegraph Co., 126 N. C., 431; Hunter v. Telegraph Co., 130 N. C., 602; Rosser v. Telegraph Co., 130 N. C., 251. This was not controverted, as we understand, by the defendant, and it undertook to explain its apparent gross neglect of duty. Whether it succeeded- in doing so was for the jury, and so far as the duty resting upon it to repair the break in its wire from Charlotte to Granite Quarry is concerned, the charge of the. judge was more than favorable to it, not so much in respect of what he did say on that branch of the case as in respect of what he did not say. It appears, from R. E. Mitchell’s testimony, that there was a violent storm at 4 o’clock in the afternoon of Saturday, 3 June, 1911, and that the wire to Granite Quarry went down at 4:25 o’clock, so that at least sixteen hours elapsed after- the break in the wire before there was any attempt made to mend it. The witness W. H. Crum, who was a lineman, did not return to Salisbury until dusk, but why he was not earlier called in to make the needed repairs and why he did uot use his velocipede that night with a lantern, the 396 trains having stopped running for the night, does not clearly appear. Nor does it appear why the other lineman at Salisbury was not called upon to do the work. It seems to have been! a very simple operation, and the break in the line was easily discoverable, according to Crum, as the tree was lying on the wire very near the track, and could not easily have escaped the attention of a lineman on the car with a light, even in the nighttime, and especially of a man who was keeping a watchful lookout for it. Why the defendant failed to send a service message, notifying the sender of the accident to its line, is not explained. The fact that S. D. Hoaglin lived 2 miles from Pineville, if he did, was no excuse for not sending the message to the office at Pineville, so that if the sendee was there, he could be notified. The operator at Charlotte knew that the wire was open as early as 5 :35 o’clock, Saturday afternooh, just twenty, or at the most, thirty minutes after it had been filed at Pineville. It does not follow that S. D. Hoaglin was not in Pineville at that time, simply because he lived 2 miles from the town. 37 Cyc., 1678. It was said in Rosser v. Telegraph Co., 130 N. C., 255: “The message having been shown by the testimony, and also admitted in the answer, to have been received by defendant and the charges prepaid, it then became its duty to deliver it to the addressee at the point to which it was addressed. If, however, that could not be done, then it was incumbent upon defendant to show that it had performed its part of the contract by exercising due diligence in endeavoring to do so. The fact that plaintiff lived several miles from West End does not excuse the defendant from making prompt and diligent inquiry to see if he were not within its delivery limits at that point when the message arrived.” It is natural to suppose that Hoag-lin may have been in Pineville, awaiting an answer from his brother,’ as, with due care on the part of the defendant, it required a very short time for such a reply to reach him. We do not think, though, that defendant -was required to deliver the service message to him beyond the corporate limits of Pine-ville, or beyond its free delivery limits there, if it has any. Railway v. Stroude, 82 Ark., 117; Telegraph Co. v. Davis, 71 S. W., 313; Telegraph Co. v. Matthews, 113 Ky., 188; McCaul 397 v. Telegraph Co., 114 Tenn., 661. It did not know when it received the message for transmission and delivery to T. L. Hoaglin that its line was not in condition for use, and it could not well have anticipated the storm or what its effect would be on the efficiency of its service. It was in no default up to the time that H. J. Hale, its operator at Charlotte, returned to the office and tested the wires and found the one to Granite Quarry open. It is a little surprising, without explanation, that the chief night operator of a large office like the one in Charlotte, who is supposed to be careful, and who, at least, should be, failed at the opportune moment to notify the sender of the situation he had discovered. There is no satisfactory explanation of his conduct in this record. But while the fact that the message was not transmitted and delivered is prima, facie evidence of negligence, the presumption thus raised may be rebutted by evidence showing that the company exercised due care or was prevented from making delivery by causes over which it had no control. 37 Cyc., 1673; Fowler v. Telegraph Co., 80 Me., 381. It does not insure prompt transmission, and could not justly be required to do so, and is liable only for negligence. It follows that it is not responsible for delays due to unavoidable interruptions in the working of its lines, such as those resulting from storms or atmospheric disturbances, or any other causes over which it has no control and against which, in the exercise of ordinary prudence and foresight, it was not reason^ ably practicable to guard. It must, though, by 'the exercise of due care, provide against all preventable causes. If its wires are injured by a storm, it must make diligent effort to remove the obstruction and restore them to their normal condition, so that they can perform their usual functions. Whether the company did what the law required of it was properly left to the jury upon the facts, and under the rule of the ordinarily prudent man, though the charge did not deal with the details of the evidence as it should have done. The failure to notify the sender that it could not deliver the message was also evidence of negligence, but it was error to instruct the jury it was not only negligence, but if it was found that the service message was not sent, they should answer the first issue “Yes,” because 398 that issue involved not only negligence, but proximate cause, as it was submitted. The issue was not so framed as to present literally the question of proximate cause, but it was so treated by the couid, as judgment was given upon the verdict, and there is no other issue as to this act of negligence and its proximate results. The instruction simply misled the jury. Again, the court should have required the jury to find whether the service message could have. been delivered to the .se'nder at Pineville, and, if so, whether he not only could, but would, have used the telephone for the purpose of sending the message to his brother in time for him to attend the funeral. Mere negligence is not actionable, and it does not become so unless it proximately causes damage. The precise question was decided in Hauser v. Telegraph Co., 150 N. C., at p. 558: “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 negligence, but that its negligence was the proximate cause of the damage to him. Hocutt v. Telegraph Co., 147 N. C., 186. It is not enough to show that there has been negligence in order to entitle a plaintiff to recover; he must, in addition, show that the defendant’s negligence was the proximate cause of his injury. Negligence is not actionable unless it is the proximate cause of the damage. Brewster v. Elizabeth City, 137 N. C., 392. The burden is always upon the plaintiff to prove every requisite of his cause of action. This is not a question of contributory negligence which would shift the burden of proof to the defendant, but it is one of the essential elements of the cause of action that the negligence of the defendant should proximately cause the damage.” The second issue evidently referred to the original message and its prompt transmission over the defendant’s wires and its delivery to T. L. Hoaglin at Granite Quarry, and not to the service message. The error of the court in thus instructing the jury requires us to order a new trial, as we are unable to determine whether the answer to the first issue was given under the charge as to the duty of defendant to repair its wire with reasonable care and diligence or under the erroneous instruction. If we could separate the two because we knew with 399 certainty tbat tbe jury were not influenced by tbe error, we would do so, but it is impossible, as tbe correct and incorrect instructions have together passed into tbe verdict, which is indivisible. In such a case, a new trial is tbe only remedy for tbe error. Rowe v. Lumber Co., 133 N. C., 433, and cases cited; Dunn v. Currie, 141 N. C., 126. It is analogous to tbe principle decided in Williams v. Haid, 118 N. C., 481; Tillett v. R. R., 115 N. C., 662; Edwards v. R. R., 132 N. C., 99; S. v. Barrett, 132 N. C., 1005, and more recently in Patterson v. Nichols, 157 N. C., at p. 413. Tbe issues should be amended so as to. embrace tbe questions arising-upon tbe second act of negligence imputed to tbe defendant, one of which will be, whether tbe failure to notify tbe sender of tbe true situation was tbe proximate cause of tbe damage to tbe plaintiffs, and this, in its turn, will involve tbe question whether a service message could have been delivered within tbe free delivery limits, if any, at Pineville, and if none, then .within tbe limits of tbe town, tbat being tbe place from which tbe original message was sent; and tbe further question, whether S. G. Hoag-lin would have used tbe telephone, if be bad received tbe service message in time to do so, and he could thus have communicated with his brother at Granite Quarry in time for tbe latter to have attended the funeral. It will be better to present tbe questions as to tbe two acts of negligence in separate issues, for tbe jury may find tbat defendant did not mend its wire with due diligence, and tbat, if it bad done so, tbe message would have reached T. L. Hoaglin in time for him to have gone to Pineville and attended tbe funeral. There was evidence to support a finding for plaintiff on all these questions, but tbe facts must be found by the jury, and, at tbe next trial, tbe defendant may explain away its apparent default and fully acquit itself of the charge of negligence, and plaintiffs may strengthen • some links in their case which will present it with greater clearness and conclusiveness to tbe jury and so as to satisfy them tbat tbe defendant’s apparent negligence is very real and has been tbe legal cause of damage to them. New trial.