11 Neb. 87 | Neb. | 1881
The alleged errors to be considered pertain to the instructions to the jury. The charge was full, covering every point arising in the case necessary for the jury to be informed upon, and was evidently prepared
It is said by counsel in his brief that “the most serious erf or committed ” is in those portions of the charge wherein “ reference was made to the right of the defendant to adopt rules and regulations whereby to restrict its liability in this class of cases, and the effect of the adoption of such rules and, regulations.” The ground taken on this point, being that there was nothing in the pleadings by which these rules and regulations were made at all material. In all this we think counsel labors under a mistake. Evidently the rules and regulations referred to by the judge were those copied into the answer as being on the message blanks, and forming the basis of the alleged contract between the Telegraph Company and Preston & Co. the senders of the message. The most important of these rules, in fact the only one of them necessary to be here considered, is that which provided that the company should “ not be liable for mistakes * * * of any unrepeated message beyond the amount received for sending the same.” The jury were told that this was not an unreasonable regulation on the part of the company, and “if brought to'the knowledge of persons dealing with them, and assented to by such persons,” would be binding upon them. The effect of such regulation was given in these words, which we accept as a fair statement of the law : “ If, therefore, you find from the evidence that, at the time this telegram was sent, the rules and regulations which have been offered in evidence were in force along the defendant’s line, and such regulations were brought to the knowledge of the senders of the message, or the plaintiff, and assented to by them, and the message in question was not directed to be repeated, and that the defendant
The plaintiffs’ counsel tendered several instructions embodying the views for which he now contends on this question. They are substantially that a telegraph company cannot, by a rule or regulation like the one just referred to, limit liability for errors committed in the transmission of messages. That such a rule is unreasonable and contrary to' public policy. Further, “ that the defendant, in order to exonerate itself from responsibility for the mistake, should have shown how it occurred, and in the absence of such proof the jury will be justified in presuming a want of ordinary care on the part of the defendant.” These, with other propositions of similar import founded thereon, which in the absence of all restrictions would have been suitable, were rejected by the court, and as we think, properly. The law, as it is finally settled by the better authorities, is otherwise.
In Redpath v. Western Union Telegraph Company, 112 Mass., 71, it was laid down that the sender of an un
The reasonableness of the rule thus recognized by the courts must be seen and acknowledged by all who give heed to the fact sworn to on the trial by several expert witnesses, and denied by none, that the only known means of reaching absolute accuracy in the transmission of messages by telegraph is by repeating them, that is returning them to the office from which they were sent, for comparison with the original.
Many additional authorities on this point might be cited, but these will suffice, representing, as they do, the current of decision. In the case before us there is no pretence either of gross negligence or wilful mis
As we have already seen, where such rules and regulations are in force, and the message is sent with reference to them, the company cannot be made liable
The eighth paragraph of the instructions is pointed out by counsel as specially objectionable, and was in these words: “If there were such rules and regulations, so assented to, the mere fact that there was an error in the message as delivered would not of itself, without further proof of carelessness, be sufficient to authorize the plaintiff to recover anything beyond the price of the message and interest thereon.” There is no error in this instruction, which is fully supported by the authorities already cited. The jury did return a verdict in favor of the plaintiff for the sum paid by him for sending the message, which was all he was entitled to, gross negligence or wilful misconduct being neither charged nor proved, and he being clearly subject to the rule or regulation by which the company restricted its liability to that amount.
As before stated, the charge in this case was evidently prepared with care, and after a full examination of all the authorities cited we are satisfied that it states the law of the case correctly, in every particular, and therefore the judgment must be affirmed.
Judgment affirmed.