6 Utah 219 | Utah | 1889
This is an action brought by the plaintiff against the defendant in the district court at Ogden City. The facts of the case show that on the 8th of April, 1888, between 5 and 6 o’clock in the evening, the plaintiff, a girl about five years old, had her hand badly mashed, and to such an extent that her forefinger of the right hand was broken at the middle joint. It seems that she, together with other children, were engaged playing upon the turn-table of the railroad at a station called Promontory, in Box Elder county, Utah Ter., about 50 miles north of Ogden City.. That when her .father discovered' her injury, — there being no physician that could be'reached nearer than Ogden City, —he at once telegraphed to that city for a physician. To this telegram he received an answer that the physician could not come. Immediately upon the receipt of the telegram from the physician.he sent the following: “Promontory, April 8th, 1888. To J. B. Brown, Ogden, Utah.— Send doctor on first train. Katy has broken her finger. T. G. BbowN.” This telegram was received by the agent of the defendant at promontory, who was likewise the agent of the railroad, at 6:30 o’clock, Promontory time, — 7:50 Ogden time. Trains left Ogden, going west, one at 7 p. m., and one at 11:30 at night. This dispatch was not delivered by the company to Brown until about 7:35 A. M. the next day. The testimony sufficiently shows that if the dispatch had been delivered to Brown at Ogden, that he would have procured a physician to go to Promontory, who would have left on the 11:30 train, and arrived at Promontory at 2 o’clock. As it was no physician reached the plaintiff that
So far as the first point of the defense is concerned,— that is, “that the proof does not sufficiently show that the result to the plaintiff would' have been different had the dispatch been delivered,” — this court is content to observe that all those matters were submitted fairly, and under proper instructions by the trial judge to the jury, and, the jury having found against’the defendant, the rule of this court is that it will not disturb the verdict of a jury where the evidence tends to support it, and under that rule this case falls. But the more important question arises on the ground as to the right of the defendant to establish rules for its guidance in the delivery of telegrams. It will be remembered that this telegram was received at Promontory, and the money paid for its transmission to the Ogden office, and that it was transmitted in due time to the last-named office; and the only complaint, when the case is stripped of verbiage, is that the defendant company were guilty of negligence in failing to' deliver this telegram when it reached Ogden City from that office to Brown, the person to whom it was sent; and the direct defense of the defendant is that it was received after its office hours, which it had the right to 'establish, and that therefore there was no negligence. In other words, the defendant says “that we have the right to establish hours for the transmission and delivery of dispatches, and we have the right to judge of the reasonableness of those hours, and that, so long as we are within the observance of the rules and hours which we have established, we are guilty of no negligence;” the argument being that the public is bound to take notice of the hours and rules that “we have established for business.” Can this contention be sanctioned, is the important question which arises in this case. Whether, if a telegram were tendered .the company to be sent -by them out of their office hours, they would be bound to receive and send it, is a question with which the court is not now dealing, and upon which it expresses no opinion; but we
In order tbat there may be no misunderstanding as to tbe judgment of the court in tbe case, we lay down tbe following rule as applicable to tbe facts in tbe case: It will be observed tbat this dispatch was in plain, unambiguous language. It said: “Send doctor on first train. Katy has broken her finger.” When tbat dispatch was received at Promontory for transmission, and when it was received at Ogden by the agents of tbe defendant, tbe supreme importance of prompt and active service upon tbe part of tbe defendant’s agents in delivering tbat telegram was made manifest from its very reading, and we bold tbat tbe degree of diligence required of tbe defendant was equal in importance to tbe emergency of tbe occasion, and this without any regard to rules and hours established by tbe company, as testified to in this regard. It must be kept in mind tbat this company at Promontory, by its agent, received this dispatch, and received tbe money for its transmission, and that it was transmitted to tbe office at Ogden; tbat this dispatch was to tbe effect tbat a child was suffering with a broken finger; tbat it was important tbat a physician and surgeon be immediately sent; and to allow the defendant, upon the pretext that it was received out of its office hours, to let ib lie there until 7:35 tbe next morning, and then to excuse it from delivery under such circumstances would be the greatest injustice. It would be to put the public at the mercy entirely, or we may say tbe caprice and will, of public institutions, to which they are compelled to resort in tbe transaction of business. So far as tbe receipt and delivery of telegrams with reference to commercial transactions are concerned, we do not express an opinion, but we do not hesitate to say tbat when a dispatch shown to be received by tbe company for transmission, which upon its face demonstrates tbe importance of delivery, as in this case, tbe degree of diligence is to be in proportion to tbe exigencies of that case. Nor has tbe de