Judd, J.:
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 *234night, and the next morning ber father took lier upon the train, and arrived at Ogden at 10 o’clock on the morning of the 9th. When' the father arrived at Ogden he at once took her to the office of a physician and surgeon by the name of Bryant, who found, as he states, that the fore part of the finger, from where it was broken, was, to use his own language, “deadthat by twisting the finger around, or by some other means not entirely described, the circulation had been strangled; and that he found it in such a ■condition that it was impossible to re-establish circulation, and that amputation was necessary, and he amputated it at the middle joint. The action of the plaintiff against the defendant is founded upon the idea that if the dispatch sent to Brown had been delivered in proper time a physician would have arrived at Promontory at the hour of 2 ■o’clock that night after the accident, and that the finger by proper surgical treatment, could have jbeen saved, and the plaintiff saved of much pain and suffering. This theory of the case is put in issue by the defense and the ground taken is, first, that the proof does not show that the final amputation of the finger was the result of any delay in procuring a physician, and that it was probably the result of the accident which so badly damaged the finger; and that in any event amputation would have been necessary, and that the delay and negligence, if any, of the defendant, was not the proximate cause of the loss of the finger, and the pain •and suffering ; and therefore the defendant alleges that it is not liable; and for further defense it sets up that the manager of the defendant company in charge of the office in Ogden had established certain rules with reference to the delivery of dispatches from that office, and that those rules were reasonable, and that, all other questions aside, it is not liable. It alleges and shows by the,proof that, the day of the reception of this dispatch at Promontory and its transmission to Ogden City being Sunday, its office hours were from 8 to 10 o’clock A. m. and 4 to 6 p. m., and that on week-days from 7:30 A. m. to 8 p. m. That this dispatch, being received at Ogden at 8 o’clock and 9 minutes, was more than two hours after the office hours established for this office, and, to use the language of the brief of the *235counsel for tbe defendant, “these hours being reasonable, the company was not bound to deliver the dispatch received outside* of the hours, no matter what the consequences may have been.”
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 *236are of the opinion that, having received and transmitted this dispatch, the measure of diligence to be applied to the conduct of the defendant, with reference to its delivery, is not to be, and cannot be, decided by any rules or hours that the company may see fit to establish. Whether in the individual case the rules of the company are or are not reasonable, or whether it is or is not guilty of negligence in failing to deliver a message, is a question which the court will not allow the company to decide. It is a fundamental rule in the administration of remedial justice that courts claim and exercise for 'themselves the right to adjudge in each individual case as it may be presented the question of whether the parties sued are or are not guilty of wrong, with reference to the particular transactions under investigation. Whether the rules established by the defendant are reasonable or not, as we have said, is a question to be decided by the court or jury, as the case may be, in each invividual case as it arises. It will not do to say that, because the company has the right to establish rules for its government, therefore those rules determine the question of negligence or no negligence. It must be remembered that this defendant, in offering its services to the public, and receiving the money of people for sending-dispatches from one point to another, is, to say the least of it, occupying the position of a public institution. In the language of Chief Justice Waite, in the case of Munn v. Illinois, 94 U.S., 113" court="SCOTUS" date_filed="1877-03-18" href="https://app.midpage.ai/document/munn-v-illinois-89446?utm_source=webapp" opinion_id="89446">94 U. S., 113: “ When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must to the extent of that interest submit to be controlled by the public for the common good, as long as he maintains the use.” This defendant company, by its invitation to the public to use its lines for the transmission of messages, impliedly grants to the public an interest in the use of its wires, and, having done this, like all other institutions of like character, its rules and regulations are at all times open to inquiry as to their reasonableness, and its conduct is at all times open to inquiry, as to whether it is guilty of negligence or not. We are of the opinion that the question in this case of the reasonableness of these *237rules of tbe company was properly submitted to tbe jury; and we are also of tbe opinion tbat tbe question of whether this company was guilty of negligence in failing to deliver tbe dispatch was properly submitted to tbe jury; and in tbe both instances tbe jury found against tbe defendant.
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*238fendant the right to complain at this. It sets itself up as a transmitter of messages for the public, and it receives franchises from the state, in order that it may do business; it receives money from the public for the transmission of messages, and, like all other institutions, it should be willing to deal with the public in a fair and just manner, and not undertake to screen itself beyond mere office rules and hours, which in all probability are made for the mere convenience of’ the employees; and especially in cases like this, where human pain, suffering and deformation hang upon prompt action. Nor are these views new, but find ample authority in adjudged cases of high respectability. As a sample we cite the cases of Telegraph Co. v. Broesehe, 10 S.W. 734" court="Tex." date_filed="1889-02-12" href="https://app.midpage.ai/document/western-union-telegraph-co-v-broesche-4896028?utm_source=webapp" opinion_id="4896028">10 S. W. Rep. 734, and Telegraph Co. v. Sheffield, Id. 752. Other cases could be cited, but the foregoing are sufficient. The case was fairly submitted by the court to the j ary, under instructions in some respects more favorable to the defendant than the law warranted, and we are satified that substantial 'justice has been reached, and the judgment of the court below will be affirmed, with the costs.
Zane, 0. J., and. ANDERSON, J., concurred.