86 S.E. 716 | N.C. | 1915
On 31 July, 1913, at Linden N.C. B. Gainey delivered to the defendant at 7:45 p. m. a telegram addressed to Jim Gainey at Purvis, N.C. as follows: "Loula May killed by lightning this evening. Come." The sender was informed that it could not be delivered that night, as it had to be sent to Elrod, N.C. and be telephoned from there. The plaintiff lived about half a mile from Purvis and about two and one-half miles from Elrod, at which latter point the message was received at 9:19 p. m. The Elrod office sent a service message to Linden, which was received at 8 a. m. next morning, and the Linden office guaranteed special delivery charges. The message was not delivered to Gainey till 10:20 a. m. He immediately left in a run to take the 10:45 train at Elrod for Fayetteville, but failing to get there in time, he took the freight train, which put him in Fayetteville at 4:20 p. m. He spent the night there and left on the first train, reaching Linden at 8 a. m. next day, too late for the funeral.
The defendant contended that the plaintiff might have taken a private conveyance for $5 after his arrival at Fayetteville, and have gone thus to Linden, eighteen miles away. The plaintiff testified that he would have done this, but did not have the money.
Loula May was the four-year-old motherless niece of the plaintiff and had lived much of her life at his house, and there was evidence of a strong affection between them and of plaintiff's mental anguish produced by the negligence of the defendant in causing him to fail to attend the funeral.
The first assignment of error is for refusal of a motion to nonsuit. But there was evidence of negligence sufficient to go to the jury in failing to deliver the message (after receipt of the guarantee of charges for special delivery at 8:30 a.m.) before 10:20 a. m., when the plaintiff lived at a distance of only two and one-half miles.
The second assignment of error is for admitting evidence that the defendant's agent told the plaintiff, at the time, that the message guaranteeing the extra charges was received by him at 8:30 a. m., and that the reason it was not delivered was because he did not know (9) where the plaintiff lived. This was not incompetent, for it is not an admission by the agent of negligence on the part of the company, but a narrative by the agent of his own conduct, which the plaintiff could give in evidence in contradiction of Jones's own statement in evidence. *48 The third assignment of error is to the judge's charge that if the jury found the defendant negligent it would be liable for such suffering as the plaintiff underwent in consequence of his not being able to get to the funeral in time. But in the connection used, the court evidently meant, if it caused such failure.
The fourth assignment is that upon the second issue, "Could the plaintiff by the exercise of reasonable diligence have reached Linden in time for the funeral and burial?" the court told the jury that the burden was on the defendant. The jury having found, in response to the first issue, that the defendant "negligently delayed to transmit and deliver the telegram," the defense that, notwithstanding such negligence, the plaintiff by the exercise of reasonable diligence could have reached Linden in time for the funeral, was set up by the answer, and the court properly instructed the jury that the burden of proving such allegation was on the party that pleaded it.
The fifth assignment of error is that the court refused to charge, as prayed, that "If the plaintiff could have hired an automobile, or other conveyance, and gone to Linden in time for the funeral, then in no view of the case could the plaintiff recover more than the price of such conveyance, which under the evidence was only $5," and the defendant asks that the judgment in this Court should be modified by reducing the damages to $5.
The amount of damages is a matter peculiarly within the province of the jury, who doubtless considered it in every phase presented by the able argument of counsel for the defendant. The plaintiff testified that he would have paid the $5 (or even $25), but that he did not have the money. This case is on all-fours with Bailey v. Tel. Co.,
No error. *49
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