| N.C. | May 5, 1909
Defendant appealed. *458 This action was brought to recover damages for mental anguish, alleged to have been caused by the negligence of the defendant in transmitting and delivering a telegram informing the plaintiff of his sister's death. It is alleged that by reason of the negligence he was prevented from attending the funeral. The message is as follows:
ROCKFORD, N.C. 20 July, 1908.
FRANK HAUSER, Taylorsville, N.C.
Gertrude Williams dead. Come at once. A. HAUSER.
It appears that the plaintiff's sister died at Yadkinville, which is about ten miles from Rockford. He could have gone by either one of two routes from Taylorsville, where he lived, to Yadkinville: (558) (1) by train from Taylorsville to Statesville, and thence by driving to Yadkinville, a distance of 36 miles; (2) by driving to Wilkesboro from Taylorsville, a distance of 20 miles, and thence by rail to Rockford, and thence by driving to Yadkinville. He did not know that he could have gone to Yadkinville by way of Wilkesboro in time for the funeral, and he did not intend to go after he received the message, as it was delayed, and he thought it was too late for him to reach Yadkinville before the funeral; but he would have gone if the message had been delivered before the train left for Statesville. There was other testimony as to whether the plaintiff had exercised care and diligence in attempting to go to Yadkinville after he received the telegram.
The court submitted issues to the jury, which, with the answers thereto, are as follows:
1. "Did the defendant negligently fail to deliver the telegram as alleged in the complaint?" Answer: "Yes."
2. "Could and would the plaintiff have attended the funeral of deceased if the telegram had been delivered in reasonable time?" Answer: "Yes."
3. "Notwithstanding the negligence of defendant, if any, could the plaintiff, by the exercise of ordinary diligence, have attended the funeral of deceased?" Answer: "No."
4. "What damage, if any, is the plaintiff entitled to recover of defendant?" Answer: "Two hundred dollars."
Numerous exceptions were taken by the defendant during the trial of the case, but the only one which we think it necessary to consider is *459
the following objection to an instruction of the court, which the plaintiff assigns as error: "The defendant contends that if the said plaintiff had exercised due care and reasonable diligence, such as the law exacts of him, he could have attended said funeral after the said telegram was delivered; and if you should so find from the evidence, you will answer this issue `Yes.' (The burden of proof upon this issue is on the defendant.)" 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. Hocuttv. Telegraph Co.,
There was error in misplacing the burden of proof by the instruction to which the defendant excepted.
New trial.
Cited: Lanning v. Tel. Co.,