42 S.E. 534 | N.C. | 1902
CLARK, J., dissenting. *55 This action was brought to recover (74) of the Western Union Telegraph Company, the defendant, damages on account of alleged mental anguish suffered by plaintiff on account of an alleged negligent failure to deliver to him a telegraphic message. The telegram was in these words: "New Bern, N.C. 3 October, 1901. To Bill Meadows, Pollocksville, N.C. Will Phillips' wife at point of death. Will Phillips." The language of the telegram differs from that of any in our reported cases, but as a new trial is to be had for matters hereinafter mentioned it might not be of any benefit to discuss now the legal effect of the language of the dispatch.
In his instructions to the jury his Honor, among other things, said "that it was the duty of the telegraph company to use reasonable diligence in the transmission of all messages committed to it, and that by the term reasonable or due diligence was not meant the speed of the lightning, except in the transmission of the message over the wire, on the one hand; not the proverbial slowness of the messenger boy on the other." There was an exception to the latter part of that instruction, and the same was assigned by the defendant as error, and we are of the opinion that the position of the defendant is a correct one. Whether the defendant had exercised due diligence in the delivery of the message was the question of fact before the jury. Telegraphic messages are usually delivered by boys called "messenger boys"; and the plaintiff had testified that "R. R. White's boy worked in the telegraph office. He knows me, knew where I lived; could stand in the office and see my house. The boy signed the receipt for the message himself. After my name was signed I said, `This thing has been delayed, what is the matter?'" It seems to us that his Honor, in the language used, took as a criterion of negligent delay the agency employed by the defendant to deliver its message. "No judge in giving a charge to the petit jury, either in a civil or criminal (75) action, shall give an opinion whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case, and declare and explain the law *56
thereon." Code, sec. 413. It is true that his Honor did not, in precise and exact words, tell the jury that in his opinion the fact of a negligent delay had been fully proved, but it seems to us "that his language, when fairly interpreted in connection with so much of the context as is set out in the record, was likely to convey to the jury his opinion of the weight of the evidence." That is the construction of the statute adopted in S. v.Jones,
New trial.