117 N.C. 352 | N.C. | 1895
By a series of decisions it has become settled law in this State that the sender of a telegram may recover, where the company is shown to be negligent, damages for such mental anguish as may be caused either by the failure to deliver or delay in the delivery of the message sent. Young v. Telegraph Co., 107 N. C., 370; Thompson v. Telegraph Co., Ibid., 449; Sherrill v. Telegraph Co., 116 N. C., 655. It was held on the last appeal (116 N. C., 655) that proof of the receipt of a message by the agent of the company with the understanding that it would be sent to iis destination together with evidence of the failure to deliver, constitutes a prima faeie case in the trial of an action brought by the sender against the corporation to recover for its negligence. When therefore these facts were satisfactoi-ily proved, nothing more appearing, the plaintiff was entitled to an affirmative response to the first issue and to compensatory damages for mental anguish suffered in consequence of the delay, as distinguished from that which was due to the distressing nature of the message and which would have been experienced had there been no failure to deliver it. The opinion of the Court on the last hearing puts another question behind us.
In Scott v. Railroad, 96 N. C., 428, Denmark v. Railroad, 107 N. C., 185, and other cases which have followed, it has been held that the nisi prims Judge may in his discretion use two or three issues or confine the jury to one, where the plaintiff alleges, as the ground of action, negligence and the defendant sets up, as a defence, contributory negligence. It is true that the first issue was not so framed as to involve the decision both of the question whether the defendant was in fault and whether its negligence was the cause of the injury complained of. The issues as presented involved three distinct inquiries, first, whether the defendant was negligent, second, whether the plaintiff was negligent, third, not whether the defendant’s negligence would have caused the injury notwithstanding the negligence of the plaintiff, but whether the latter’s negligence was the proximate cause. When there is evidence as in this case to show a want of care on the part of a defendant, supervening after the carelessness of a plaintiff, it is usual and preferable, if a third issue is submitted, to embody in it, in substance, the inquiry whether by want of ordinai’y care the defendant lost “the last clear chance” to prevent the injury. But the circumstances as well as this issue were peculiar, and the test, where the exception arises out of the form of or the adaptation of instructions to issues, is always involved in the inquiry whether it appears that the jury were actually misled or did not have the benefit of instructions prayed for and which would have aided them
Affirmed..