113 Ky. 188 | Ky. Ct. App. | 1902
Opinion of the court by
Reversing.
On the afternoon of November 12, 1896, appellee’s brother lodged at appellant’s office in Springfield, Ky., a telegram, to be transmitted and delivered to appellee at Shelbyville, Ivy., stating; “Come home; father very sick.” The message was promptly transmitted to Shelbyville. The agent the re, upon inquiry, learned that appellee lived some four and one-half miles in the country. The message was directed to the care of James A. MeGaughey, with whom appellee was living. Upon learning that appellee lived out of the town,
Appellee was permitted to prove that her reason for not taking the first train Sunday morning, and her reason for staying in Louisville until she could hear further by another telegram Monday morning, was because of tlie-sickness of. a young child she had left at home and was unable to take. We are of opinion that this evidence, so far as it went to •explain why she did not take the first train from Shelbyvil'Ie, was relevant, but that it was not an excuse for her not having continued her journey when begun; at least so far as affecting the liability of the company is concerned.
The following evidence given by appellee was also objected to: “Q. 37. State whether or not you know anything about any trains in Lebanon? A. No. sir; I did not known anything about the trains going from Louisville to Lebanon. Q. 38. State whether or not you knew anything about the trains leaving Louisville for Lebanon at 8 o’clock? A. No, sir; I did not.” We are of opinion that this evidence was irrelevant. It was the duty of appellee to know, or to inform herself, as to the running of the trains, and to have taken the first one that she could within reason, or her failure to do so would have been contributory negligence.
The following testimony of same witness was also objected to: “Q. áá. What did you do the next morning?’ A.
Contributory negligence was pleaded. The court gave the jury this instruction: “The court instructs the jury that it was the duty of the plaintiff, after the receipt of the telegram in question, to exercise ordinary care and diligence to arrive at the bedside of her father before he became unconscious, or before his death; and if they believe from the evidence that the plaintiff failed to exercise such care and diligence to arrive at his bedside before he became unconscious, or before Iris death, and that by reason thereof the plaintiff was prevented from arriving at his bedside before he became unconscious, or before his death, then the law is for the defendant, and they should so find.” Gray, in his work on communication by telegraph, thus states the law relative to contributory negligence in this class of cases: •‘Sec. 100. The law imposes upon a person injured by the negligence of another the duty to make reasonable efforts to render that injury as small as possible; and it does not permit him to recover damages for any increase of loss consequent upon a failure to perform that duty.” Also see Joyce, Electee Law, sec. 972. The injury to the plaintiff in this case and similar ones is the mental anguish suffered
It is argued for appellant that it was under no obligation to deliver the message to the plaintiff four miles in the country, and that it did not receive or contract to receive any compensation therefor. Tt was shown that appellant delivered messages only within the limits of the town where the office was situated without special contract extending its undertaking. We are of opinion that, while appellant may have refused to have undertaken to deliver a message beyond the limits of its lines arid within the territory prescribed by reasonable rule for delivering messages, as for example in this case, to the limits of the town where the office was situated, yet, when it undertook to do so for a consideration, it was bound by its undertaking, although it may have been required to have paid out the full consid-' oration so received, or even more, to the runner whom it employed to make the special delivery.
Xor can we agree that the making of such a contract by the agents of the telegraph company and the sender of the message wTas an individual transaction between the sender and the agent. It was within the scope, or, at least, within the apparent scope, of the agent’s authority for his master to make such a contract, and the contract when made is obligatory upon the company. The circuit, court properly excluded the evidence attempting ten restrict the liability in this case to a transaction between the sender and the agent personally, and properly refused the instruction asked on this point.'
Rut, for the errors herein indicated, the judgment is reversed, and cause remanded for a new trial not inconsistent herewith..