61 S.E. 653 | N.C. | 1908
CLARK, C. J., concurring arguendo. (3) "KNOXVILLE, TENN., Oct. 14, 1905.
"JAY WOODS, No. 38 Depot Street, Asheville, N.C.
"Come at once. Grant Woods is dead. If not, let know.
LEONA WOODS."
The plaintiff testified in his own behalf as follows: "My name is Jay Woods. I live in Asheville and own my own home, in the rear of No. 83 Depot Street, where I have lived for about ten years. I am a porter, in the employ of the Southern Railway Company, and on the 14th day of October, 1905, and before and after that time, was running on a passenger train, between Asheville, N.C. and Columbia, S.C. My run brought me into Asheville between 1 and 2 o'clock on one day and took me out about 4 o'clock on the following day. I was in Asheville *3 on Saturday, the day the telegram was received at the Asheville office, and until about 4 o'clock on the following day, when I went out on my run. Monday, on my way back to Asheville, I learned at Spartanburg, about 11 A.M., that my brother, Grant Woods, was dead, and that his body had passed through Asheville that morning and would be buried at Cleveland, N.C. that day. My brother lived at Knoxville and was engaged in railroading. Our mother's home is near Cleveland, and Grant's body was taken there from Knoxville for burial. My train was late that day, Monday, getting into Asheville so late that, as we came into the yard, No. 12, the train for Cleveland, was pulling out. The next train for Cleveland was Tuesday morning, about 7 o'clock. I took this train. On arriving at Asheville Monday afternoon, and finding I could not go to Cleveland until next morning, I wired my mother's home, asking that they hold the body until I arrived. I reached home some time after noon Tuesday, and walked to my mother's home, about five miles in the country, arriving about 4 o'clock. Grant's funeral was held about an hour after my arrival, and I was present at his funeral. When I reached home the condition of Grant's body was such that I could hardly tell who he was. If (4) the telegram had been delivered to me Saturday night, when it was received at the Asheville office, I could and would have caught the train for Knoxville, due to leave that night about 1:10 A.M. and to arrive at Knoxville about daylight Sunday morning. If I had missed this train there were two trains on the following day — one about 7 A.M. and one about 2:30 P.M. — from Asheville for Knoxville. My house is about 75 or 100 feet in the rear of Depot Street. There was one house between my house and Depot Street. There was no house fronting on Depot Street numbered 83, and a person walking along the street could not have seen such a number. I did not live at 38 Depot Street, and a message addressed to that number and delivered there would not have reached me, as there was a white family living there."
Will Robertson, witness for the plaintiff, testified that on 15 October, 1905, he resided in the rear of No. 85 Depot Street, and that the above message was delivered to him on Sunday, about 6 o'clock P.M., and by him turned over to Jay Woods' wife later in the evening.
The plaintiff also offered in evidence the then current city directory of Asheville. It was admitted that this was the city directory, but defendant did not admit that it was correct. The directory showed the name of Jay Wood, porter, and that he lived in the rear of house No. 83 Depot Street.
At the close of plaintiff's evidence the court, on motion of defendant's counsel, ordered a nonsuit, under the provisions of the statute. Plaintiff excepted and appealed. *4
The case should have been submitted to the jury, and the court erred in deciding as matter of law that there was no evidence of actionable negligence. The defendant introduced no evidence, and it therefore does not appear that it made any effort, not even the (5) slightest, to deliver the message, notwithstanding the mistake in the street address. This Court, in Hendricks v. Telegraph Co.,
In Hinson v. Telegraph Co.,
The fact that the plaintiff did see his brother's body before the (7) burial is no defense to this action. The defendant has failed to perform a plain duty which it owed to him, and this shows actionable negligence. Hendricks v. Telegraph Co., supra; Cogdell v. TelegraphCo., supra; Hocutt v. Telegraph Co.,
The plaintiff cannot recover any damages because he saw his brother's body after decomposition had advanced so far that his features could "hardly" be recognized. We have held at this term that this is not a proper element of damages. Kyles v. R. R.,
New Trial.