Higdon v. Western Union Tel. Co

• Decision Date: 02 June 1903
• Citation: 44 S.E. 558,132 N.C. 726
• Parties: HIGDON . v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

44 S.E. 558

132 N.C. 726

HIGDON .

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina.

June 2, 1903.

TELEGRAM—DELAY IN DELIVERY—DAMAGES-PROXIMATE CAUSE—INSTRUCTIONS.

1. Where plaintiff, on receiving a delayed message announcing the death of his mother at a time when the only train by which he could have reached his mother's residence and attended the funeral was scheduled to leave immediately, telephoned to the railroad station, and, on being erroneously informed that the train was on time, made no effort to take it, which he could have done if he had been correctly informed that it was two hours and a half late, the telegraph company, in an action for negligence in delivering the message, was entitled to an instruction that, if plaintiff was misinformed as to the time when the train left, then defendant's negligence, if any, was not the proximate cause of plaintiff's injury, and no damage could be assessed on account of plaintiff's failure to reach the funeral.

Douglas, J., dissenting.

Appeal from Superior Court, Mecklenburg County; Coble, Judge.

Action by W. R. Higdon against the Western Union Telegraph Company. Prom a judgment in favor of plaintiff, defendant appeals. Reversed.

Jones & Tillett and F. H. Busbee & Son, for appellant.

Burwell & Cansler, for appellee.

MONTGOMERY, J. The telegram, in which the death of the plaintiff's mother and the time and place of her burial were announced was delivered to the plaintiff in Charlotte, N. C, at 8:30 a. m. The only train which could have taken him to the place of interment at the hour appointed left Charlotte, by schedule time, at 8:30 a. m.— the same hour of the receipt of the telegram. The plaintiff testified that the trains were frequently late, and that one could not rely on trains being on time. He further said that he asked his partner in business (Pierce) to inquire by telephone at the Southern Station, if the train to Atlanta was on time, and on being informed by his partner that he had received an answer that the train was on time he abandoned any purpose to attend the funeral. There was evidence, uncontradicted, that the train was two hours and a half late on that morning. Under all the evidence, it seems clear that it was the plaintiff's duty to have inquired as to the hours of the running of that train. He felt that it was incumbent on him to do so. He did not make inquiry himself, but got another to do so for him. The evidence does not disclose of whom the inquiry was made by Pierce, and the answer to it, if the uncontradicted evidence was to be believed, conveyed incor-rect information. That was evidence of negligence on the part of the plaintiff's agent, and, in law, of his own. On this point the defendant asked the following instruction: "If the jury find from the evidence that the only train upon which the plaintiff could have gone to attend his mother's funeral left Charlotte more than two hours after the receipt of the telegram announcing her death, and if the jury further find that the plaintiff, in order to ascertain whether he could take the train, relied upon telephone communication, and if, by the negligence of any other person, either his partner, who telephoned, or the person to whom he telephoned, the plaintiff was misinformed as to the time when the train left, then the jury are instructed that the negligence of the defendant, if any there was, was not the proximate cause of the plaintiff's injury, and the jury, in answering the sixth issue, are directed not to assess any damages on account of plaintiff's failure to reach the funeral." His honor gave, in substance, an instruction like that...