W.U. Tel. Co. v. Baker

• Citation: 140 F. 315
• Decision Date: 25 August 1905
• Docket Number: 2,166.
• Parties: WESTERN UNION TELEGRAPH CO. v. BAKER.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

140 F. 315

WESTERN UNION TELEGRAPH CO. v. BAKER.

No. 2,166.

United States Court of Appeals, Eighth Circuit.

August 25, 1905

(Syllabus by the Court.)

One's right of recovery for damages on account of another's negligence is always conditioned by his own exercise of ordinary care to avoid or diminish the damages as soon as he knows that they are impending; and, where the exercise of such care would have prevented them, the failure to exercise it is fatal to a recovery.

In cases involving contributory negligence, the question is not whether the negligence of the plaintiff or that of the defendant is the more proximate cause of the injury, but it is whether or not the negligence of the plaintiff directly contributed to it. One whose negligence directly contributes to his injury cannot recover damages of another whose negligence concurred to cause it, although the carelessness of the latter may be the more proximate cause of it.

The question of the existence of contributory negligence is, like any other question of fact, for the jury when conditioned by conflicting testimony or doubtful deductions from the evidence. It is for the court when the evidence so clearly discloses the fact that a finding contrary to its showing could not be sustained, and in all such cases it is the duty of the trial court to instruct the jury to return a verdict in accordance with the evidence.

There is always a preliminary question for the judge before a case can be properly submitted to the jury, and it is, not whether or not there is any evidence, but whether or not there is any substantial evidence upon which a jury may properly render a verdict in favor of one of the parties to the action. The duty to determine this question and to withdraw the action from the jury is imposed upon the court in every case where the evidence and the rational deductions from it are undisputed and of such a conclusive character that the exercise of a sound judicial discretion would compel a refusal to give effect to a contrary verdict.

Plaintiff was a resident of Little Rock, and her father and brother were residents of Hot Springs. Her father died at 6:30 Saturday morning, and her brother telegraphed her by means of the defendant this fact. The telegram was received in Little Rock at 10:24 a.m., but was not delivered until 9 a.m., the next morning. At 11 p.m. Saturday the plaintiff had learned all the material facts told by the telegram. She had sufficient money to pay her fare to Hot Springs, and there were two trains, which left at 7 and 9 respectively in the morning of Sunday, which would have taken her to Hot Springs in time to attend the funeral. She knew all these facts. She did not attend the funeral, and she testified that she did not do so because, while she had money to pay her fare to Hot Springs, she did not have enough to pay her fare back to Little Rock, and, while she had friends in Little Rock who would have loaned her the money, she did not have time to see them and get it. Held, there was no substantial evidence that the delay in the delivery of the telegram caused the plaintiff's absence from the funeral, and the evidence was conclusive that her absence was caused either by her indisposition or her lack of ordinary care to take one of the trains on Sunday morning after she was acquainted with all the necessary facts at 11 o'clock on Saturday night.

Rush Taggart and Geo. B. Rose (Geo. H. Fearons, U. M. Rose, and W E. Hemingway, on the brief), for plaintiff in error.

J. H Harrod, for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and ADAMS, District Judge.

SANBORN Circuit Judge.

Daisy Baker brought this action against the Western Union Telegraph Company, a corporation, for $5,000, and recovered a judgment for $1,500 damages on account of mental anguish and suffering which she alleged the company had inflicted upon her by its delay from 10:24 in the morning of Saturday, August 13, until 9 in the morning of Sunday, August 14, 1904, in delivering to her a telegram. Defendant denied that it was negligent, and denied that any of its negligence caused the damages. At the close of the trial the record disclosed these facts: Daisy Baker, the plaintiff below, lived in Argenta, about two miles from the business center of the city of Little Rock, in the state of Arkansas. Her father and brother lived about 52 miles distant, at the city of Hot Springs, in that state. Two railroads, called in the testimony the 'Choctaw' and the 'Iron Mountain,' connected these cities, and the time occupied by passenger trains in running upon them between the cities was from two to three hours. Passenger trains started at 7 and 9 in the morning of Sunday, August 14, 1904, from Little Rock to Hot Springs on these railroads. The Rock Island Railroad operated two trains between these cities on that day; one that left Little Rock at 7:30 in the morning and another that departed from that city at 2, and arrived there at 3:45 in the afternoon. The plaintiff's father died at Hot Springs on the morning of Saturday, August 13th, and her brother sent her a telegram by means of the defendant in these words: 'Pa died this morning at 6:30. Come if possible. ' The telegraph was received at Little Rock at 10:24 on the morning of that day, but was not delivered to the plaintiff until about 9 in the morning of the next day. The plaintiff, however, learned at 8 in the afternoon of Saturday, from a Mr. Bratton, a friend, that her father had died; but she did not then learn when he had died. At 11 o'clock that evening she learned from Judge Wood, another friend, that he had died that morning. The railroad fare from Little Rock to Hot Springs was $1.70. She could and would have attended her father's funeral if the telegram had been delivered to her on Saturday. She had $2 in her purse then and on Sunday, but she did not go, because, as she testified, she did not have money enough to make the trip, and the banks and stores were closed on Sunday, so that she could not get any. She testified that she tried to borrow some of three of her neighbors; that Mr. Bratton would have loaned her the money if she had asked him for it, but that he lived three miles from her home; and that she had a great many friends in Little Rock who would have furnished her the money if requested, but that she could not get to them in time to get off on any train. She also testified that her husband telephoned to the ticket agents of both railroad companies, and that he hold her that they informed him that there was no train after 9 o'clock in the morning on Sunday which would arrive in Hot Springs before 4 o'clock in the afternoon, which was the hour of the funeral, and that she did not know that there was a train on the Rock Island Railroad which left Little Rock at 2 and arrived at Hot Springs at 3:45 in the afternoon of August 14, 1904. No evidence was produced of any other material fact. The court refused to instruct the jury to return a verdict for the defendant, and this ruling is assigned as error.

There is no claim for any pecuniary loss involved in this action. It is founded upon a statute of Arkansas, which provides that all telegraph companies doing business in that state shall be liable in damages for mental anguish or suffering, even in the absence of bodily injury or pecuniary loss, for negligence in receiving, transmitting, or delivering messages, and that the jury may award such damages as they conclude resulted from the negligence of the telegraph companies. Laws Ark. 1903, p. 123, c. 68. The anguish or suffering for which the plaintiff sought to recover damages under this statute was that...