Western Union Telegraph Company v. Matthews. which was beyond appellant's limit for delivering messages, notice was given the sender the same afternoon, to-wit, November 12, apprising him that if he would guaranty the additional expense, which was estimated at $1.50, the message would be transmitted. The sender did not communicate with the Springfield office, however, until the next af ternoon. He then told the agent that he would guaranty the payment of the charges. This was wired to the Shelbyville office at once. The Shelbyville office, not having heard anything from the Springfield office on the afternoon of the 12th, nor the morning of the 13th, had left the message at the livery stable of Long & Weber, where Mr. McGaughey stopped whenever in town. Upon being notified from Springfield on the afternoon of the 13th of the guaranty of additional charges, the Shelbyville agent sent to Long & Weber, and was informed that the message had been delivered to McGaughey. They learned no better until the fcllowing afternoon, when some one from the livery stable brought the message to the Shelbyville agent, who immediately employed a runner to deliver the message in the country, which was done. It was delivered at 7:30 o'clock Saturday evening. This was too late for any train leaving Shelbyville for Louisville that night. There were two trains leaving for Louisville in the morning, one at 6 o'clock over the Louisville Southern, and one at 10 o'clock over the Chesapeake & Ohio. Had appellee taken the one leaving Shelbyville at 6 o'clock, she would have arrived at Louisville in time to have made connection with the morning train for Lebanon, which was about nine miles by turnpike from her father's residence. There were no Sunday trains (the 14th was on Sunday) to Springfield. Appellee took the Chesapeake & Ohio train on Sunday morning, which placed her in Louisville too late for the Lebanon train. She remained Western Union Telegraph Company v. Matthews. in Louisville with a relation until the following afternoon. There were two trains leaving Louisville daily, except Sunday, to Springfield, one at 8:30 in the morning, and the other in the afternoon. Instead of taking the morning train, appellee first sought to learn, by telegraphing a friend at Springfield, as to her father's condition. She did not hear in time to take the morning train. When she arrived Monday afternoon he was dead, having died about 3 o'clock in the afternoon. In this suit for damages she was awarded a verdict of $500. 1 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 the 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 Shelbyville, 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. 44. What did you do the next morning? A. Western Union Telegraph Company v. Matthews. I got up and 'went to the Tenth street depot about six o'clock and sent a telegram to Father Hennessy to know State whether or not you Q. 48. how father was. Q. 51. Why didn't you go on that? A. I sent the telegram and wanted to see if I could hear from my father, and if he was dead go back to my sick child. Q. 52. What did you do when you failed to get that dispatch; what did you do? A. Sent a telephone to Mr. Russell. Q. 53. What information did you get from Mr. Russell? A. Father was very low." We are of opinion that all of this was irrelevant, for the reasons above given. It should have been excluded. 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 his 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, Electic Law, sec. 972. The injury to the plaintiff in this case and similar ones is the mental anguish suffered Vol. 118-13 Western Union Telegraph Company v. Matthews. because of the disappointment experienced by being deprived of an opportunity to be present at the closing hours or the death of a near relative. Where the negligence is the proximate cause of this deprivation and the consequent suffering, the law allows a recovery against the wrongdoer. to compensate for the injury sustained. There is, however, in all instances of negligent injury, the duty upon the injured party to do what he can by making reasonable exer. tions to render the injury as little as possible. This duty is positively imposed by every consideration alike of public interest and sound morality. Marr v. Telegraph Co., 85 Tenn., 550, 3 S. W., 496; Telegraph Co. v. Briscoe (Ind. App.) 47 N. E., 473; Telegraph Co. V. Mellon (Tenn.), 33 S. W., 727! Railroad Co. v. Clark's Adm'r, 20 R., 1375, (49 S. W., 323); Railway Co. v. Stephens, 14 R., 803, (22 S. W., 312). Nor is it at all required that the contributory negligence of the injured party should have been the sole cause of the injury. By the instruction given on this subject the trial court appears to have imposed upon the jury the necessity for believing, that before they could find for . the defendant on account of plaintiff's alleged contributory negligence they must find that it was by reason thereof that plaintiff was prevented from arriving at her father's bedside before he became unconscious, or before his death. We are of opinion that it is sufficient that if the jury should find that, after plaintiff received the message, she failed to exercise that degree of care to reach her father before his death or insensibility that an ordinarily prudent person would have used under similar circumstances, and that her failure to use such diligence contributed directly and proximately to her failure to see her father before his death or such unconsciousness, then the jury should have found for the defendant, notwithstanding they may believe the defendant Western Union Telegraph Company v. Matthews. was guilty of negligence in delivering the message to plaintiff. Upon a return of the case and another trial, the court should give an instruction on this subject, submitting the idea just presented. 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. It 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 and 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 consideration so received, or even more, to the runner whom it employed to make the special delivery. Nor can we agree that the making of such a contract by the agents of the telegraph company and the sender of the message was 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 to 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. But, for the errors herein indicated, the judgment is reversed, and cause remanded for a new trial not inconsistent herewith. |