
    C. N. LANNING v. WESTERN UNION TELEGRAPH COMPANY.
    (Filed 26 May, 1911.)
    Telegraphs — Delayed Message — Delivery in Time — Negligence— Conflicting Evidence — instructions—Burden of Proof.
    In an action for damages for mental anguish alleging negligent delay in the delivery of a telegram announcing the sudden and serious illness of plaintiff’s mother, where there is conflicting evidence as to whether the defendant was negligent or the plaintiff had time after the delivery of the message to have taken a certain train and thereby have avoided the injury complained of, it is reversible error for the trial judge to refuse or omit to charge in accordance with a special instruction tendered by the defendant, that the burden was upon the plaintiff to show the alleged negligence and that it was the proximate cause of the injury.
    Appeal by defendant from Ferguson, J., at tbe October Term, 1910, of Swaiit.
    Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walicer.
    
    
      No counsel for plaint^.
    
    
      Geo. íl. Fearons and A. S. Barnard for defendant.
    
   "Walker, J.

Tbis action was brought to recover damages for mental anguish, suffered by reason of tbe negligent failure of tbe defendant to transmit and deliver to tbe plaintiff a telegram sent by bis father, who lived near Asheville, N. C., to Bryson City, N. C., near which place tbe plaintiff lived. Tbe message was delivered to tbe defendant for transmission on Sunday, 15 March, 1908, after office hours of defendant at Bryson City, and for that reason was not forwarded on Sunday, but tbe operator at Asheville, tbe next morning at five minutes after 8 o’clock, when bis office was opened, called up tbe operator at Bryson City, whose office should also have been open, but failed to get any response until at 8.28 o’clock. Tbe message was received at Bryson City at 8.30 o’clock, and prepared for delivery. It was banded to tbe messenger, who carried it to plaintiff’s bouse. He was not at home, but in tbe field, about one-quarter ■of a mile away. Tlie message was delivered to him there, but not in time, as be contended, to catch the train at Governor’s Island, the nearest station, and about one mile from his residence. The defendant contended that he had sufficient time, after the delivery of the message, to take the next train for Ashe-ville at that station. The messenger went to the station and waited there ten minutes for the train, which arrived on schedule time. The message announced the sudden and serious illness of the plaintiff’s mother, and plaintiff alleged that he was delayed in reaching his mother’s bedside nearly a day. We need not slate any more facts, as our decision turns upon the refusal of the Court to instruct the jury, as requested by the defendant, that the burden was upon the plaintiff to show the alleged negligence, and that it was the proximate cause of his injury. After a careful reading of the instructions of the Court, we have been unable to find any response to this prayer. The defendant was entitled to the instruction. Hauser v. Telegraph Co., 150 N. C., 557; Shepard v. Telegraph Co., 143 N. C., 244; Loyd v. Loyd, 113 N. C., 186; Hocutt v. Telegraph Co., 147 N. C., 186. The refusal to give the instruction was, perhaps, inadvertent, but it nevertheless requires that a new trial be ordered. It is not necessary to consider the other exceptions.

New trial.  