
    FRANK HAUSER v. WESTERN UNION TELEGRAPH COMPANY.
    (Filed 5 May, 1909.)
    1. Negligence — Proximate Cause — Burden of Proof.
    In order to recover upon an issue involving defendant’s negligence, the plaintiff must show that the damages claimed arose as the proximate cause of the negligence as well as tie negligence alleged. '
    2. Same.
    When it is shown that, notwithstanding the negligent delay in the delivery of a telegram sued on, there were two routes the plaintiff could have taken'and avoided-the injury alleged, upon which an issue was made, whether .by the exercise of ordinary diligence the plaintiff could have avoided the injury, the burden of proof is on plaintiff on the issue, he being required to show that defendant’s negligence was the proximate cause of the alleged injury.
    ActioN tried before Justice J., and a jury, at February Term, 1909, Of ALEXANDER.
    Defendant appealed.
    
      J. H. Burke and L. C. Caldwell for plaintiff.
    
      Armfield & Turner and Tillett & Guthrie for defendant.
   Walker, J.

This action was brought to recover damages for mental anguish, alleged to have been caused by the negligence of the defendant in transmitting and delivering a telegram informing the plaintiff of his sister’s death. It is alleged that by reason of the negligence he was prevented from attending the funeral. The message is as follows:

Rockford, N. C., July 20, 1908.

Frank Hauser,

Taylorsville, N. G.

Gertrude Williams dead. Gome at once.

A. Hauser.

It appears that the plaintiff’s sister died at Tadkinville, which is about ten miles from Rockford-. He could have gone by either one of two routes from Taylorsville, where he lived, to Yadkin-ville: (1) by train from Taylorsville to Statesville, and tbence by driving to 'Tadkinville, a distance of 36 miles; (2) by driving to Wilkesboro from Taylorsville, a distance of 20 miles, and tbence by rail to Rockford, and tbence by driving to Tadkinville. He did not know tbat be could bave gone to Tadkinville by way of "Wilkesboro in time for tbe funeral, and be did not intend to go after be received tbe message, as it was delayed, and' be tbougbt it was too late for bim to reach Tadkinville before tbe funeral; but be would bave gone if tbe message bad been delivered before tbe train left for Statesville. There was other testimony as to whether tbe plaintiff bad exercised care and diligence in attempting to go to Tadkinville after be received tbe telegram.

Tbe Court submitted issues to the jury, which, with tbe answers thereto, are as follows: ■

1. “Did tbe defendant negligently fail to deliver tbe telegram, as alleged in tbe complaint ?” Answer: “Tes.”

2. “Could and would tbe plaintiff bave attended tbe funeral of deceased if tbe telegram bad been delivered in reasonable time?” Answer: “Tes.”

3. “Notwithstanding tbe negligence _ of defendant, if any, could tbe plaintiff, by tbe exercise of ordinary diligence, bave attended tbe funeral of deceased?” Answer: “No.”

4. “What damage, if any, is the plaintiff entitled to recover of defendant?” Answer: “Two hundred dollars.”

Numerous exceptions were taken by tbe defendant during tbe trial of tbe case, but tbe only one which we think it necessary to consider is tbe following objection to an instruction of tbe court, which tbe plaintiff assigns as error: “Tbe defendant contends tbat if tbe said plaintiff bad exercised due care and reasonable diligence, such as tbe law exacts of bim, be could have attended said .funeral after tbe said telegram was delivered; and if you should so find from tbe evidence, you will answer this issue 'Tes.’ (Tbe burden of proof upon this issue is on tbe defendant.)” Tbe burden of proof was not upon tbe defendant to show tbat tbe plaintiff bad not exercised diligence, but upon tbe plaintiff to show not only tbat tbe defendant bad been guilty of negligence, but tbat its negligence was tbe proximate cause of tbe damage to bim. Hocutt v. Telegraph Co., 147 N. C., 186. It is not enough to show that there has been negligence in order to entitle a plaintiff to recover; he must, in ■addition, show that the defendant’s negligence was the proximate cause of his injury. Negligence is not actionable unless it is the proximate cause of the damage. Brewster v. Elizabeth City, 137 N. C., 392. The burden is always, upon the plaintiff to prove every requisite of his cause of action. This is not a question of contributory negligence which would shift the burden of proof to the defendant, but it is one of the essential elements of the cause of action that the negligence of the defendant should proximately cause the damage.

There was error in misplacing the burden of jjroof by the instruction to which the defendant excepted.

New Trial.  