
    NANNIE J. BAILEY and husband v. WESTERN UNION TELEGRAPH COMPANY.
    (Filed 24 March, 1909.)
    1. Telegraphs — Delivery of Message — Negligence—Evidence.
    Evidence that the husband of feme plaintiff told the messenger who, about four hours afterwards, delivered the message, that he was expecting a message, and to bring it out to his wife, is competent, upon the question of negligent delay in delivery, when the addressee lived but a short distance from defendant’s'office and delivery was delayed several hours.
    2. Telegraphs — Death Message — Evidence—Mental Anguish.
    When there is evidence tending to show negligence on the part of defendant telegraph company in delivering a message announcing the death of a sister, evidence of mental anguish suffered by plaintiff is competent.
    3. Telegraphs — Delivery of Message — Negligence—Damages—Avoidance — Evidence.
    When negligent delay is shown in the delivery of a message, and the uncontradicted evidence in defense is that by driving a distance through the country trains could have been caught which would have enabled plaintiff to have reached destination before the funeral, the court cannot say, as a matter of law, that it was plaintiff’s duty to thus avoid the injury, but the question is one for the jury, under all the facts and circumstances of the case.
    Action tried before Lyon, I., and a jury, at December Term, 1908, of DupliN.
    Defendant appealed.
    
      Stevens, Beasley & Weeks and H. A. Grady for plaintiff.
    
      J. D. Bellamy & Son for defendant.
   Clark, C. J.

Tbis is an action for negligence in delayed delivery of a message sent to plaintiff, at Warsaw, N. C., informing her that Mrs. Elmore (who was her sister) had died that morning and would be buried next afternoon. The telegram was sent from La Grange, N. C., on Sunday, and reached Warsaw that afternoon at 5 :33, but was not delivered until 9 :30, being too late for plaintiff to take the train going north, which passed at 8:51, and which the plaintiff says she would have taken and could have gotten to tbe residence of tbe deceased, eight mies south of LaGrange, in time for tbe funeral. Tbe next train going in that direction passed next day at 11 A. M.', too late to get to tbe funeral by going to LaGrange.

Tbe husband of plaintiff met. tbe telegraph messenger, who was also a railroad station band, going to tbe depot, where tbe husband himself bad just been, about 6 P. M., and told him be was expecting such a message, and to bring it right out,, as bis wife, in such event, would go on tbe 8 :51 train. This was excepted to, but was competent as tending to show that with inquiry tbe agent could have learned where plaintiff resided. Tbe same messenger brought tbe telegram to plaintiff’s residence, which was 300 yards from tbe depot, about 9 :30 o’clock. Warsaw is a town of 750 inhabitants. It cannot be seriously contended that tbe defendant was not guilty of negligence; nor was there error in admitting evidence that plaintiff suffered mental anguish because of failure to receive tbe message in time to take tbe 8 :51 train. That is tbe gist of tbe action. Tbe object in using the telegraph was to give the sendee opportunity to attend tbe funeral.

There was evidence that plaintiff, by getting up at 5 o’clock next morning, could have driven across tbe country, twenty-seven to thirty miles, and thus have reached tbe funeral in time, notwithstanding failure to catch tbe train — tbe 8:51 train — tbe evening before, or have gone on at 11 A. M. to Goldsboro and driven from there, some fourteen miles. Tbe plaintiff introduced evidence of her husband’s physical disability to ride so far, and she might have been unwilling to travel across country without him. We could not bold as a matter of law that it was incumbent on plaintiff to make such exertions as that to cure tbe defendant’s neglect. At tbe most, failure to do so, if practicable, would be a matter in mitigation of damages, and there was no prayer asked in that view. Tbe court ruled that it was plaintiff’s duty to use all reasonable diligence to avoid tbe consequence of defendant’s delay in delivery of tbe message and submitted to tbe jury, upon-tbe evidence, as an issue of fact: “Could tbe plaintiffs, by tbe exercise of reasonable diligence, have attended tbe funeral, -notwithstanding tbe failure of tbe defendant to deliver the telegram in time to take the northbound train on 28 July, 1907?” to which the jury resxionded “No.” "We do not -find that the other exceptions require discussion.

No Error.  