| Show that is alie amount raty brown IS TO RECEIVE FROM the western union telegraph company the supreme court of the territory on friday rendered judgment against the western union telegraph co and n favor of katy brown on the of april 1888 katy brown five years old was hurt at promontory box elder county having her finger broken in a railway turntable A telegram was sent 0 o orten for a doctor to come on the next train which was to leave about tareo hours after the telegram was received the message was not delivered until the following day bo cause it was received after office hours and when the child received surgical attention the next day her finger had to be amputated suit was brought against the western union telegraph company and the jury awarded the child damages the supreme court approved this verdict the court said of the case so far as the first point of the defence is concerned that is that the proof does not sufficiently show that the result to the plaintiff would have been different had the dispatch been delivered this court is content to observe that all those matters wore submitted fairly and under proper instructions by the trial judge to the jury and the jury having found against the defendant the rule of this court is that it will not disturb the verdict of a jury when the evidence tends to support it and under rule the case i alls but the more important question arises on the ground as to the right of the defendant to establish rules for its guidance in the delivery of telegrams the only complaint when the case is stripped of its verbiage is that the defendant company were guilty of negligence in failing to deliver this telegram anen it reached ogden city from that office promontory to brown the person to whom it was sent and the direct defence of the defendant is that it was received after its office hours which it had the right to establish and that therefore there was no negligence in other words the defendant says that wo have the right to establish hours for the transmission and delivery of dispatches and we have the right to judge of the reasonableness of those hours and that so long as we are within the of the rules and hours which we have established we are guilty 0 no negligence we are of the opinion that having received and transmitted this dispatch the measure of negligence to bo applied to the condret of the defendant with reference to its delivery is not to be decided by any rules or hours that the company may see fit to establish this defendant company by its invitation to the public to use its lines for the transmission tran mission of messages impliedly grants to the public an interest in the use of its wires and having done this like all other institutions of the like character its rules and regulations are at all times open to inquiry as to their reasonableness son and its conduct is at all times open to inquiry as to whether it is guilty of negligence or not we are of the opinion that the question in this case of reasonableness of these rules of the company was properly submitted to the jury and we are also of the opinion that the question of whether this company was guilty of negligence in failing to deliver the dispatch was perfectly submitted to the jury and in both instances the jury found against the defendant in order that there may be no misunderstanding as to the judgment of the court in the case wo lay down the following rulo as applicable to the facts of this case it will be observed that this dispatch was in plain unambiguous language it said send doctor on first train katy has broken her finger when that dispatch was received at promontory for transmission and when it was received at ogden by the agents of this defendant the import unco of prompt and active conduct upon the part of the defendants agents in delivering that telegram was made manifest from its very reading and we hold that the degree of diligence required of the defendant was oqual in importance to the emergency of the occasion and this without ny regard to rules and hours established by the company as testified to in this regard it must bo kept in mind that this company at promontory by its rec boived this dispatch and received the money for its transmission and that was transmitted to the office at ogden that this dispatch was to the effect that a child was suffering with a broken finger that it was important that a physician and sent and to on bo immediately allow the defendant upon the pretense that it was received out of office hours to let it lie there until the next morning and then to excuse it from delivery under such circumstances would be tho greatest injustice it would be to put the public at the mercy entirely or we may say the caprice and will of public institutions to which they aro compelled to resort in tho transactions of business so far as the receipt and delivery of telegrams with reference to commercial transactions are concerned we do not express any opinion but we do not hesitate to say that when a dispatch is shown to be received by the company for transmission which upon its face demonstrates the importance of delivery as in this case the degree of diligence is to be in proportion to the exigencies of the case nor has ahe defendant the right to complain at this it sets itself up as a transmitter of messages and like all other institutions it should be willing to deal with the public in a fair and just manner and not undertake to screen itself behind mere office rules and hours which in all probability are made for the mere convenience of thy employees and especially in cases like this where human pain suffering and do formation hang upon prompt action the case vas fairly submitted by the court to the jury under instructions in some respects more favorable to the defendant than the law warranted and we are satisfied that substantial justice has been reached and the judgment i of the court below will be affirmed with the costs |
