Vol. I.]

DORGAN V. THE TELEGRAPH COMPANY.

[No. 9.

thus made. For although the facts unexplained show negligence, the defendant may, by evidence, so excuse and explain its conduct as to make it perfectly clear that there was, in fact, no negligence whatever.

This the defendant has undertaken to do. It claims to have shown that the message was not promptly transmitted on account of obstructions beyond its control, and which are peculiarly incident to the transmission of intelligence by telegraph. The rule of law governing this branch of the case may be thus stated: Those who use the telegraph as a means of communication, unless they insure the delivery of their messages, take the risk of delay and failure of their messages to reach their destination arising from the accidents and obstructions to which telegraphic lines are liable.

Apply this rule of law to the facts in this case. Has the defendant satisfied you by the evidence that the reason why the message of plaintiff did not reach Mobile until ten o'clock P. M. was owing, not to the negligence or carelessness of any of the defendant's agents, but to obstructions in the line which the defendant could not foresee or prevent. If you so find, then the defendant has succeeded in disproving the charge of negligence so far as the delay in the transmission of the message to Mobile is concerned.

It is the duty of a telegraph company to transmit messages impartially, in good faith, and in the order in which they are received. Crouch v. Railroad Co. 14 C. B. 255; Johnson v. Railroad Co. 4 Exch. 367; Wibert v. Railroad Co. 2 Kernan, 245.

If the defendant has satisfied you that its adherence to this rule contributed to the delay in the transmission of the plaintiff's message, and that such adherence, combined with obstructions in the working of the line, caused the delay in the transmission until ten o'clock P. M., then the prima facie case of negligence, so far as concerns the transmission of the dispatch, is overcome, and you should find that the defendant was not in fault in failing to transmit the message at an earlier hour.

Under these instructions you will determine whether the defendant was guilty of negligence in not transmitting the dispatch to its destination before ten o'clock P. M.

If you shall be of opinion that the telegraph company was not in fault, but used due diligence to transmit the message, and was prevented from so doing as claimed, you will then proceed to inquire whether the defendant has shown that there was no negligence in the delivery of the message after its arrival in Mobile.

Was the defendant bound to deliver the message after ten o'clock at night?

If the message showed upon its face that its delivery that night was a matter of importance to the plaintiff, and that a failure to deliver immediately would involve him in loss, and it appeared that the message was a day message and had been delayed, then it is for you to say whether due diligence did not require of defendant to deliver the message at once, or at least make an effort in good faith to do so.

If, on the other hand, the message did not on its face indicate the importance of immediate delivery; if the plaintiff had left no notice at the office of defendant that he expected an important message, and had not requested

Vol. I.]

DORGAN V. THE TELEGRAPH COMPANY.

[No. 9.

its immediate delivery, and the message actually arrived after the messenger boys had been dismissed for the night, and after the hour for closing the telegraph office had passed, and after the plaintiff had closed his own office and gone to his residence, a mile, or a mile and a half from the telegraph office, if you find these facts, then you will consider and determine whether due diligence required under these circumstances the delivery of the message on the night of the 30th of January. If you find that it was not reasonable, under the circumstances, that the defendant should be required to deliver the message on the night of its reception, you will be justified in the conclusion that the defendant was not guilty of negligence in not delivering the message on the night of the 30th; and you should then inquire whether there was negligence in not delivering the message at an earlier hour than half past ten o'clock A. M. of the next day.

Ought the defendant to have delivered the message at an earlier hour on the 31st? Before passing upon this question there is another raised by the evidence that you should decide upon. The defendant claims to have introduced proof sufficient to show that the message was taken to the office of defendant between eight and nine o'clock A. M., and was not delivered because there was no one there to receive it. Whether this is the fact, or whether the message was taken to the office of plaintiff for the first time at half-past ten o'clock A. M., you will decide whether there was, under all the circumstances, negligence in the delivery of the dispatch on the morning of the 31st.

If under these instructions applied to the facts you shall be of opinion the defendant has rebutted the prima facie case of negligence made by the plaintiff, and has explained satisfactorily the delay in the transmission and delivery of the message, then that is the end of the case, and it will be your duty to return a verdict for the defendant.

If, on the other hand, you should be of opinion that the defendant has been guilty of negligence in the premises, you will then proceed to consider other matters of defence.

One of them is that if the plaintiff suffered any damage he contributed to bring it about by his own carelessness and neglect.

The rule of law upon this branch of the defence has been thus stated: One who is injured by the mere negligence of another cannot recover any compensation for his injuries if he, by his own ordinary negligence, contributed to produce the injury of which he complains.

See Shearman & Redfield on Negligence, sec. 25, and cases there cited. I give you this as the law upon the point in question.

The defendant insists that the plaintiff, by sending a message of inquiry to New York might have avoided the loss of which he complains, and that, had he acted as a prudent man, he would have done so. That being in negotiation for the sale, both in New York and Liverpool, of the same five hundred bales of cotton, which he alleges he had on hand on the 30th inst., having made an offer to sell in New York, he should not have sold in Liverpool without ascertaining definitely whether his New York offer had been accepted.

Now, this is a point upon which you must judge. What were the dictates of ordinary prudence and care? If a prudent and careful man

Vol. I.]

DORGAN U. THE TELEGRAPH COMPANY.

[No. 9.

would have telegraphed to New York before closing the sale in Liverpool, and by failing to take this precaution the plaintiff has contributed to his own damage, and if by the use of this means he might have, and should have, avoided the injury, he cannot recover. His own negligence is a complete bar to his recovery. As men of experience in business affairs, you must determine whether in this respect the plaintiff was in fault. If upon this issue you find for the defendant, that, also, will put an end to the case, and it will be your duty to return a verdict for the defendant. If you shall be of opinion that the defendant was guilty of neglect, whereby the plaintiff suffered damages, and that the plaintiff did not contribute to his own damage by his own neglect and could not have avoided the damage by the exercise of ordinary prudence and skill, then it will be your duty to return a verdict for the plaintiff for some amount.

Ordinarily, this amount would be the difference between the value of five hundred bales of cotton in Mobile on the 30th of January, 1872, and of the same quantity of cotton in the same place on the next day. This difference is shown to be $899.43.

But what that amount should be in this case will depend upon some considerations which I am about to submit to you.

The damage sustained by the defendant must have been within the reasonable contemplation of the parties at the time the contract for the transmission of the message was made. If the plaintiff, through his agent in New York at the time he left the message for transmission, informed the defendant's agent that the message was important, and the dispatch itself indicated that it was a business message, and that serious damage might accrue to the plaintiff if it was not promptly transmitted, it became the duty of defendant to use diligence to put it upon its transit, and it would become liable for the damage which might be the result of negligent delay in sending the message. But if the plaintiff's agent simply said it was an important message and requested its early transmission, but the dispatch itself was so worded that it did not in any way indicate that the plaintiff might suffer damage by its delay, then the plaintiff would only be liable for nominal damages.

If the negligence should be found in the delivery of the dispatch, after it had reached its destination, you should not give any weight in estimating the damages to what was said by the plaintiff's agent at the other end of the line about the importance of the dispatch. The question is, was the agent of the company here in Mobile, under the circumstances, and looking to the words of the dispatch, put upon notice that a failure to deliver it promptly would entail a serious damage upon the plaintiff. If he was, that is sufficient to sustain the plaintiff's claim to recover all the damage that he has sustained. If he was not, if it only appeared to the agent in Mobile to be a dispatch announcing a sale in New York of five hundred bales of cotton in response to an offer by the plaintiff to sell that amount made at a certain hour in the day by message from Mobile, and gives information about the details of the sale, and if it contained no reasonable notice that damage might accrue from delay in its delivery, then the damage for the delay would be nominal only.

Another matter should be borne in mind in estimating the damages, namely, that you are only to allow such damages as were caused by the

Vol. I.]

DORGAN V. THE TELEGRAPH COMPANY.

[No. 9.

negligence of the defendant. Was there any negligence of defendant on the 30th of January? If there was, would the plaintiff have been able to avoid the injury he claims to have suffered, even had the defendant been prompt in transmitting and delivering the message. In other words, could the plaintiff after the time when he claims the message should have reached him on the 30th, have purchased five hundred bales of cotton for any less amount than he was compelled to pay the next day. If he could not, his damage is not the result of the neglect of defendant, and he cannot recover. But suppose you should find there was no neglect on the 30th, but there was neglect on the 31st of January? You will then inquire whether if the defendant had delivered the message on the 31st, at the time demanded by its duty, the plaintiff could have avoided loss. Suppose you should conclude that the message should have been delivered at seven o'clock or eight o'clock or nine o'clock A. M., of the 31st; could the plaintiff have purchased five hundred bales of cotton cheaper at these hours than at half past ten, when the message was in fact delivered? If he has not satisfied you that he could, then he can only recover nominal damages.

There is but one point more that I deem it necessary to notice.

The blanks upon which the defendant requires all messages for transmission to be written contain, under the words "All messages taken by this company subject to the following terms," this stipulation, "To guard against mistakes, the sender of a message should order it repeated, that is, telegraphed back to the originating office. For repeating, one half the regular rate is charged in addition; and it is agreed between the sender of the following message and this company that the company shall not be liable for mistakes or delays in the transmission or delivery of any unrepeated message beyond the amount received for sending the same.

It is claimed by defendant that this stipulation was brought home to the notice of plaintiff; that his assent may be therefore presumed, and that it is binding, and limits the recovery in this case to the amount paid for sending the message.

Under the instructions I am about to give you, it will be unnecessary for you to consider whether this notice was assented to by the plaintiff or not. I instruct that so much of this alleged contract as provides that the company shall be liable for delays in the delivery, or for the non-delivery, of an unrepeated message only to the amount paid for sending the same, is not binding; the company had no right to exact it; that it is against public policy, and absolutely void.

The telegraph company is engaged in a quasi public employment. A large portion of the business of the civilized world is carried on by means of the facilities for intercourse which it affords. Incalculable sums depend upon the alacrity, care, and good faith which it brings to the discharge of its duties. The whole business of the commercial world is to a degree dependent upon it. The public has the right to exact at least ordinary diligence. A common carrier is not allowed to protect himself by contract from liability for the results of his own negligence. N. Y. Central R. R. Co. v. Lockwood, U. S. Supreme Court, Oct. Term, 1873. 1 Am. L. T. R., N. S. 21.

There seems to be no good reason why the same rule should not be ap

Vol. I.]

LEONARD V. STORER.

[No. 9.

plied to a telegraph company. Shearman & Redfield on Negligence, sec. 565; True v. Telegraph Company, 60 Maine Rep.; S. C. Allen's Telegraph Cases, 530; Fraham v. Telegraph Co. 10 Am. Law Reg. N. S. 319. Cauber v. Telegraph Co. Amer. Law Review, vol. 8, p. 374. I therefore instruct you that you should not allow this alleged contract for immunity for all except nominal damages for negligence to have any effect upon your verdict.

The jury returned a verdict for defendant.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

[TO APPEAR IN 115 MASS.]

INJURY FROM ICE FALLING FROM ROOF OF HOUSE UPON PERSON TRAVELLING UPON HIGHWAY.

LEONARD et al. v. STORER et al.

The owner of a building with a roof so constructed that snow and ice collecting on it from natural causes will naturally and probably fall into the adjoining highway, is not liable to a person injured by such a fall upon him, while travelling upon the highway with due care, if the entire building is at the time let to a tenant, who has covenanted with the owner" to make all needful and proper repairs both internal and external," it not appearing that the tenant might not have cleared the roof of snow by the exercise of due care, or that he could not by proper precaution have prevented the accident.

TORT to recover for injuries sustained by the female plaintiff on account of snow and ice sliding from a building owned by the defendant upon her. In the superior court the following facts were agreed:

"That in the winter of 1869, the defendant was the owner of a building on the southerly side of Winter Street, in the city of Boston, and contiguous to said street; that the said building was covered by a slated, pitched roof (the pitch of which is thirty-two degrees), upon which snow and ice collected and slid into said street, in the winter season, to the same extent to which it collected upon and slid from other pitched roofs of said pitch, and there was no guard or protection upon the building to prevent it so sliding; that said Winter Street was a public highway in the city of Boston, and the female plaintiff was passing along on said street, as she lawfully might, and as she was so passing along and using due care, and without any fault of hers, the snow and ice slid from the roof of said building upon her, whereby she was injured; that on the first day of May, 1857, the defendant leased the said building and premises to Jacob Fullerton, for the term of fifteen years from that date, by a written lease, duly executed, by the terms of which the lessee took the entire building and agreed to make all needful and proper repairs, both external and internal, of the demised premises,' and the right was reserved to the lessor to enter or send agents into and upon the same to