#### T. H. POE v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 30 October, 1912.)

1. Nonsuit — Appeal and Error — Plaintiff's Evidence — Contradictory.

Tlie court on an appeal from a judgment of nonsuit, in viewing tbe evidence in tbe light most favorable to the plaintiff, cannot act upon a portion of the testimony of plaintiff’s witness which sustains the contention of the defendant, though such testimony impairs the force of the other statements made by him.

2. Telegraphs — Negligence—Delay in Delivery — Evidence.

In an action for damages for the negligent delay in the delivery of a telegram by a telegraph company, a delay in the delivery of four hours from one point in the State to another, about one hundred miles apart, is some evidence of negligence.

3. Telegraphs — Delay in Delivery — Mental Anguish — Means of Conveyance — Physical Condition — Negligence — Evidence — Damages.

When there is evidence of negligence on the part of defendant telegraph company in the delay of a telegram announcing the death of a sister, it is competent for the plaintiff to introduce evidence tending to show that his physical condition was such at the time to prevent his availing himself of the only means he had of reaching his destination in time for the funeral, by going part of the distance by train and a part by private conveyance, and that by reason of the delay in delivering the telegram he was prevented from taking an all-rail journey, for which he did not have the money, but could have borrowed it, and that he suffered mental anguish in consequence.

Appeal by plaintiff from Whedbee, J., at July (Special) Term, 1912, of DukiiaM.

*316Tbis is an action to recover damages for mental anguish, alleged to have been caused by tbe negligent failure of tbe defendant to deliver a telegram. At tbe conclusion of tbe evidence for tbe plaintiff, bis Honor entered judgment of nonsuit, upon motion of defendant, and tbe plaintiff excepted and appealed.

Bryant & Brogden for plaintiff.

Fuller & Reads for defendant.

AlleN, J.

Applying tbe rule that, upon a motion to nonsuit, tbe evid'ence must be viewed in tbe light most favorable to tbe plaintiff (Mizzell v. Manufacturing Co., 158 N. C., 267), and that we cannot act upon tbe portions of tbe testimony of a witness which sustain tbe contention of tbe defendant, although they may impair tbe force of other statements made by him (Dail v. Taylor, 151 N. C., 289; Hamilton v. Lumber Co., 156 N. C., 523), we are of opinion that it was error to enter judgment of nonsuit upon tbe plaintiff’s evidence.

It was admitted that a telegram, addressed to tbe plaintiff at West Durham, was delivered to tbe defendant at Ashboro at 7:50 o’clock of tbe morning of 16 September, 1911, informing him of the death of bis sister at Denton in Davidson County, and requesting him to come at once, and that tbe defendant undertook to transmit and deliver tbe same.

Tbe plaintiff offered evidence tending to prove that be was well known in West Durham; that be lived within one-fourtli mile of tbe depot; that be was about bis home during tbe morning, and that tbe telegram was not delivered to him until about 12 o’clock.

In tbe absence of any explanation, a delay of four hours in delivering a telegram from one point to another in tbe State, about one hundred miles apart, is some evidence of negligence. Meadows v. Telegraph Co., 132 N. C., 41.

Tbe plaintiff also offered evidence tending to prove that if tbe telegram bad been delivered promptly, be could and would have left Durham at 10 o’clock on tbe morning of 16 September, and would have arrived at Denton about 4:30 o’clock p. m. of tbe same day, before tbe funeral of'bis sister; that after tbe telegram was delivered, be could not reach Denton by rail in time *317to attend the funeral; that his physical condition was such that he could not safely go from Durham to Thomasville on a later train and drive about seventeen miles to Denton, and that he suffered mental anguish.

He testified, among other things:

Q. Had you been to see your sister at any time recently before this message? A. Somewhere about five or six weeks.

Q. Was she sick at that time? A. Yes, sir.

Q. Where was she at the time you went to see her? A. At Mr. Putnam’s.

Q. Where was that ? A. At Denton, N. 0.

. Q. What train did you go on when you went to see your sister? A. On the evening train. I left West Durham somewhere about 10 o’clock in the morning.

Q. What time did you get to Denton? A. About 4:30 in the evening..

Q. How did you go? A. I went from here to Thomasville and changed trains there and went out on the Piedmont road.

Q. From here to Thomasville, what road do you travel on? A. On the Southern.

Q. What road from Thomasville to Denton?' A. Piedmont road.

Q. Was there any other railroad there? A. No, sir.

Q. Did that road run on Sunday? A. No, sir.

Q. Was there any train that you could have reached Denton on before Monday after the morning train passed West Durham on Saturday morning? A. No, sir; not until 4:30 Monday evening.

Q. State whether or not, if you had gotten the telegram on Saturday morning before the west-bound train arrived, state whether or not you would have gone? A. Yes, sir; I would have gone as quick as I could get there.

Q. Could you have gone? A. Yes, sir; by rail.

Q. Did you have sufficient money to pay your way by rail? A. No, sir; but I could borrow it, I suppose, from others.

Q. Did you have some money? A. Yes, sir.

Q. Mr. Fuller asked you about the team. You said you never made a trip over that road? A. No, sir.,

*318' Q. What else did you say about tbe money, to bire a team ? A. I didn’t have it, tbougb I could borrow it. I bad just about enough to make railroad fare.

Q. Wbat was your condition at tbat timé as to sleep and bealtb? Were you able to bave made tbe trip at nigbt if you bad been there and bad money to bire a team and could have gotten one? A. Not safely. I didn’t want to undertake it.

Q. You don’t know whether you could have succeeded or not? A. No, sir.

Q. State whether or not your failure to get to tbe funeral of your sister has caused you any mental suffering or anguish? A. Yes, sir; it certainly has.

There is also evidence on tbe part of tbe plaintiff which detracts materially from tbe evidence we bave quoted, but we are not at liberty to rest our opinion upon contradictions in tbe evidence, as the law commits to tbe jury tbe duty of determining tbe weight tbat shall be given to tbe evidence.

Reversed.