#### F. N. JOHNSON v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 3 January, 1919.)

Telegraphs — Commerce— Interstate Messages— Mental Anguish— Damages —Personal Injuries — Proximate Cause — Speculative Damages — Nominal Damages.

A recovery of damages for mental anguish alone may not be had on an interstate telegram announcing a death; and where a delay therein by the company has caused the sendee to miss a regular passenger train and he has obtained permission to ride’on a caboose car of a freight, from which ride he has received personal injury, and also such injury from fatigue in waiting from the nearest railroad station to his destination, upon the failure of being met by an automobile and his unwillingness to pay the price charged for hiring one, the failure to deliver the telegram in time is not the proximate cause of the physical injuries thus received, and they are also too speculative and remote, and nominal damages only are allow able.

Appeal by defendant from Ferguson, J., at Fall Term, 1918, of MacoN.

This is an action to recover damages caused by the negligent delay in the transmission and delivery of an interstate message from Franklin, N. C., to Kingsport, Tenn., informing the plaintiff of the death of his wife. From the verdict and judgment the defendant appealed.

J. Frank Ray, T. J. J ohnston, and P. B. D’Orr for plaintiff.

Merrimon, Adams & J ohnston and Tillett & Guthrie for defendant.

Glare:, C. J.

The complaint sets out three causes of action:

1. For mental anguish suffered by reason of the negligence of the defendant.

On the former appeal (175 N. C., 588) the Court held that this being an interstate message, recovery could not be had on that ground. The Court did not pass upon the other two grounds of action alleged.

*322. There was delay in the proper transmission of the telegram, which prevented the plaintiff from leaving- on the first passenger train which passed after the time at which the message should have been delivered. He secured permission to travel in the caboose of the freight train and had a rough ride, and there is evidence that he was injured by being-jolted and thrown against the steel ladder in the caboose, bruising his knee and wrenching his side.

3. The third cause of action was that when the plaintiff reached Dillsboro, N. C., whence he had to travel by private conveyance to-Eranklin, N. C., the automobile charge was more than he was willing to pay. The conveyance which he had wired to Eranklin to be sent not having arrived, the plaintiff set out to walk, and he put in evidence that he was seriously injured by the over-fatigue before the car which had been sent by his order met him.z

Without going into the details of the injuries and sufferings endured by the plaintiff on the freight train and in attempting to walk from Dillsboro to Eranklin, it is sufficient to say that in no sense can the delay in the delivery of the telegram be deemed a proximate cause of such injuries.

It is true that the ride on the freight train and the fatiguing walk occurred after the delay in the delivery of the telegram. If it had been delivered in proper time he might have been saved the trip by freight,, though it does not appear that he would have avoided the walk, for there is no evidence that the automobile charges from Dillsboro would have been less if he had arrived by passenger train. But the syllogism “post hoc, ergo propter hoc” is not conclusive as to proximate cause.

The delay in the delivery of the telegram might have caused, and doubtless did cause, mental anguish to the plaintiff by preventing him from reaching home by the earliest conveyance. But that -is out of this case, for the reasons given in our former opinion. But it did not cause the sufferings endured by the plaintiff in his trip- on the freight train. It was his own volition that he chose that method of conveyance, which required a special application by him to the railroad authorities. He-could have waited for the next passenger train. As to the physical injuries he sustained on the freight train, that is a matter for which he-must look to the railroad company. The defendant could not have foreseen or contemplated that if the message was not delivered the plaintiff would seek transportation by freight, nor that he would be roughly handled on such trip. Still less could the defendant be responsible for-the plaintiff undertaking to walk from Dillsboro to Eranklin. He could have waited for the car which he had wired his daughter to send from Eranklin, or he could have paid the price ($8 to $10) asked by the-automobile owner to carry him to Eranklin. There is no evidence that *33tbe price of tbe automobile transportation would bave been less if be bad arrived on tbe passenger train. Still less could it bave been in tbe contemplation of tbe defendant tbat if there was delay in tbe delivery of tbe message tbe defendant would set out to walk from Dillsboro, and tbat in doing so be would over-fatigue bimself.

Both these grounds of alleged damage are too remote and speculative. It is a settled principle tbat tbe law looks to tbe immediate and not tbe remote cause of damage, tbe maxim being “Gausa próxima, sed non remota, spectatur” Tbe cause of tbe damage on tbe freight train was tbe negligence of tbe carrier either in tbe handling of its train or in tbe defective condition of its roadbed or equipment. Tbe cause of tbe over-fatigue in attempting to walk out from Dillsboro was tbe mountainous road and tbe lack of physical strength in tbe plaintiff to endure tbe fatigue, and still more bis own bad judgment in attempting to walk so long a distance.

These matters bave been discussed recently in cases very similar to this. Young v. Telegraph Co., 168 N. C., 36; Garland v. R. R., 172 N. C., 638, and in Brown v. R. R., 174 N. C., 694, in which tbe plaintiff was injured by tbe weather, or otherwise, in walking from tbe station to destination because of tbe delay in transportation; and Chancey v. R. R., 174 N. C., 351, where tbe plaintiff sought to recover for robbery from bis person while a passenger on a train, upon tbe ground that, tbe car was overcrowded and not properly lighted. In these cases tbe Court held tbat there was not evidence of proximate cause to justify tbe submission of tbe issue of damages to tbe jury. Tbe authorities and tbe reasoning in these cases are so full tbat it would be mere repetition and an affectation of learning to do more than to cite them. They are recent, cases and exactly in point.

There having been negligence in tbe delivery of tbe message, tbe Court held, on tbe former appeal, tbat tbe plaintiff in any view was. entitled to recover tbe 65 cents paid for tbe transmission of tbe message, and therefore set aside tbe nonsuit. We presume tbat this has been. paid. If not, tbe plaintiff is entitled to judgment therefor in this action; but tbe court erred in refusing tbe defendant’s prayer to instruct tbe jury to answer tbe issue: “Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged,” in tbe negative.

Error.