Appellee brought this suit against appellant, and recovered $350 damages on account of a failure to deliver a telegram within time to enable appellee to reach the bedside of his son before he died and while he was conscious. The message was delivered to appellant at Denison, Texas, and addressed to appellee at Durant, Indian Territory, which the proof shows was twenty miles from Denison. *Page 519
Appellee alleged in his petition that if the message had been sent and delivered with reasonable dispatch, he would have gone from Durant to Denison and reached his son before he became unconscious. He submitted testimony tending to sustain these averments.
The appellant introduced testimony tending to show that on the day in question the passenger train running from Durant to Denison was several hours late, and that if the message had been sent and delivered with reasonable dispatch, the appellee could not have gone from Durant to Denison by railway, as he testified he would have done.
Thereupon, and after appellant closed its testimony, appellee took the stand and testified that if he had received information that the train was five or six hours late, he would have gone from Durant to Denison in a buggy, and that he could have made the trip in three hours' time.
Appellant requested the court to instruct the jury that unless they believed from the testimony that the message could have been delivered to appellee in time for him to have gone by train and reached his son before he became unconscious, to find for appellant.
This instruction was refused, and the court's charge did not restrict the jury to a finding that appellee could have reached Denison before his son became unconscious by any particular mode of traveling. We think the court's charge was correct and that the special instruction was properly refused.
The other requested instruction relating to that subject were properly refused, because they restricted the jury to a finding that appellee would have gone to Denison by train. There was testimony tending to show that if appellee had received the telegram in proper time, he would have ascertained that the train was late, and gone to Denison in a buggy in time to reach his son before he became unconscious.
Appellant's requested instruction on the subject of contributory negligence on the part of the sender of the message was properly refused, because that issue was fully and correctly presented in the court's charge. And the same may be said in reference to special charge number 12, instructing the jury that appellant was not an insurer, and that if they found from the evidence that it had exercised ordinary care to promptly deliver the message to appellee, then to find for appellant. Appellant was not sued as an insurer, and it was not necessary for the court to instruct the jury upon that subject; and appellant concedes that the court instructed the jury to find in its favor if they believed from the evidence that it exercised ordinary care in the transmission and delivery of the message.
The verdict is supported by testimony and we overrule the assignment which charges that it is excessive.
Nor error has been shown, and the judgment is affirmed.
Affirmed.
Writ of error refused. *Page 520