dissenting. The uncontradicted evidence is that the sister of plaintiff being at the point of death in New Bern, her husband, at her request and in consequence of her prior promise to plaintiff in such contingency, on October 3, 1901, at 4:15 p. m., sent a message, which the company’s agent wrote for him, to the plaintiff at Pollocksville: “Will Phillips’ wife at point of death.” The husband prepaid the message, which was written by defendant’s agent, who testified that he knew it was an important message. The train passed Pollocksville coming to- New Bern at 5 :04 p. m. The plaintiff was at work a little more than half a mile from the station in Pollocksville, but in plain view of the office, as was also his house near by, and the message could have been delivered in less than fifteen minutes. The defendant made no effort to deliver the message, but kept it till 6:55 p. m., and then wired back to New Bern for fifty cents more to deliver the message, the residence of plaintiff being just outside of the free-delivery limits. The fifty cents was promptly sent, but the message was not delivered to plaintiff till 8:30 p. m., four hours and fifteen minutes after its receipt by the defendant. The plaintiff contends that it was negligence not to have at once wired back for money to pay for extra service, and that if this had been done, plaintiff could have, come to New Bern on 5:04 train, before his sister became unconscious.
The .Court, in its charge to the jury, incidentally said: “The company is required to use due diligence in the delivery of a message; by this is not meant the speed of the lightning, except in the transmission of the message over its wires, nor the proverbial slowness of a messenger boy, but it is required to use reasonable diligence, and nothing moi’e.” The defend*77ant excepts because of the use of the words “proverbial slowness of a messenger boy.” This could not possibly have banned the defendant, nor have, been any expression of opinion whatever npon the controversy in this case. There was no contention by plaintiff that the messenger boy was slow. the jury did not have to consider that matter in any possible view of the case. It was not controverted that defendant received the message at 4:15 p. m., that the only train on which plaintiff could have gone to New Bern passed Pollocksville at 5:04, and that defendant took no steps to deliver the message at that time, and did not telegraph to New Bern for money to send the message out till 6:55. This was the ground relied upon to show defendant’s negligence. Hendricks v. Tel. Co., 126 N. C., 304, 78 Am. St. Rep., 658. When at last at 6:55 defendant wired for money to- send the message, the damage bad been done, the train bad passed, and there is no allegation that when the message was finally delivered to the messenger boy, after 8 p. m., that be lingered or delayed. the fault was wholly and entirely with the operator at Pollocksville, and the incidental remark by the Court in regard to the slowness of messenger boys could not possibly be an expression of opinion “upon those facts respecting which the parties take issue or dispute, and upon whose existence depends the liability of the defendant.” State v. Angel, 29 N. C., 27; State v. Jones, 67 N. C., 285; State v. Debnam, 98 N. C., 712; State v. Jacobs, 106 N. C., 696, and cases there cited.
In Wharton v. Stilley, 88 N. C., 18, the Judge laid down some moral observations and the Court said: “We know of no law which prohibits a Judge, in bis charge to the jury, from pronouncing a dissertation upon such moral questions as may be suggested by the incidents of the trial, provided it be innocent and work no prejudice to either of the parties” ; and in State v. Gay, 94 N. C., 814, the Court says: “It can not be error to state a proposition to the jury which is universally admitted.”
*78What can be more undoubtedly admitted from common observation than the “proverbial slowness of a messenger boy,” and how could the expression of that truism be harmful to defendant when the conduct of no messenger boy was called in question. From plaintiff’s contention, the liability of defendant accrued solely from the neglect of the operator at Pollocksville', long prior to the delivery by him of the message to the messenger boy.
In the trial of Warren Hastings, to a criticism of a rhetorical ffourish in his opening speech, Sheridan replied that it was a novelty in legal proceedings “to take a bill of exceptions to a metaphor or enter a special pleading against a trope,” but the appellant seems to have repeated that precedent. It- is the function of this Court to. pass upon alleged errors of law of the trial Judges, but it has not been deemed part of our duties to pass upon matters which should be left to' their individual tastes. Some Judges' are terse, others are florid, some may refer incidentally to matters of common knowledge, and others restrict themselves to- narrower limits, but unless what is said is an expression of opinion “upon the facts in controversy,” the appellate Court has not felt that it was called upon to criticise the style or tenor of the charge, as reversible error.