The plaintiff- excepts because the court submitted, over his objection, the following issue: “Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer?”
There was no evidence which should have been submitted to the jury upon the issue of contributory negligence. In Hocutt v. Tel. Co., 147 N. C., 190, where the plaintiff delivered a message to the defendant addressed “Greensboro, N. C.,” Associate Justice Wallcer, in speaking of the duty of the plaintiff in such case, uses this language: “Mrs. Hoeutt was not bound to do more than she did when she caused a properly addressed message to be delivered to the defendant’s operator and tendered the charges for transmission. The duty then devolved upon the defendant to send and deliver the message to the addressee unless it had some legal excuse for not doing so, and none appears in this case.” Anything the plaintiff did further than that in this case was in trying to *497aid tbe defendant in the performance of its duty. From the conversation which took place between the agent and the plaintiff, as testified to by DeHart, the' agent knew that the plaintiff did not know the full address of Edwards.
The plaintiff was a white man, and yet the telegram was delivered to a negro, and not at 113 East Avenue, much less on East MeBee Avenue. The agent at Bryson City prevented the plaintiff sending a second message that same afternoon and also prevented him from sending a message with full street address by his brother the next morning when he phoned to Noland that the message had been delivered at 4:10 p. m. the day before. There was also evidence that John Edwards was at home in Greenville that afternoon; that he had lived in Greenville about two years working on buildings; that his address was filed at the postofiice; that he received his mail every day; that his parents lived in the same house with him; that his father was also well known in the town, and that if he had received the telegram he and his wife would have attended the funeral.
The court erred in refusing to permit the counsel to argue that the ruling in Cashion v. Tel. Co., 123 N. C., 267, applied to this case. Revival, 216, provides that in jury trials counsel may argue the law as well as the facts to the jury. This is entirely distinct from the instances in which the court has refused to permit counsel to read the facts in one ease as evidence in another. There were other errors, which we need not discuss, as they may not occur on another trial.
The defendant insists that we should disregard the error in submitting the issue of contributory negligence and affirm the verdict of $50. But to do so would ignore the fact that the finding on this issue, even if there was no other error, militated to reduce the amount of the damages.
"We cannot he inadvertent to the fact, however, that the appellant in printing the transcript did not comply with Rule 29, which requires that the transcript on appeal shall be printed “in the same type and style and pages of the same size as the Reports of this Court.” This requirement is because all printed briefs and records are bound for preservation in volumes of uniform size, and a failure to observe this rule is inconvenient. By reason of this failure to observe the rule, the appellant will not be allowed to tax the cost of the transcript as a part of his costs in this Court. The Rules of the Court are only such as are necessary, and they must be observed.
For the errors stated there must be a
New trial.