Western Union Telegraph Co. v. Davis , 95 Ga. 522 ( 1895 )

Judgment in each case reversed,.

For ’defendant the testimony was to the following effect: The message was received by Joiner, its operator at Fort Yalley, about two o’clock on the 25th, and was sent by him to Perry between nine and ten o’clock on the 26th. The reason he did not send it until the 26th was because the wire was down and he could not. The trouble with the wire was in the railroad office in Fort Yalley; there was no trouble.in defendant’s office there. The wire would not work at all after this message ivas received in Fort. Yalley on the 25th, and when Joiner reached his office at eight o’clock the morning of the 26th, he tried the wire and it-was still out of fix. When he found the wire was working he sent the message. He went to the railroad office to see if he could find out what the trouble was. Rogers was in the railroad office, and they tested the wire and saw it was in that office. It would not work either way, east or west. Rogers said he would hunt for the trouble. Joiner did not remember whether he (Joiner) reported the trouble over the wire or not, and did not remember whether he notified the lineman to come the first day or not. He found the instrument would work, and sent the message in two or three minutes after. Defendant’s wire from Perry to Port Valley passes through the railroad office on its way to defendant’s office in Port Valley. When Joiner on the 25th asked Rogers about the wire, Rogers went to his switch-board, tested it and found the trouble was local, but did not know what was the matter, did not know what to do; was not a line-repairer; did not know anything about the business of the line-repairer, and did not know where to go. On the 26th, between nine and ten o’clock, the liue-i’epairer was in Port Valley in Rogers’ office, at work on the wire. Rogers supposed it might have been possible for him or the other operator to have found the trouble in the office if they had known where to look, or had known anything about that department, but they knew nothing about it; it was not their duty to know anything about it; there is a man hired and trained for that business. The line repairer lives at Smithville, and has seventy-five or eighty miles of line. He visits Rogers’ office regularly on an average of twice a month, as often as is necessary. Rogers testified that the line repairer was in his office between nine and ten o’clock on the 26th; and afterward testified that he did not know when the line repairer came that day; was not thoroughly positive he was there, but thought he was there; did not know who notified the repairer, but he (Rogers) did not; the letter from Moore was tlie first notice he had of the trouble; the train from Perry got to Port Valley about three o’clock, and he got the letter, and then Joiner came, may be at three or four o’clock. If Rogers had devoted an hour and a half hunting for the trouble, it is possible he might have found it; it was no great trouble about fixing the wire after it was found. An expert operator might have fixed the wires if he could have found where the trouble was, but Rogers did not know where to look. There are four instruments in his office. He did not think it would have been possible to connect one of these instruments with the Perry wire, because the wire goes through a relay before it touches the switch-board, and the relay was the one that was broken. Rogers knows nothing about this, as he knows nothing about this department. He further testified: “We could take an instrument from one wire and put it to another, if it was in good repair. I could take another instrument and connect with the Perry wire and work the Perry wire, but I did not have another instrument but what does forty times as much work as the Perry wire, and I could not afford to swap instruments. I keep no extra instrument.”

In the Duncan case the circumstances of the delay in forwarding the message were the same as in the Davis case; but the following appears from the testimony: The message was delivered at the Port Valley office for transmission to Perry, at 3:30 o’clock on July 25th. Joiner had found out at two o’clock that his line to Perry would not work. During the afternoon he went to the railroad office, and with Rogers (who had received Moore’s note that the wire would not work) tested the Perry wire, found that the trouble was in the railroad office, and that the instrument would not work. This instrument could easily have-been detached and one put in its place that was all right. Joiner had nine instruments in his office. Neither he nor Rogers made any examination to find out what the trouble was; that was the lineman’s business, not theirs; neither of them notified the lineman or the authorities that the instrument was out of order; the lineman, if notified, could not have reached there until the next day at 10:20 o’clock. Rogers did not know what the trouble was nor where to look for it. At 8 o’clock that day the wire was still down; at 9:15 o’clock Joiner found that it had come up, and immediately sent the message to Perry. It was sent out by Smith with the message to Mrs. Davis, and was delivered to Bunn, the sendee, at 10.45 o’clock, July 26th. The other facts in evidence are shown by the foregoing statement of the Davis case.

Gustin, Guerry & Hall, for plaintiff in error. W. C. Davis, J. P. Duncan and Hardeman, Davis & Turner, contra.