The opinion in a former appeal of this case is reported in 94 Ark. 350 (Western Union Tel. Co. v. Webb). After the mandate of this court was filed in the-circuit court, the complaint was amended, and the case was again tried before a *90jury, which returned a verdict for $625 in favor of the plaintiff. Sydney B. We'bb. The defendant, Western Union Telegraph Company, by this appeal seeks to reverse the judgment rendered upon the verdict.
Reference is made to the opinion in the former appeal for a statement of the case. Additional facts will be stated or referred to in this opinion.
It is strongly urged -by counsel for appellant that the verdict is not warranted by the evidence. They insist that the company owed no duty to deliver the message outside of its free delivery limits at Pioneer, and that because .the addressee of the telegram resided outside of those limits and made no inquiry for the message at Pioneer, the negligence of appellant in transmitting and .delivering the message, if established, was not the proximate cause of the injury. It is true that this is the general rule, as announced in King v. Western Union Telegraph Co., 89 Ark. 402, but a particular state of facts may make an exception to the rule. This is recognized in the case of Arkansas & La. Ry. Co. v. Stroude, 82 Ark. 17. In that case the court said: “It was a question for the jury, under the evidence, which we have fully set forth in the statement, as to whether or not appellant exercised ordinary care in delivering the message to appellee. The court properly instructed the jury that the fact that appellee lived beyond the limits of the town at the time the message was received by appellant at Nashville could not avail appellant as a defense, provided appellant by the exercise of ordinary diligence could have delivered the message to the sendee within its delivery limits, i. e., the corporate limits of the town of Nashville.”
The operator at Pioneer testified that he delivered the message in question to B. K. Webb, a cousin of Sidney B. and Jesse Webb, about the middle of the forenoon of December 5, 1908; but the jury might have found against appellant on this issue; for it was shown by the testimony of appellee that at about 12 o’clock noon of that day the message was at the relay station of Eudora, and had not yet been transmitted to Pioneer. The operator at Pioneer admitted that he received the message from Eudora, a relay station. Then at the funeral in the afternoon B. K. Webb was present, and there was general comment among those present about the nonarrival of appellee, and B. K. Webb *91said nothing about having received the message in question. Appellee met his brother coming from the funeral, and after they all reached Floyd, just after dark, the message was delivered to them by one Redmond. From these facts and circumstances the jury might have found that the operator was mistaken when he said he delivered the message to B. K. Webb, about the middle of that forenoon. Now, it will be noted that rules prescribing limits for the delivery of telegrams free of extra charge are made by the telegraph company, and are made for its benefit. If it sees fit, it may waive this rule, or abrogate or change it in whole or in part. Powers, the operator of the company at Pioneer, said that it was a small place of about 500 inhabitants. Floyd was about five miles distant, and had no telegraph station. The testimony of appellee showed that Floyd was only three or four miles from Pioneer; and was off the railroad. We quote from Powers’s testimony, as brought out by appellant, as follows: "Q. Under the rules and regulations of that office were you required to deliver messages to any one living in Floyd when they were sent to Pioneer? A. No, sir. Q. What was the custom with regard to that? A'. It was the custom to hand them over to residents of Floyd that I usually saw or else to deliver them to Ross Brothers’ store, at which point most of the residents of Floyd called when they were in Pioneer. Q. This was the request of the people of Floyd? A. Yes, sir.”
Appellee says Powers was slightly acquainted with him. Jesse Webb testified that he had lived at Floyd all his life, and was well acquainted with Powers. Pie further stated that he was well known by both the old residents of Pioneer and Floyd. As above stated, appellee stated that the message was delivered at Floyd about dark after the burial, by one Redmond. The jury by its verdict found that appellant negligently delayed the message at its relay station, Eudora. It can not be said as a matter of law that, had this negligence not occurred, the addressee of the telegram would not have received it in time to have delayed the burial until the arrival of appellee because he did not send to Pioneer for the message. It was a question for the jury to say, under the facts and circumstances stated above, if appellant’s operator at Pioneer had observed the usual custom in regard to messages received at Pioneer' for residents of Floyd, *92whether or not Jesse Webb would have received the message in time to have delayed the burial. That is to sa3q the juiy might have found, under the evidence detailed above, that if the operator had made inquiry, had he received the message in the morning of the 5th inst, he would have found at Pioneer some resident of Floyd who would have carried the message to Jesse Webb at Floyd in time for-him to have postponed the burial until the arrival of his brother. Louisiana & N. W. Rd. Co. v. Reeves, 95 Ark. 214. See also Rosser v. Western Union Tel. Co., 130 N. C. 251; Western Union Tel. Co. v. Robinson (Tenn.), 34 L. R. A. 431; Western Union Tel. Co. v. Cain (Tex. Civ. App) 40 S. W. 624. It will be noted that, while the burial wás not delayed until the train on which appellee would have come arrived, the train was several hours late, and Jesse Webb did not expect appellee because he had not received a message from him, as he expected to do. He testified that he waited for the message until just in time to bury their mother before dark. He said that her body was embalmed, and was buried in a metal casket; that he certainly would have waited for his brother before burying their mother, had he received the message in question. .
2. Counsel, for appellant next urge us to reverse the judgment on account of certain instructions given. We do not deem it necessary to set out the instructions. It is sufficient to say that the objections came-squarely within the rule laid down in St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255, where the court held (quoting from syllabus): “The giving of an instruction to the effect that it is the duty of a railroad company to keep its station platform in safe condition for the use of passengers is not cause for reversal where no specific objection was taken to the court’s failure to limit or explain the meaning of the term safe.”
3. Counsel for appellant also ask that the judgment be reversed because of certain remarks made by counsel for appellee in his address to the jury. Upon objection being made to the remarks, the court withdrew them from the consideration of the jury, and we think his action in that'regard cured any prejudice that might have resulted to appellant.
4. We now come to the question of the verdict being excessive. It is shown that great affection existed between appel*93lee and his mother, and it is certain that as soon as he learned of her death he made even' effort to be present and assist in burying her. It was his privilege, if not his duty, to bestow this last tribute of love and respect. He was denied this right, as shown by the verdict, on account of the negligence of appellant. While it is impossible to tell how great his suffering was on that .account, yet it was the duty of the jury to measure it in dollars and cents,- and we can not under the evidence say that it was overestimated.
The judgment will be affirmed.
Kirby, J., dissents.