The opinion
BROWN, J.,
dissenting: The facts upon which this action is based are as follows: Plaintiff, who resided with her mother at Roper, N. C., was stricken with appendicitis. Her physician, Dr. Speight, advised an operation, and on Monday, 19 July, at 4 p. m., in plaintiff’s behalf, wired Dr. Leigh at Norfolk, Ya., in regard to performing it.
Dr. Speight told his patient that he would see her next morning, and let her know what Dr. Leigh said. Dr. Speight did not visit his patient next morning, as promised, but called to see her at 2 p. m. that day, Tuesday, and informed her that he had not heard from Dr. Leigh, and that he had arranged for her to go to the Washington (N. 0.) Hospital to be treated by Dr. David Tayloe, an acknowledged expert in his profession.
Dr. Speight says that plaintiff could not have left her home and arrived at Norfolk until 4 p. mv Wednesday, the 21st, and that she arrived at Washington Hospital in safety at 11 A. m. that day, five hours earlier than she could have reached Norfolk. She would have been compelled to travel eighty-four miles to Norfolk, and only traveled forty¡ to Washington.
Plaintiff admits “that she came to as good hospital as she would have gone to if she had gone to Dr. Leigh’s, and got as good surgical attention.”
Dr. Tayloe kept the plaintiff until 28 July, on account of slow development of the disease, before operating. The operation was successful, and plaintiff returned home completely re-' covered.
*482 1. The defendant excepted because the court permitted testimony that the plaintiff traveled from Roper to Washington on a “mixed” freight and passenger train, and the record shows that this evidence was repeated to the jury in several different forms over the objection of the defendant.
It is true that his Honor, at the time when the objection was first made, stated to the jury that they were not to consider the riding on a freight train as a measure or cause of damage, and if the evidence had been terminated then and there under such instruction, it might be regarded as a harmless error.
But the record shows that this testimony was repeated by several witnesses after that admonition to the jury over the subsequent objection of the defendant, and strongly impressed upon them, and undoubtedly they had a right to suppose that such testimony as was allowed- by the court, after the admonition given, was intended to be considered. Such evidence was utterly erroneous and very harmful.
The record shows that the plaintiff was brought in the baggage car on a cot. According to the testimony of Dr. Tayloe, himself, she need not have come on the “mixed” train, but could have taken the regular passenger train, and arrived at Washington at 4 p. m., the same hour at which, she would have arrived at Norfolk.
Notwithstanding these facts proven by the plaintiff’s own witnesses, and after the admonition of the judge, the plaintiff was permitted to testify that this “mixed” train, which she voluntarily took, without any necessity, was jarring in its motion, had to go in on side-tracks and get freight cars, log cars, and switch cars in and out.
No one can read the evidence in this case without being impressed with the undeniable fact that this evidence must have had great effect upon the jury in estimating the damages. That such evidence is incompetent, harmful to the defendant, and could not possibly have been in the contemplation of the parties, is shown by overwhelming authority. Hancock v. Telegraph Co., 142 N. C., 163 ; McCoy v. R. R., 142 N. C., 383 .
I am of opinion that a new trial should be granted for this flagrant .and material error. Other incompetent evidence was *483 received by the court over the'objection of the defendant, on which it is not necessary now to comment.
2. I am of opinion that there is no evidence in this record upon which a' legitimate claim for damages for mental anguish suffered by the plaintiff because she did not hear from Dr. Leigh can be founded. It is admitted by the counsel for the plaintiff that the only period of time when the plaintiff could have suffered any mental anguish on such account covered only a very short time. She was told by Dr. Speight that he could not hear from Dr. Leigh until some time Tuesday morning, when he would come over and inform her of the result. He did not come until 2 p. m. on Tuesday, at-which time he informed her that he had not heard from Dr. Leigh, and had made arrangements to take her to Washington. She left for Washington the next morning, and arrived there at 11 a. m., and could not be operated upon until ’the 28th, on account of the condition of her appendix.
I fail to find in the testimony of the plaintiff herself anything whatever which tends to prove that from the time that she expected to hear from Dr. Leigh Tuesday morning until 2 p. m-., when Dr. Speight came, she could reasonably have suffered any mental anguish because she had not heard from Dr. Leigh.
During that time, according to her own testimony, she had grown very weak from the acute and sudden attack of her disease; she was greatly under the influence of drugs given to deaden this pain, which according to all the evidence was of such acute character as to render the plaintiff practically oblivious to her surroundings, and to the fact that she had not heard from the telegram sent to Norfolk.
Again, his Honor permitted, over the objection of the defendant, not only the plaintiff herself, but her physicians to describe to the jury her physical condition, her acute and agonizing suffering, for none of which could this defendant be held responsible, and all of which was well calculated to appeal to the sympathies of any jury and greatly and grossly aggravated the damages assessed.
Hpon the facts as set out in this record I am bound to conclude, with all deference to my brethren who differ with me, *484 that tbe plaintiff should be permitted to recover $1,000 for alleged mental anguish in not hearing from Dr. Leigh, when her body and mind were tortured by agonizing disease, which undoubtedly excluded every other thought, is a great miscarriage of justice which should not be permitted to take place in the courts of this State.
The majority of courts in this country, as well as Great Britain, repudiate this doctrine of “mental anguish” because of the inequalities it produces and the impossibility of establishing any uniform rule of damage, as well as on account of the frivolous character of many cases where the doctrine is applied.
I am of opinion that the facts of this case disclose no reasonable or just foundation upon which to base a recovery, and that it should be dismissed by the Court.