dissent">OoNNOR, J.,

dissenting. I concur in the dissent of Mr. Justice Browñ. I prefer to rest my dissent upon the last *93ground assigned in his opinion. It is conceded that there was reversible error in the admission of testimony in regard to Mrs. Dayvis’s condition, etc., while in Weldon, which entitles the defendant to a new trial, but for the instruction of His Honor. I do not think that the incompetent testimony, which was prejudicial to the defendant, was withdrawn. I concede that if incompetent testimony is withdrawn, the error in its admission is cured, just as if competent testimony is excluded if its admission could in no point of view have affected the verdict, the error is harmless. State v. White, 138 N. C., 104. With all deference, I do not think that His Honor withdrew or intended to withdraw the objectionable testimony. He expressly instructs the jury that they are limited to a consideration of the sufferings and mental anxiety of the husband “under these circumstances,” concluding with the words “and therefore my instructions limit you to such recovery, as the husband should recover and not as to the wife.” I do not think the testimony was competent for any purpose. It was predjudicial on the issue directed to the amount of damages to be awarded.

The defendant company was not responsible for the failure of Mrs. Dayvis to reach Washington on the 26th day of June or of her remaining in Weldon. The misdirection of some person connected with the railroad was the cause of her misfortune. The plaintiff’s state of mind was caused by^ his failure to meet his wife on the cars at Pactolus. The breach of duty by the defendant did not cause this anxiety. The purpose of the wife in sending the telegram was to relieve this state of mind on the part of the husband. By reason of the failure to deliver the telegram, the state of mind continued — the mental anxiety was not relieved. A strikes B a blow causing pain. C, a physician, is called in and undertakes to relieve,the pain. He negligently fails to perform his contract — he is liable in damages, not for the origin of pain, but for the nesdisent failure to relieve it. I concur with xhe *94opinion of Mr. Justice Hoke, that tbe principle laid down in Rowell's and Akard's case and approved in Sparkman’s case, is not sound. I am unable to see why a breach of assumed duty to perform an act, tbe purpose of wbicb is to relieve mental anguish, does not confer a right of action upon the same principle that a similar breach of duty causes mental anguish. I wish to emphasize the necessity on the part of judges to use extreme caution in defining to j'uries the range within which they are permitted to move in assessing damages in this class of eases. In all cases, the original or primal cause of the suffering must be distinguished from the suffering caused by the breach of duty by the defendant. How far, in practice, it is possible for juries to do so must cause anxious consideration to courts. The entire subject is so fraught with obscurity and difficulty that one may well hesitate to enter upon its consideration. I note as an indication of the progress being made that mental anxiety is substituted for mental anguish. This case, like many others, shows gross and inexcusable negligence for which the law should give both redress and impose punishment.

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