ARK.] ARK. GEN. UTILITIES CO. V. CULBREATH. 359 ARKANSAS GENERAL UTILITIES COMPAN . V. CULBREATH. Opinion delivered May 21, 1928.. NEGLIGENCR—DisTRUCTION.—in an action f6r p6iaonal injuriea sustained by falling into a post-riole dug in a Tiath by a lighting company, an instruction which 'expressly told the jury . that before they could find for plaintiff they Must find that plaintiff, at the time of injury, waa eXercising ordinary care for his own safety, held not errOneous as ignoring the defenae oi contributory negligence.
360 ARK; GEN. UTILITIES -CO. v. CULBREATH. [177 •2. ELECTRICITYNEGLIGENCE AS "SOLE" CAUSE OF INJURY.—In - an • action for personal injuries sustained by falling into a post-hole dug in the path by a lighting company, an instruction that plaintiff could not recover unless defendant's negligence was the sole cause of the injury was properly modified by striking ouf the "word "sole," since the law does not require that the negligence complained of shall be the sole cause of the injury. 3. ELECTRICITY L -INSTRUCTION AS TO NEGLIGENCE IN DIGGING POST-HOLE.—In an action for injuries sustained in falling in a post-hole dug in a path by a lighting company, it was not error to refuse to instruct_that the company was bound to use only ordinary care to keep the hole covered and guarded, since it disregarded any negligence in digging the hole in the path... 4. ELECTRICITY—NEGLIGENCE—MODIFICATION OF INSTRucrION.—In an action for injuries sustained by falling in a post-hole, dug in the path, by a lighting company, an instruction that, after defendant dug the hole, it was only bound to see that it was properly covered or guarded, was properly modified by substituting for the word "guarded" the words "or otherwise properly safeguarded." 5. TRIAL—INSTRUCTIONS AS . TO DAMAGES. In an action for injuries sustained lci r falling , into a post-hole dug in a path by a lighting company, where the court properly instructed the jury relative to the measare of damages, refusal to give a requested in'struc-tion which limited recovery to "such an amount .as you believe from the testimony will compensate him for the actual injury," etc., held not error. 6. DAMAGES—REASONABLENESS OF AWARD.—An award of $10,000 to an able-bodied man 51 years of age, in good health, earning about $1,500 a year, for broken ribs and severe injury to left kidney, incapacitating him for further labor, held not excessive. Appeal from Bradley Circuit Court; Turner Butler, Judge; affirmed. STATEMENT OF FACTS. This appeal is prosecuted from a judgment for damages for personal injuries to R. •. Culbreath, resulting from having fallen int6 a hole dug by appelldnt company for putting up an electric light pole on Railroad Avenue, in the town of Warren, Arkansas. Appellant, a public service corporation, maintaining a light Vlant in the town of Warren, Arkansas, was feconditi6ning its lines during the month of October, 1926, and replacing the old light poles with new ones.
ARK.] ARK. GEN. UTILITIES CO. CULBREATH. 361 Appellee. alleged.that, on or about October 30, 1926, while walking from his home to town, between- sunSet and dark, going in- a _westerly.. diredtion on Railroad AVenue; lie turned off at the usual and customary 'place- 'used by pedestrian's in getting from one side of this 'street to the other,' and, in so doing, stepped into a hole about eighteen -inches in diatheter' and about five feef feeP, directly :in the center .Of 'the path upon- which he waslwalking;-that he was throWn' violently against an electric light Pole 'Standing' adjacent to the hole into whieh he -had stepped, then against the conerete Walk, and received severe arid . serions - injuries. It was alleged that appellant had negligently "left the post-hole uncovered and unproteCted and . unSafe t8r pedestrian§ using the street,-and further, 'that the' conj.- pany was negligent in that the Tight on' the pole near the bottom of which _the hole was dug Vas' mit "of 'Order, and not burning at the time Of the injury. • Appellant denied. all the_ material allegations of .the complaint, and pleaded contributory hegligence of . :the appellee a.s a bar to any recovery. - It appears from . the record that appellee,. a farmer . and drayman, who lived in. the eastern edge of .town, on Saturday night, October 30, 192-6, his wife .being. in the hospital at Little Rock, -started to visit the home of his brother-in-law, ..to take supper there. . He. was accompanied by his brother, Gus Culbreath. While. they were • walking westward upon the . concrete sidewalk. along the south side of Railroad Avenue, at about 7 o'clock, he stepped off the sidewalk into the path in the street leading north from Railroad Avenue to the home of his brother-_ in-laW, and into an uncovered post-hole in the path or .WalkWay, and near . an electric . likht pole, Striking his breast and side Viblently against the 'po'st, andjalling . -back and • striking his baCk, over the 'kidneys, a o. ainSt the . concrete curb of the sidewalk: 'Appellant w0 . - Unable to_ get up -for . some little time, but finally 'did So, with tha : assistance of his brother, and walked . at6n.t . one-half
362 ARK. GEL UTILIPIES CO. v. CULBREATEI. [177 a block to his brother,in-law's, and, finding no one at home, called a passing auto and was driven to his own home, where he went to bed. He suffered great pain, mostly in the back, and especially from broken ribs when he coughed. He was treated by a local doctor until November 11, when a hemorrhage from the injured kidney developed, and he came to Little Rock for treatment. The X-ray pictures made showed he had sustained several broken ribs and a severe injury to the left kidney. He continued under the treatment of Dr. McGill, in Little Rock, from the middle of November until the trial, and was still under his treatment at the time of the trial in August, 1927. The hemorrhages from the kidney continued until after the trial, a severe one having been suffered on August 4. Dr. McGill testified that the impaired condition of the kidney was permanent, and that appellee would never be able to do manual labor again. Appellee was 51 years of age at the time of the injury, with a life expectancy of 20 years, and his earnings averaged $1,500 a year. 'Certain instructions given by the court at appel-lee's request are complained of as erroneous, as well as the court's refusal.to give certain instructions requested by appellant. The jury returned a verdict for $10,000, and from the judgment thereon this appeal is prosecuted. Wooldridge & Woolridge and Danaher & Danaher, for appellant. D. A. Bradham, Frank Pace and Tom W. Campbell, for appellee. KIRBY, (after stating the facts). It is first urgently insisted that the court erred in giving appellee's requested instruction No. 1, which, it is claimed, entirely ignores the alleged defense of contributory negligence, and concludes by telling the jury the verdict should be for the plaintiff. The appellant objected to the giving of the instruction, and requested the court to modify it,
ARK.] ARK. GEN. UTILITIES CO. v. CULBREATH. 363 which it refused to dO, by adding, "unless You' further find from the evidence . that the plaintiff hiniseli Was guilty of contributory negligenee which cansed 6r contributed to the injtry of whieh he coMplains." It is true this conrt has held an instrnctiOn shoUld-be cOMpleté in itself When it undertakes to tell the jUrY when the verdict should be rendered for the plaintiff, and that the trial court should not instruet the jury that it . must find for the plaintiff or defendant, as the ease may be, upOn a partial or incomplete stateMent of the law applicable to the material fads of the case,- and that an instruction is _inherently erroneous and therefore prejudicial which leaves out of consideration the plaintiff's contributory-negligence or assumption of risk, or leaves to the jury the determination of the defendant's conduct as the sole issue for the jury's verdict, coneluding with the phrase, "You will find fOr the plaintiff, or your verdict should be for the . plaintiff," because, under the evidence, the conduct of the' plaintiff .' as *ell aS that of the defendant is essential to a proper verdict. l'eniljle Cotton Oil Co. v. Skiwner, 176 Ark. 17, 2 S. W. (2d) 676. There is no question but that appellant did Object to the giving of this instruction and-ask the Medifidation. thereof, already set out, and that, if the objection was well taken, it would have constituted reversible error, but we do not find the instrnction Open to the objection urged, since it expressly told the . jury it Must find . "and that plaintiff at the time was in the eiereise of ordinnry care for his own safety," etc.,. befOre they could render a verdict for him. If the appellee was in the ekereise" of ordinary care for his own safety at the time the injury occurred,.he could not, of contse, haVe been guilty oT con.- tributory negligence, whieh only means the failUte to exercise sUch care in the circnmstnnees of the ease. - Neither dO we find that the POu'rt erred-in ModifYing the second instruction requested by aPPellant by striking out the word "sole" in the corineetion, , "and that such negligence of the defendant was the sole cause' of plain-1
364 ARK. GEN. UTILITIES -CO. v. CULBREATH. [177 tiff's injuries." . The instruction as given told the jury that the basis or ground of plaintiff's suit was negligence, which could not be presumed from the fact that plaintiff fell into the hole dug by the defendant on Railroad Avenue, and was thereby injured, "but such alleged negligence on , the part of the defendant must be shown by a preponderance of the evidence, and that such negli:- gence of . the defendant was the cause of plaintiff's injuries:" The law does not require that the negligence complained of shall be the sole "cause of the injury to entitle a 'recovery therefor by the injured party.. In Bennett v. Bell, 176 Ark. 690,3 S. W. (2d) 996, tbe court said: "It is well settled that negligence, in order to render a person-liable, 'need not be the sole cause of the injury, 'and that one is liable if his negligence concUrred *With an: inanimate cause producing it. The negligent act or omisiOn must be the Can -se-which prOduces the injury, but it need not be the sole cause, nor the last or nearest One." See alsO Helena Gas Co. -i r 2Roge'rs, 104 Ark. 0, 147 S. W. 473; Cahill v. --Biadford, 172 Ark. 69, 287 S. W. 595 ; Coleman v. Gulf Refining Co., 172 Ark. 428, 289 S. W. 2. No er . ror was committed in the refusal tngive appellant's requested instruction No. 9, telling the jury that, after it had dug the hole, it was only bound to the exercise of ordinary care_ to keep . it covered and guarded for the protection and safety of those who might be traveling along the said walk or highway, and th V at if the jury found, Vmn the maintenance of said hole, it exercised Vsuch care, it could not be held liable for the plaintiff's injury, since this Utterly disregarded any negligence of said company in the digging of the hole in the path or walkway across the traveled street. Then, too, the court told the jury, in appellant's requested instruction No: -1, and appellee's instructions 3, 10 and 11, - that the appellant .Was only bound to the exercise of ordinary care in the construction and maintenance of- its line and the making
ARK.1 ARK. ORN. tTILITIES : 00. V. OULBREATTI. 365 of holes. for the placing of new poles, and the protection of the public against danger of injury therefrom. The objection to the modification of instruction No. 10 by striking out the Word "guatded" in the connection. "maintained a reasonable inspection of said'hole to see that it was properly covered or guarded," and insetting the words " or otherwise properly safeguarded," could not have been prejudicial in any event, since it appears to have been more favorable to the position of the defendant as given than in the form in which it was presented, the jury being allowed to find that its duty was discharged if the- hole was covered, guarded, well lighted, or inclosed. 'It is not susceptible to the Construction urged by appellant; that the jury would have understood from the words of tbe amendment that appellant was bound to .make the place safe for the users of the highWay. The court ba y ing properly instructed the jury relative to the measure of damages in its instruction No. 3, • error was committed in refusing to give appellant's requested instruction No..12, which limited the recovery • of .appellee to "such an aniount as you believe from the testimony will compensate him for the actual injury, if any, sustained by him, as a result of falling into 'the hole," etc. The instruction given„ after properly telling the . jury what. elements _should be considered in awarding damages, expressly told . theni that if they _Should find, after careful consideration of the evidence, appellee w-as entitled to damages, "you should award . him such an amount of damages as will fully compensate ' him for the injury sustained hy him, if any," etc.. . . Neither do we think the amount of -damages excessive. Appellee was an able-bodied man,.51 years of age, in good health, and earning about $1,500 a year at the time of the injury, which the jury might have found totally incapacitated him from doing manual labor, and
366 r177 he had suffered much pain from the injury, which physicians thought would continue to be painful indefinitely. We find no prejudicial error in the record, and the judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.