Gibbs v. Poplar Bluff Light & Power Co.

• Decision Date: 07 February 1910
• Citation: 125 S.W. 840,142 Mo. App. 19
• Court: Missouri Court of Appeals
• Parties: GIBBS v. POPLAR BLUFF LIGHT & POWER CO.

125 S.W. 840

142 Mo. App. 19

GIBBS v. POPLAR BLUFF LIGHT & POWER CO.

Springfield Court of Appeals. Missouri.

February 7, 1910.

On Motion for Rehearing, February 28, 1910.

1. ELECTRICITY (§ 19) — DEFECTIVE APPLIANCES — ELECTRIC LIGHTS — INJURIES TO TRAVELERS — NELIGENCE.

In an action for injuries to plaintiff by being struck by a falling electric light reflector hung over a city street, evidence held to require submission of defendant's negligence to the jury.

2. ELECTRICITY (§ 19) — INJURY TO PERSONS ON STREET — NEGLIGENCE — PRESUMPTION — RES IPSA LOQUITUR.

Where plaintiff proved that an electric lamp was in a city street, and that the shade fell on him while he was in the street under the lamp, and there was no evidence as to the cause of the fall, it would be presumed that it fell by reason of some neglect or omission on the owner's part.

3. ELECTRICITY (§ 16) — PERSONAL INJURIES — NEGLIGENCE.

Evidence that defendant's lamp trimmer, knowing plaintiff's position under an electric street lamp and that the shade was loose, started to climb the pole, knowing that his act would increase the danger of the shade falling, and that after it had fallen and lodged, and was liable to fall again, he gave no warning to plaintiff, but continued to climb the pole, when the shade fell and injured plaintiff, was sufficient to sustain an allegation that defendant's servant negligently caused the shade to fall.

4. DAMAGES (§ 160) — INJURIES — MEDICAL EXPENSES — PLEADING AND PROOF.

Where plaintiff alleges that he has expended sums for medical treatment, he can recover only for such sums as he has paid, but if he alleges only that he has incurred liability for medical services he may prove the amount of such liability.

5. INFANTS (§ 50) — NECESSARIES — PHYSICIANS' SERVICES.

Physicians' services are necessaries for which an infant is liable.

6. INFANTS (§ 92) — ACTION FOR NECESSARIES — PLEADING.

Both at common law and under the Code the declaration in an action against an infant for necessaries is required to contain allegations as in an action for debt; plaintiff pleading the fact that the articles furnished were necessaries only in reply to the plea of infancy.

7. INFANTS (§ 72) — EMANCIPATION — RIGHT TO EARNINGS.

Where an infant's father was dead and he had not lived at home for two years, his mother having remarried, at the time he was injured he was entitled to recover, under proper proof, for loss of earnings.

8. ELECTRICITY (§ 19) — PERSONAL INJURIES — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Whether plaintiff, a boy of 18, was negligent in sitting in a city street under an electric light when he was injured by the fall of the reflector without any knowledge of its unsafe condition, was for the jury.

9. DAMAGES (§ 216) — PERSONAL INJURIES — FUTURE SUFFERING.

Plaintiff was struck in the face and injured by the fall of an electric light reflector. Physicians testified that the scar on his forehead and disfigurement were permanent, and plaintiff testified that the scar still pained him at the time of the trial, and often produced an itching sensation. Held to sustain an instruction authorizing an allowance of such damages as would compensate plaintiff for any pain of body or mind and for any permanent disfigurement which the evidence showed plaintiff had sustained or would sustain by reason of his injuries.

10. APPEAL AND ERROR (§ 1060) — HARMLESS ERROR — MISCONDUCT OF COUNSEL — ARGUMENT.

Where, in an action for injuries, plaintiff's right to recover was not doubtful, and there was nothing in the verdict to indicate that any portion of it was due to an improper statement by his counsel "that if the jury fixed the plaintiff's damages at too low a sum the court could not raise it," such statement was not prejudicial, though the court, in reply to defendant's objection, only said that the jury had the right to fix the verdict.

11. DAMAGES (§ 132) — PERSONAL INJURIES — EXCESSIVENESS.

Plaintiff was struck and injured by the fall of a metallic electric light reflector, which cut a two-inch gash in his forehead from the left brow to the right side. Plaintiff was 18 years of age, and the injury left a permanent disfigurement. Held, that a verdict allowing plaintiff $700 was not excessive.

12. TRIAL (§ 234) — INSTRUCTIONS — BURDEN OF PROOF.

An instruction that the burden of proof of contributory negligence rests on defendant — that is, the defendant must prove to the jury's satisfaction by a preponderance of the evidence that plaintiff did not exercise ordinary care for his own protection — was not objectionable as limiting the proof on such issue to that given by defendant and its witnesses alone.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Charles Gibbs, by his next friend, David W. Hill, against the Poplar Bluff Light & Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ernest A. Green, for appellant. David W. Hill, for respondent.

GRAY, J.

This is an action commenced in the circuit court of Butler county to recover damages for personal injuries alleged to have been sustained by plaintiff by reason of the alleged negligence of the defendant in causing the reflector over one of its arc lights to fall and strike the plaintiff. On November 20, 1908, plaintiff, who was at said time, 18 years of age, was injured on Main street, in the city of Poplar Bluff, by reason of the fact that a metallic reflector dropped from an electric arc light, striking him on the forehead and cutting a gash about two inches in length across the forehead from the left brow to the right side. His father was dead and his mother had remarried, and the boy had been permitted to take care of himself and receive the fruits of his labor for about two years previous to the accident. The physicians testified that the disfigurement on the forehead was permanent. David W. Hill was appointed as the next friend, and this suit was instituted for $2,000 damages. The trial resulted in a verdict for the plaintiff in the sum of $700, and defendant has appealed.

The defendant at the time alleged was a corporation engaged in the operation of an electric light plant, and furnishing electric current in the city of Poplar Bluff for lighting purposes. The evidence shows that the arc light was maintained near the station of the St. Louis, Iron Mountain & Southern Railway Company, and was for the purpose of lighting the station, and it was between the tracks, but in one of the streets of the city. The plaintiff, at the time of the injury, and just prior thereto, was sitting on a speeder that was by the post over which the light was suspended. While he was sitting there, an employé of the defendant came and climbed the post. The plaintiff testified that as this employé commenced to climb the pole, he got up and started to move, and when he got something about six feet from the post, the reflector fell and struck him. There were other witnesses who corroborated the plaintiff's testimony. The most reliable testimony concerning the situation, and the cause of the reflector to fall, was given by the testimony of Luther West, an employé of the defendant, and we quote the following from his testimony: "I went to climb up the pole, and there was a shade — heavy — on the light; and the wind was blowing mighty hard; and the shade had shook loose; and when I was climbing the pole, of course, that shakes the pole more; and the shade fell and lodged between the two side bars; and when I was on about two steps — I had bolts in the pole to climb — and I made a step to get up to it and catch it, and before I could catch it, it fell out; and I hollered `look out,' and this young fellow looked up, and it hit him in the face when it came down." Upon the testimony of this witness, and under the allegations of the petition, the plaintiff was entitled to go to the jury. The allegation of negligence in the petition is as follows: "The defendant, its agents, servants, and employés, carelessly and negligently insecurely hung said reflector above said light, and by the carelessness and negligence of the defendant, its servants and employés, on or about the 29th day of November, 1908, the said reflector was caused to fall from the top of said pole and to strike on the face and...