Helena Gas Co. v. Rogers , 98 Ark. 413 ( 1911 )

Kirby, J.,

(after stating the facts). I. If is contended that said -instruction No. 4 given to the jury was not a correct statement of the law, in that it made the appellant an insurer of the safety of persons using the streets and sidewalks of the city near the excavation by requiring said company “to keep and maintain it in a proper and safe condition” until it was restored to the condition existing prior to its having been made. The -appellant had the right to make the excavation for the post necessary to be used in the stringing of its wires and distributing the electricity to light the city at the place designated therefor, and was only bound to the exercise of ordinary care in guarding same, to protect persons using the streets and sidewalks from harm and damage on account of it. St. Louis S. W. Ry. Co. v. Aven, 61 Ark. 131, 32 S. W. 500; Strange v. Bodcaw Lumber Co., 79 Ark. 490; Pugh v. Texarkana Light & Traction Co., 86 Ark. 36.

If the words, “to use ordinary care,” had been inserted in the second sentence of -said instruction, after the word, “excavation,” making it read, “It is the duty of one making such excavation to use ordinary care to keep and maintain it in a proper and safe condition from the time it is made, etc,” it would have given the jury the correct rule of the care required by law of appellant for the protection of the public in the use of the streets and sidewalks. As to whether the digging of the hole and covering it with the boards as indicated, when finished, and lqgving it there for five days without any further care and attention to keep it covered or otherwise guarded, was the exercise of ordinary care to which -it was bound was the question for the jury which should have been submitted upon proper instructions. Instruction No. 2 asked by appellant should have been given.

II. Sorrow caused by the death and the loss of companionship of a husband and happiness found in his love and kind and affectionate treatment of his wife are not elements of damage under our -statute, and testimony relating thereto should not have been introduced on the trial.

For the errors indicated the judgment is reversed, and the cause remanded for a new trial.