Macfarlane, J.
-This is an action by plaintiff, husband.of Fanny C. Davenport, to recover damages from defendant for loss of the services of his wife, and expenses of nursing and treating her on account of personal injuries resulting from the alleged negligence of [475]*475the defendant in not keeping its streets in proper condition. The charge in the petition is that defendant maintained a sidewalk on the west side of Fourth street in said city, and, where that street intersected Washington street, it had undertaken to maintain a crossing over Washington street; that on the margin of Washington street, between the end of the sidewalk and the beginning of the crossing a space had been left open for the passage of the surface water, and as a crossing of this waterway large stepping stones had been planted; that the crossing of this waterway was negligently permitted to become ‘ ‘greatly out of repair, so that between the southern terminus of said crossing-on Washington street, as the same was laid on the surface thereof and the nearest stepping stone in said waterway there was an opening about twenty-six inches in width and twenty inches deep, with the sides thereof precipitous, with no apron or covering over the same, without protection and without any light or signal to indicate danger, so that the same was on, and had been for a long time prior to, said tenth day of November, 1885, not reasonably safe for ordinary travel, of which said condition of said crossing defendant had notice.”
The petition further charged that on the tenth of November, 1885, the wife of plaintiff came to the city of Hannibal for the purpose of visiting her married daughter, then living on the westerly side of said Fourth street, and south of said Washington street; that after dark on the evening of said tenth day of November, 1885, she, on her way to her said daughter’s, started to cross said Washington street at the-crossing aforesaid, going south, and was wholly unaware of the said condition of said crossing, presuming that the same was on a continuous level, there being no light or signal to indicate danger, when she unexpectedly stepped down and into said opening, and was violently thrown to the ground, from which she received serious injuries [476]*476making necessary the amputation of one of her legs, after long suffering and disability.
“ That by means of the premises the said Fanny C. Davenport for a long space of time, to-wit, ever since the receiving of said injuries, has been unable to perform her ordinary duties as the wife of said plaintiff; that plaintiff has been deprived, not only of her services and society, but was put to great expense, and did pay out a large sum, to-wit, the sum of $600, in and about the nursing and .taking care of his said wife, and for medical attendance on her, and has suffered great distress of body and mind, besides being hindered and .damaged in his business on account of the precarious condition of his said wife, produced by said injuries.”
The answer was a general denial and a special plea of a former trial of the issues as to the liability of the city for injuries to Mrs. Davenport in a suit by her against the defendant, in which a judgment was rendered for defendant. No point is made on this answer, and no further consideration will be given to it.
No question is made as to the sufficiency of the evidence to support the verdict. We have read the evidence carefully, and think it tends to prove each issue tendered by the petition, and we will not state the evidence in detail.
I. Plaintiff was allowed, over defendant’s objection, to introduce and examine as a witness the physician who attended his wife in a professional “character while suffering from her injuries. He was allowed to testify concerning information acquired from his patient while under his treatment. The written waiver by the patient of her privilege and her consent that the witness might give such testimony was first proved. The action of the court in permitting this witness to testify is assigned as error.
The statute, provides that a physician shall be incompetent to testify “concerning any information which he may have acquired from any patient while [477]*477attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician.” Sec. 8925. This statute, as frequently construed by this court, merely gives the patient the privilege of suppressing information thus acquired and was not intended to operate in its absolute suppression. Hence, it is held that the patient may waive the privilege and permit the physician to disclose such information. Groll v. Tower, 85 Mo. 249; Squires v. Chillicothe, 89 Mo. 226; Blair v. Railroad, 89 Mo. 334; Carrington v. St. Louis, 89 Mo. 208.
The case of Blair v. Railroad, supra, was also an action by the husband for loss of the services and society of the wife, by reason of injuries she had received through the negligence of the defendant. It was there held that the wife could waive the protection of the statute. In that case it wms said the “right of waiving a privilege must be as broad as the privilege itself.” There was no error in permitting the witness to testify.
II. Complaint is made that the court refused to give instruction 4, asked by defendant. That instruction, in effect, told the jury that if the damage to plaintiff’s wife was caused by a failure on the part of defendant to maintain a proper light in the vicinity of the point at which the defect was permitted to exist; and that defendant had previously kept and maintained such light, then unless defendant had actual notice of the absence of such light, at the time'plaintiff’s wife fell, “in time to have enabled it in the exercise of reasonable diligence and attention to have supplied the same before the said Mrs. Davenport fell, or that on the evening in question the absence, if any, of such light had existed for such a period of time as to impart such notice to defendant, the jury will find for the defendant.”
We do not think the principle, that a city is entitled to notice of a defect in a street, and a [478]*478reasonable time in which to make repairs before it can be held for damages resulting from such defects, applies to an omission of duty of the character here shown. The negligence, in failing to maintain a light, consisted in a failure to discharge a known duty, and not in a failure to know that a duty was required. Defendant knew that when the darkness came the light was needed. The neglect of defendant’s agent to light the lamp was the neglect of defendant itself. The city was not entitled to notice that its agent' had neglected his duty. Russell v. Columbia, 74 Mo. 480.
III. It is insisted that the court, by its instruction' given on its own motion, submitted to the jury the question of law as to whether the plaintiff had a cause of action. This is the instruction complained of: “The court, of its own motion on plaintiff’s behalf, instructs the jury that, although aggravation of Fanny C. Davenport’s alleged injuries, if any, by the negligence, if any, of said Fanny C.
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Macfarlane, J.
-This is an action by plaintiff, husband.of Fanny C. Davenport, to recover damages from defendant for loss of the services of his wife, and expenses of nursing and treating her on account of personal injuries resulting from the alleged negligence of [475]*475the defendant in not keeping its streets in proper condition. The charge in the petition is that defendant maintained a sidewalk on the west side of Fourth street in said city, and, where that street intersected Washington street, it had undertaken to maintain a crossing over Washington street; that on the margin of Washington street, between the end of the sidewalk and the beginning of the crossing a space had been left open for the passage of the surface water, and as a crossing of this waterway large stepping stones had been planted; that the crossing of this waterway was negligently permitted to become ‘ ‘greatly out of repair, so that between the southern terminus of said crossing-on Washington street, as the same was laid on the surface thereof and the nearest stepping stone in said waterway there was an opening about twenty-six inches in width and twenty inches deep, with the sides thereof precipitous, with no apron or covering over the same, without protection and without any light or signal to indicate danger, so that the same was on, and had been for a long time prior to, said tenth day of November, 1885, not reasonably safe for ordinary travel, of which said condition of said crossing defendant had notice.”
The petition further charged that on the tenth of November, 1885, the wife of plaintiff came to the city of Hannibal for the purpose of visiting her married daughter, then living on the westerly side of said Fourth street, and south of said Washington street; that after dark on the evening of said tenth day of November, 1885, she, on her way to her said daughter’s, started to cross said Washington street at the-crossing aforesaid, going south, and was wholly unaware of the said condition of said crossing, presuming that the same was on a continuous level, there being no light or signal to indicate danger, when she unexpectedly stepped down and into said opening, and was violently thrown to the ground, from which she received serious injuries [476]*476making necessary the amputation of one of her legs, after long suffering and disability.
“ That by means of the premises the said Fanny C. Davenport for a long space of time, to-wit, ever since the receiving of said injuries, has been unable to perform her ordinary duties as the wife of said plaintiff; that plaintiff has been deprived, not only of her services and society, but was put to great expense, and did pay out a large sum, to-wit, the sum of $600, in and about the nursing and .taking care of his said wife, and for medical attendance on her, and has suffered great distress of body and mind, besides being hindered and .damaged in his business on account of the precarious condition of his said wife, produced by said injuries.”
The answer was a general denial and a special plea of a former trial of the issues as to the liability of the city for injuries to Mrs. Davenport in a suit by her against the defendant, in which a judgment was rendered for defendant. No point is made on this answer, and no further consideration will be given to it.
No question is made as to the sufficiency of the evidence to support the verdict. We have read the evidence carefully, and think it tends to prove each issue tendered by the petition, and we will not state the evidence in detail.
I. Plaintiff was allowed, over defendant’s objection, to introduce and examine as a witness the physician who attended his wife in a professional “character while suffering from her injuries. He was allowed to testify concerning information acquired from his patient while under his treatment. The written waiver by the patient of her privilege and her consent that the witness might give such testimony was first proved. The action of the court in permitting this witness to testify is assigned as error.
The statute, provides that a physician shall be incompetent to testify “concerning any information which he may have acquired from any patient while [477]*477attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician.” Sec. 8925. This statute, as frequently construed by this court, merely gives the patient the privilege of suppressing information thus acquired and was not intended to operate in its absolute suppression. Hence, it is held that the patient may waive the privilege and permit the physician to disclose such information. Groll v. Tower, 85 Mo. 249; Squires v. Chillicothe, 89 Mo. 226; Blair v. Railroad, 89 Mo. 334; Carrington v. St. Louis, 89 Mo. 208.
The case of Blair v. Railroad, supra, was also an action by the husband for loss of the services and society of the wife, by reason of injuries she had received through the negligence of the defendant. It was there held that the wife could waive the protection of the statute. In that case it wms said the “right of waiving a privilege must be as broad as the privilege itself.” There was no error in permitting the witness to testify.
II. Complaint is made that the court refused to give instruction 4, asked by defendant. That instruction, in effect, told the jury that if the damage to plaintiff’s wife was caused by a failure on the part of defendant to maintain a proper light in the vicinity of the point at which the defect was permitted to exist; and that defendant had previously kept and maintained such light, then unless defendant had actual notice of the absence of such light, at the time'plaintiff’s wife fell, “in time to have enabled it in the exercise of reasonable diligence and attention to have supplied the same before the said Mrs. Davenport fell, or that on the evening in question the absence, if any, of such light had existed for such a period of time as to impart such notice to defendant, the jury will find for the defendant.”
We do not think the principle, that a city is entitled to notice of a defect in a street, and a [478]*478reasonable time in which to make repairs before it can be held for damages resulting from such defects, applies to an omission of duty of the character here shown. The negligence, in failing to maintain a light, consisted in a failure to discharge a known duty, and not in a failure to know that a duty was required. Defendant knew that when the darkness came the light was needed. The neglect of defendant’s agent to light the lamp was the neglect of defendant itself. The city was not entitled to notice that its agent' had neglected his duty. Russell v. Columbia, 74 Mo. 480.
III. It is insisted that the court, by its instruction' given on its own motion, submitted to the jury the question of law as to whether the plaintiff had a cause of action. This is the instruction complained of: “The court, of its own motion on plaintiff’s behalf, instructs the jury that, although aggravation of Fanny C. Davenport’s alleged injuries, if any, by the negligence, if any, of said Fanny C. Davenport, or of her professional attendants, cannot be allowed to increase the estimate of plaintiff’s damage's, if any, yet, if the jury find that, at the time the alleged accident occurred, the plaintiff, 'under the instructions herein, became vested with a cause of action against defendant therefor, no such subsequent aggravation, if any, of her said injuries can take away plaintiff’s cause of action or authorize a verdict against plaintiff.”
The other instructions given by the court fairly and fully set out the facts which it was necessary should have existed in order to make a cause of action in favor of plaintiff’s wife. Now for the court to say, that if, under the instructions given Mrs. Davenport “became vested with a cause of action” at the time of her injury, is not a submission to the jury of the legal question, whether she had a cause of action. The jury by the other instructions are clearly told what facts would constitute a cause of action, and by this instruction they [479]*479are told that, if such cause of action accrued in the first place, it was not defeated by any subsequent negligence of plaintiff’s wife or of her professional attendants.
IY. Objection is made to the first instruction given plaintiff, the part objected to being as follows : “If the jury find from the evidence that said crossing was not so reasonably safe for ordinary travel as aforesaid, at the time of the alleged injury, to-wit, on the night of the tenth day of November, 1885, by reason of an opening between the stones in said crossing erected for and used as stepping stones therein; and further find that the defendant had notice of such defect in such crossing or that the same had existed for a time prior to the time of said alleged injury, reasonably sufficient to have enabled the defendant to have ascertained the fact and remedied said defect, and further find that, on the night of said day last aforesaid, the said plaintiff’s wife, Fanny C. Davenport, while walking over said crossing, and while in the exercise of ordinary care and caution, fell into said opening, and was thereby injured, and that her said fall and injury were caused by said alleged defect in said crossing, then they must find for said plaintiff.”
The objection to this instruction is that, while it purports to cover the whole case, it is so framed as to exclude from the consideration of the jury the fact as to whether a street lamp was maintained in the vicinity of the accident at the time of its occurrence. We do not think the instruction open to the criticism. The proximate cause of the injury was the defective street, and not the absence of a light. Maintaining a light seventy-five feet away,, as had been done, would not have excused defendant for suffering the defect in the street to exist. If proper light had been there, it might have warned Mrs. Davenport of the danger and she might have avoided it. The presence or absence of a light only bore on the question of the care used by Mrs. Davenport. If she used due care and was still injured the defendant would [480]*480have been liable though the light had been burning. The instruction required the jury to find that Mrs. Davenport was in the “exercise of ordinary care and attention,” when injured, before they could find for the plaintiff. Loewer v. Sedalia, 77 Mo. 445. We think the whole case was very fairly submitted to the j ury under the instructions.
Y. Complaint is made thatthe verdict which was for $2,700 is so excessive as to indicate prejudice and passion on the part of the jury. The evidence shows that, as a result of the injury, the bones in one of Mrs. Davenport’s legs became diseased, and finally, after- two years of care and nursing and attention of physicians and surgeons, the limb was amputated. Plaintiff was required to pay large sums for doctors’ fees, for medicine and for nursing, besides being required himself to devote much of his own time to mirsing and caring for her, to the neglect of his private business. This continued for three years from the time of the injury. We cannot say, as a matter of law, that the damages allowed under the verdict were excessive. It was a question properly submitted to the jury. Judgment affirmed.
All concur.