Appellant presents the question in two views: One is that as a matter of law the company did not owe the protection to appellee to keep the pit covered, and the other is that the jury should decide whether that particular duty of keeping the pit covered was in fact a duty owing appellee. The appellee testified that:
"My duties require me to go around on the inside of the roundhouse and outside, around front and back. * * * In the discharge of my duties I kept moving around through the roundhouse, first one place and then another."
The drop pit, it appears, was in the roundhouse, and, according to the witness Bell, "there is only one drop pit in the roundhouse." And there appears no evidence that appellee's duty did not require him to be upon that portion of the premises of the roundhouse where the pit was situated. If, as appears, the appellee's duties as watchman required him to patrol and watch the premises of the roundhouse "inside of the roundhouse and outside around front and back," and there was, as appears, a pit within the roundhouse premises, then it may not be said that appellant did not owe the appellee the duty to keep the pit covered, or inform or warn him of its being there in that uncovered condition.
The court, in the eighth paragraph of the charge, in effect instructed the jury that in order to find for the plaintiff the company must have been negligent in leaving the pit open and uncovered, and such negligence must have resulted in injury to plaintiff. The court further instructed the jury that:
"The evidence in this case shows that the plaintiff was in the employ of the defendant and received some injuries by falling into an open pit, but this is not sufficient alone to justify you in finding a verdict in his favor. But if you find a verdict for him you must find that the railroad company was negligent, and that it neglected some duty it owed to the said Duncan. If you believe from the evidence that the defendant did not owe to Duncan the duty of keeping the pit, while open, guarded or protected by lights or other warning signals, you will find for the defendant."
It is concluded that in the record the points made should not be sustained for reversal of the case, and that the assignments of error numbered 1, 2, 3, 5, 6, 8, and 11 should be overruled.
The question of the plaintiff's negligence in failing to use the flash light furnished him was sufficiently submitted to the jury in the court's charge, and assignments of error Nos. 4 and 7 are overruled.
As to whether the amount of the verdict is excessive depends on the extent of the injury and pain and suffering and lost time sustained by the appellee, and the award made by the jury is not without any evidence to warrant it. The assignments are overruled.
Appellee's cross-assignment of error is overruled. The question of whether or not an ordinarily prudent person would go into *Page 1179 a dark place without using a search light in the hands at the time was a question for the jury, as submitted by the court.
The judgment is affirmed.