* Application for writ of error pending in Supreme Court. The verdict of the jury involves the findings of fact that the appellant company was negligent in maintaining the rod at the height it was, as pleaded; that such negligence proximately caused the injury to appellee; and that appellee was not guilty of contributory negligence. There is evidence to support these findings, and they are sustained and here adopted.
The evidence is conflicting as to the extent of the injuries suffered by appellee; and, as a consequence, the verdict of the jury as to amount of damages having evidence to support it, is sustained.
It is believed that the question of whether or not the appellee was guilty of contributory negligence in striking against the operating rod was for the determination of the jury upon consideration of all the circumstances, and their decision in that respect should be sustained. Lee v. Railway Co., 89 Tex. 588, 36 S.W. 63. Therefore assignments of error Nos. 1 and 2 are overruled.
The court did not err, we think, in refusing the special charge made the basis of the third assignment of error.
The overruling by the court of an application for continuance is made the basis of the fourth assignment of error. An application for continuance for the term was made on the regular call of the case on May 31, 1915, and was overruled, but the trial was postponed by the court to June 14, 1915. On June 14th the defendant renewed his application for continuance, and the court overruled it. This application to continue was made to correct depositions given by a witness. The interrogatory propounded to the witness was, "Did you notice any place on his face, forehead, or head where he had been hit by the rod; if so, where was it?" The answer was, "I noticed a little splotch on his forehead." The appellant contended that the witness failed in his answer to locate definitely the injured spot on the appellee's forehead. It is believed that no injury *Page 251 resulted to appellant in overruling the application, and the assignment of error is overruled.
By the fifth assignment of error complaint is made of the ruling of the court respecting the admission of evidence over the objection of appellant. The appellee proved by the witnesses Dainwood and Morgan that since the injury the company has raised the height of the operating rod one foot. It is ordinarily the rule that evidence of repairs after the accident is not admissible to prove antecedent negligence. But appellee says it was offered here and became proper on the issue made in appellant's answer, wherein it was pleaded:
"That in order that defendant's said telegraph operator could work the said signals from his desk within the said office, it was necessary that the said iron rod should be placed at about the height it was placed above the platform, and that so placing the said rod for the purpose of operating the said signals was a proper and reasonable device."
In this view the evidence would not be incompetent for the purposes for which it was offered of showing that to raise the height would not interfere with operation of the rod. Armour Co. v. Morgan,151 S.W. 861.
We have considered the remaining assignments of error, and have reached the conclusion that they do not warrant reversing the judgment; and therefore each of the assignments of error is overruled. Affirmed.