The suit was commenced by a petition filed in August, 1910, and continued from term to term until the June term, 1912, of the court, when appellant's third application for a continuance was overruled. The action of the court in this respect, made the basis of the first assignment of error, will not be reviewed because not presented in a bill of exceptions as required by rule 70 for the government of county and district courts (142 S.W. xxii). Trabue v. Cook, 124 S.W. 456.
Appellee's witness, Reynolds, qualified and testified (by deposition) as an expert in the line of work appellee was engaged in at the time he was injured. One of the Interrogatories propounded to Reynolds was as follows: "Please explain fully and in detail what method you would follow in digging, or causing to be dug, a ditch or trench in earth that has been filled into a dump such as described, within 10 years, and where the culvert had to be removed as indicated by digging a ditch 12 to 14 feet deep?" The answer of the witness was as follows: "The method that I would have followed in removing this culvert would have been to have shored up the banks on each side of the ditch, and I would have braced it with timbers extending from bank to bank, and in my opinion that is the only way the work could have been safely done without danger to the men working in removing the culvert and for the safety of the traffic of the road." The interrogatory and the answer were objected to on the ground that it was immaterial what method the witness would have pursued in removing the culvert, and the last clause of the answer was further objected to on the ground that it was not responsive to the interrogatory. We think the objection should have been sustained and the answer excluded; but we do not think the judgment should be reversed because the court admitted the answer in evidence. The witness was familiar with the character of the earth which formed the embankment, and without objection had already testified as follows: "In my opinion, having knowledge of the condition of the soil at Rosewood, the only safe and proper way to have been pursued in digging this ditch and removing the old culvert and replacing it with a new culvert is that it would have been necessary to have shored up the banks with timber reaching from bank to bank." The effect of admitting the answer objected to merely was to permit the witness to say he would have done the work in the way he had described, without objection, as the "only safe and proper way" to do it. The error of the court in overruling the objections and admitting the testimony should, we think, be treated as harmless, and especially so in view of rule 62a adopted by the Supreme Court October 30, 1912, for the government of Courts of Civil Appeals (149 S.W. x).
Complaint is made of the action of the court in permitting the witness Thompson to testify as follows: "Mr. Blackburn, with the rest of us, was removing the old culvert so as to put in a new one at that place. Work was being done at the time under the direction of Tom Yancey, bridge foreman." The ground of the objection to the testimony was that "it stated in a general way that the work was under the direction of Yancey, without stating what instructions were given, and was a conclusion of the witness." We think the testimony was admissible, but, if we thought otherwise, would be of the opinion its admission was not a reason for reversing the judgment, because other witnesses for appellee, without objection on the part of appellant, testified to the same effect, and appellant itself proved the same fact by its witnesses Yancey and Simmons. Yancey testified, "I was directing that work, and was there on the side of the dump when the dirt fell in;" and Simmons testified, "Yancey had the work in charge." Railway Co. v. Norton,55 Tex. Civ. App. 478, 119 S.W. 706; Railway Co. v. Hughes, 73 S.W. 977; Railway Co. v. Huffman, 32 S.W. 30; Birkman v. Fahrenthold,52 Tex. Civ. App. 335, *Page 628 114 S.W. 431; McCormick v. Bank, 106 S.W. 750. What has been said with reference to the part set out above of the testimony of the witness Thompson applies as well to that part of his testimony covered by appellant's bill of exceptions No. 10. The testimony of the witness Loyless, not objected to, was substantially the same as that objected to given by the witness Thompson.
There is no merit in the contention presented by the second assignment that the court erred in permitting the witness Will McKnight, in reply to the question, "What kind of tools did the men have there to do the work with?" to say, "They had an axe and a crosscut saw that had a very short handle, some picks and strike mauls, and some shovels." If the testimony was immaterial, as is contended, the judgment should not for that reason alone be reversed.
It is insisted that the charge on "assumed risk," set out in the statement, was so materially erroneous as to require a reversal of the judgment. The objection first urged is that the act of 1905 mentioned in the charge, if applicable to the facts of this case, is, so far as it is applicable thereto, void, because inhibited by both the federal and state Constitutions. A similar contention, made in Railway Co. v. Drew, 140 S.W. 810, was overruled by this court. As the disposition of that appeal was made to turn on the determination of that question, the refusal by the Supreme Court of the application made for a writ of error must be regarded as an approval by that court of the conclusion then reached by this court. And see Railway Co. v. Foth, 101 Tex. 133, 100 S.W. 171,105 S.W. 322, and Railway Co. v. Bailey, 53 Tex. Civ. App. 295,115 S.W. 601. In both the Foth and the Bailey Cases the statute was held to be constitutional. In the Bailey Case a writ of error was refused by the Supreme Court. In the Foth Case a writ was granted, but on another ground, and the Supreme Court, in granting the writ, stated they agreed with the Court of Civil Appeals that the statute is not unconstitutional.
It is next insisted that the portion of said charge as follows is erroneous: "Or if you shall find that the plaintiff did not know the defective way in which the wall was left, if you have found it defective, and did not know of the danger incident thereto, then he did not assume the risk of injury incident to the same caving in." The vice assumed to exist in this portion of the charge is the failure of the court to tell the jury that, although appellee did not know of the danger he incurred from "the defective way in which the wall was left," he nevertheless should be held to have assumed the risk if he would have discovered the danger had he exercised "ordinary prudence and circumspection in the work he was engaged in." As we understand the statute (article 6645, Rev.Stat. 1911), the plea of assumed risk is not available on the ground of knowledge, or means of knowledge, by the employé of the defect or danger, where the employer, or his foreman, knows of the defect. It was not disputed that Yancey, the foreman, was present and knew at least as much as appellee did about the danger to be incurred in attempting to do the work appellee was doing in the ditch when a wall thereof caved in on him. For the reasons suggested, the sixth, seventh, eighth, and tenth assignments, presenting contentions with reference to the issue of assumed risk, are overruled.
The court refused to give to the jury a special charge instructing them to find for appellant, notwithstanding they might believe it had been guilty of negligence, if they also believed that appellee, "without any previous instructions from the foreman in charge of said work, took an axe and began chopping on the mud sills in the excavation that had been made and in which he was working, and that as a proximate result of the chopping with said axe on the mud sills, if he did so, the wall of the excavation caved in and fell upon plaintiff and injured him, and you should further find that it was negligence upon the plaintiff's part to chop upon said mud sill with an axe, if he did so." It is a sufficient answer to the complaint based on the action of the court in refusing the charge, and also to the complaint based on the failure of the court to submit to the jury an issue as to negligence on the part of appellee, to say that a question as to contributory negligence was not made by the testimony. Therefore the twelfth, thirteenth, fourteenth, and fifteenth assignments are overruled.
The court instructed the jury as follows: "If you shall find from a preponderance of the evidence that, in making the excavation for the purpose of removing the old drain box, the walls of the excavation were not propped or shored up to keep the same from falling; and if an ordinarily prudent and cautious person, under the same or similar circumstances, would not have left the walls of the excavation so unpropped, and if you further find that such unpropped condition of the walls of the excavation rendered the place where plaintiff's duty required him to work not reasonably safe for the performance of the labor to be performed by him, and if a reasonably prudent and cautious person would have reasonably foreseen that leaving the walls unpropped rendered the place where plaintiff's duty required him to work not reasonably safe for the performance of his work in an ordinary, usual, and prudent manner, and that the walls would likely cave and injure some employé engaged in removing the old culvert, then if you find that plaintiff was directed by Yancey to perform the work in which he was engaged when the dirt fell on him, or if it became *Page 629 his duty (in the employment in which he was engaged) to perform the work in which he was engaged when the dirt fell on him, and if you find that the dirt so fell on plaintiff as the direct and proximate result of the walls being unpropped, and injured him, you will find for plaintiff, unless you find that he assumed the risk, under instructions hereinafter given to you in charge." The instruction is attacked as erroneous on the ground that "it takes from the jury," quoting from the brief, "the question of negligence, by grouping certain facts and telling them, if such facts are true, to find for plaintiff." To our minds the instruction plainly is not subject to criticism on the ground stated. Its effect was to tell the jury, if appellant failed to use ordinary care, to make a ditch a reasonably safe place in which to do the work it directed him to do; and if, as a proximate result of its negligence in that respect, appellee was injured, it was liable to him, unless he had assumed the risk incurred in doing the work. The instruction is further objected to because it submitted to the jury, as an issue to be determined by them, a question as to whether the walls of the excavation had been propped or not. It is said this was error, because the testimony was undisputed that the walls had not been propped or otherwise secured. Conceding the instruction in this respect to have been erroneous, the error was harmless and is not a reason why the judgment should be reversed. Railway Co. v. Scholz, 44 S.W. 560; Johnson v. Railway Co., 24 Tex. Civ. App. 148,57 S.W. 869. Therefore the ninth and eleventh assignments are overruled.
Finally, it is insisted that the verdict and judgment are excessive. If the injury suffered by appellee is of the character indicated by the testimony admitted in his behalf, the verdict clearly is not excessive. That it was of that character was determined by the jury. No reason why their finding should he set aside is suggested by anything we have found in the record.
The judgment is affirmed.