The facts from which the negligence of the defendant ■ could be found were abundantly proven. The employes of the defendant had made an excavation between the rails and outside of them to a depth of six inches; The defendant’s driver, ágainst the warning of those at work upon the trench, drove on a trot into this trench, and the front wheels of the car, in which the plaintiff and other passengers were seated, dropped into the trench, and injured the plaintiff by throwing him to the other side of the car from the side upon which he was sitting at the time of the accident There was no question bjut that the plaintiff was free from- negligence. He was a passenger, seated in the car, reading, and was injured without a moment’s notice of danger. The digging of a trench so deep as to weaken the track so that it would not hold the car, and the disregard of warning by the defendant’s driver that he must stop his car, is such conclusive proof of the defendant’s negligence that an assessment of damages was all that was left for the jury. There was no error in the charge as to the horses running into the open trench. Running or walking was' immaterial,, so long as the,driver threw his car in the excavation; but- when a driver trots in clear daylight into a trench, against *269warning, a court is justified in telling a jury that, if proven, it is negligence. The judgment and order denying a new trial should be affirmed, with costs. All concur. •