The motion to strike special replications to plea 2 could have been properly granted only upon the assumption that the facts alleged in the special replications were provable under the general replication to that plea, the traverse thereof; and if that were true the defendant was not prejudiced by the overruling of the motion. The action of the trial court appears, therefore, no- ground for a reversal of the judgment.
We are not prepared to affirm as matter of law that the danger to plaintiff incident to- his iiresence in the trench from the liability of its Avails, imperfectly braced as they Avere, to cave in Avas obviously of such a character as that a man of ordinary care and prudence Avould not have gone into and taken the position he occupied in the trench. The evidence sIioavs that the- Avails were not properly braced and that plaintiff was aAvare of this. Jt also sho-Avs that they Avere likely to cave in more or less along there, and that plaintiff had an appreciation of this fact. But the trench was only from four to- six feet in depth. There could not be a caving in that *633would have covered a man standing up therein. There could hardly be a caving in that would cover a man even in a stooping position. The plaintiff was in such position when the caving in that hurt him occurred, and he was not submerged. There was a greater precipitation <ff earth on this occasion than on any other in that trench. It seems that even in that position he would not even have been hurt but for the fortuitous circumstance that his shovel was sticking up in such a position that the falling earth forced his body against its handle. It does not appear that any of the other many cavings occurring to plaintiff’s knowledge in that trence had injured anybody, or were calculated to injure anybody in the trench. On these facts we cannot say, we repeat, as a matter of law, that the danger of being where plaintiff was was so apparent and so great, and imminent that no ordinarily prudent man would have been there. It is not enough in such case that the injured party knew of the likelihood of the walls caving. Knowing that, the probable precipitation must have involved such likelihood of injuring a person in the trench as to deter a man of ordinary care and prudence from exposing himself to it. The jury might have found this to be the fact; hut it was a question for them. The court could not affirm it to be the fact, as it was in effect requested to do by the defendant in charges 1 and 2. Tho.se charges Avere properly refused.
*632Vol. 141.
*633Affirmed.
Haralson, Dowdell and Denson, J.J., concurring.