(after stating the facts). 1. It is conceded that the duty rested on defendant to construct its tunnel without disturbing the water main. It is said that it fully performed this duty. It is argued that inasmuch as the theory of quasi contract relations of the parties rests upon the idea of such a duty, and as elaborate and successful means were taken to perform it, defendant is not liable. It may be doubted whether this statement *141of the duty resting upon the defendant is complete. The extent of the duty, the enforcement of which by an action of contract is permitted by a fiction of the law, must be determined by common sense and common justice. The duty of the public authorities in the premises should not be overlooked, nor the consequences of a break in the pipe, if the precautions taken had proved insufficient. Indeed, for the purposes of argument only, the appellant assumes that precautions other than the mechanical contrivances for supporting the pipe and for restoring its disturbed level were suggested by the circumstances. The appellant recognized the propriety, if not the duty, of being prepared -to close the valves in the pipe. It did this by applying to the plaintiff to place men at the valves, equipped with apparatus for closing the valves. And in the written protest made in September, 1908, to the plaintiff, the appellant was complaining, not about the propriety of being able to control the valves whenever the soil in the street should be disturbed, but that until the tunnel approached the pipe the additional precautions taken by plaintiff were unnecessary. In part the communication read:
“ In our judgment these men are wholly unnecessary at present. We would, in this connection, call your attention to the fact that for the past year and a half or more you have had a watchman there at our expense and this should be a sufficient safeguard until such time as we get near to the water main with our tunnel, when we again resume the work of excavating. We shall then be glad to have you put on the men that you consider necessary, and shall be willing to assume the expense in connection therewith. We would also point out to you that there should be no necessity for having as many as eighteen men. A force of six men should be sufficient, because we will at all times have our men in the immediate vicinity who could be called upon by any of your watchmen for assistance in closing the gates, whenever required. We would, therefore, respectfully request, when the watchmen are again put on, that only two men be employed in three shifts of eight hours each, making six men for every twenty-four hours. We fully realize the risk involved if *142a break should occur in this main and we are perfectly willing to stand any reasonable expense in connection therewith for the purpose of safeguarding the city’s interests. We trust your honorable board will take.action as herein requested.”
The difference between the plaintiff and the appellant was not so much one concerning the duty owed by appellant, as it was one concerning the measures to be employed in its performance. They agreed that during a certain period, not arrived, but which did arrive, it would be proper to have more men at the valves, and that appellant ought to pay these men. They disagreed about the number of men necessary to perform the duty and whether the period had arrived when they should be put to work. We do not mean by this to say that the mere offer of appellant to employ additional men was, in the absence of its acceptance, conclusive evidence of the measure of its duty in the premises. But the offer is itself persuasive evidence of the fact that for some period of time, not arrived, greater precautions than had theretofore been taken would be required in the exercise of ordinary care. It is the theory of plaintiff and a proper legal theory, that, if appellant refused to take the ordinary care demanded by the circumstances, plaintiff had the right to do so at its expense. Whether defendant took such care, and whether plaintiff did more than the defendant should have been required to do, were not questions for the court.
2. It is alleged in the declaration, in the first count, that the defendant threatened to disturb, and did disturb, the water pipes owned by the plaintiff, which water pipes crossed and cross the course of the tunnel, and that plaintiff employed men to watch said water pipes. A witness was asked, “ Do you remember when the eight-inch pipe broke?” and, over objection, answered, “It was on the morning of March 8, 1909.” An officer of appellant, on cross-examination, over objection, testified that he did not protect the eight-inch pipe, that it was cheaper to let it break, and that appellant paid for it. This testimony *143was commented on by plaintiff’s attorney in his argument to the jury. No recovery was sought because of the breaking of the pipe, and the testimony seems to have been wholly immaterial to the.issue.
3. A member of the plaintiff board testified that what induced the board to refuse to recall the men and to continue them over appellant’s protest was “to guard against an appalling loss of life, and the dangers of a conflagration that were very imminent in case there was a break in the pipe.” The objection was that the testimony called for by the question was immaterial and incompetent. The testimony called for was not immaterial nor incompetent. It was not opinion evidence. Appellant has given reasons for its refusal to employ more men at the valves. The good faith of plaintiff was material, and the probable results if the pipe should be broken were loss of life and loss of fire protection to a portion of the city. The witness might have answered the question more simply; but no motion was made to strike out the answer, and we think no reversible error was committed in receiving the answer which the question called for.
4. The criticisms of the charge of the court are not very specific. It is said that on the whole it was prejudicial to appellant. The eighth and ninth requests to charge might well have been given as they were prepared by counsel. The substance of them was given and correctly stated the law. The reference in the charge to the seven modern wonders of the world, and the general want of clearness and of certainty of expression, do not call for a reversal of the judgment.
Upon a careful review of the record and briefs, we are satisfied that no error of law prejudicial to defendant was committed, and, no motion for a new trial having been made, we affirm the judgment.
Steers, Moore, Brooke, and Stone, JJ., concurred.