(specially concurring).
I concur in the opinion by Mr. Justice COMPTON, but desire to add a few words of my own.
In view of the record and the verdict of the jury we must accept the claim Freeman made the trip to Grants to purchase water bags in order to provide water on the job for the men working there. It is true this was first established by the plaintiff through leading questions when he called Freeman as an adverse witness in his ■case in chief. Freeman gave the same testimony on direct examination while testifying for the defendants.
There remains then on this feature of the case the issue of whether through custom it was the duty and responsibility of the foreman to see that drinking water was provided on the job for the men. Such was the testimony of Freeman, and although it was denied by-Haake the jury chose to believe the former. This finding, in my opinion, concludes that issue.
The undisputed testimony of Freeman was that when ¡Superintendent Gibson left he appointed Freeman as foreman, turned the truck over to him to use for transportation, and instructed him to act as foreman until the bridge was completed. This issue was, like the others, fairly submitted to the jury under proper instructions, and resolved in favor of the claim of the plaintiff that Freeman was the foreman.
The testimony above detailed did not come as a surprise to the defendant Haake at the trial. Freeman’s testimony had been taken by deposition before the trial when all parties were represented by counsel. It is true that Gibson had left the service of Haake and was working in Colorado, but there was no claim his deposition could not have been taken for use at the trial if there was any reason to believe Freeman had testified falsely in his deposition.
I see nothing inherently improbable in the testimony which supports the verdict.