On Appellee’s Motion For Rehearing
In appellee’s motion for rehearing he calls our attention to two statements in our original opinion. We stated (1) that the shop faces south and (2) that the deposition of appellee’s agent was introduced in evidence by appellee. We acknowledge oversight in these two respects and correct our original opinion and say the shop faced north and that the deposition was introduced in evidence by appellant.
Appellee says we were in error in holding that the exclusion of evidence as to the damage done to the shop by the explosion was reversible because:
“(1) Such evidence was not relevant to any ultimate issue in the case.
"(2) Substantially the same evidence was received at other places in the record.
“(3) The excluded evidence related to an immaterial issue of fact, in view of the jury’s answer to Special Issue Number 5.”
Appellee states the ultimate issues to be:
“(1) whether or not rocks and debris hit the plaintiff’s building, resulting in damage, and (2) whether or not ap-pellee’s employees negligently used an excessive amount of explosives, thereby causing earth tremors and vibration which resulted in cracking the south wall of appellant’s building.”
We think the ultimate issues, as made by the record before us, are: (1) Was appellant’s building damaged by the blast? (2) Were appellee’s agents negligent in setting off the blast? (3) Was such negligence, if any, an approximate cause of damage to the building? And (4) What was the amount of such damage?
The results following the explosion such as rocks and debris being thrown against the shop, its doors demolished and large holes torn in its walls would tend to show the force of the explosion and its destructive power, and evidence of that result was relevant to show the amount of dynamite used in the blast. Further the damage that was done at the distance the shop was located from the blast would be evidence bearing on the issue of whether or not the force of the blast was sufficient to and probably did throw the rocks against appellant’s building as alleged and was relevant to the issue *773that it caused earth tremors and vibration, and the damages alleged to result.
Appellant testified that on the morning after the explosion he was told about it; that he had been called for jury service at nine o’clock that morning; that he rushed by “there” and said:
“ * * * I drove down by the building before I left town.
“Q. What did you see around your building, if anyth ;ng? A. Well, I drove up through the alley to the back of the building and I noticed lots of junk concrete and stuff laying in the alley and street south of the building and alongside of the building, and I noticed a welding shop just southeast of the building demolished.
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“Q. How big were, describe the various sizes of the chunks of concrete which you say you saw down at the back and side of your building? A. Well, they varied from the size of your fist, oh, I would say to half as big as a man’s body. The only large one was at the corner of this building, and noticed the plaster knocked off of the other building.”
To the first question and answer above quoted appellant made objection. The objection and the trial court’s reply was:
“If the Court please, the witness answered the question and volunteered information that the Court previously sustained our objection on. We would like to ask the answer be stricken and the jury be instructed not to consider the answer given for any purpose.
“Court: Overrule the objection, but let’s confine our testimony to your building.”
We think the effect of the trial court’s statement was to direct the jury to confine its consideration exclusively to evidence of damage to appellant’s building.
Also, appellee’s agent (Bolding) who set off the blast testified, by deposition, that:
“Q. Do you know whether or not it damaged any other buildings that were adjacent to this Chevrolet building, whether it knocked any plaster down or 'hurt them any way? A. There was one little spot on that other building probably those big, where rock rolled out there and bumped against it and broke off a little piece of plaster.”
Appellee says the receipt of the foregoing testimony rendered, harmless the error excluding the other evidence of damage to the shop.
Following the above quoted testimony of Bolding he said:
“Q. How far did that rock go ? A. About 300 feet.
“Q. About three hundred feet, and y'our testimony is that the particular rock that damaged the plaster was rolling on the ground? A. That’s right; going along on the ground, because I . seen it with my own eyes.
“Q. Rolled three hundred feet up there and hit the building and knocked the plaster off? A. Yes.
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ifQ. Did this cause the ground to shake any, this explosion? A. No.
“Q. Didn’t cause earth tremors at all? A. No.
“Q. Do you know whether or not any rocks were thrown up against the south wall of the Chevrolet building. A. Not that I know of there wasn’t.
“Q. Do you know whether any rocks where thrown up against the east wall of the Chevrolet building? A. There was one that went out in the street, but I don’t think it ever went agin the wall; if it did I didn’t know it.”
We quote what we deem to be the most material portion of the excluded testimony:
Bob Overman:
“Q. What condition was that blacksmith shop in? A. The front was ■ tore completely up; it had a wooden door; it just splintered it all to pieces, and holes through the tin, I will say, within two feet diameter.
“Q. In two feet diameter. Now, what is the relative distance from the point of the blast between that blacksmith shop and Mr. Benson’s building; *774are they about the same distance away?
A. Well, I don’t know the exact distance, because I never did measure it or nothing’, but it isn’t too much difference between the blacksmith shop and ■the back of Mr. Benson’s building.
“Q. You say the front end of the blacksmith shop which was made of tin was demolished? A. It certainly was.
“Q. With holes two feet in diameter in the roof of it? No, sir, not in the roof, in front.
“Q. In front? A. Yes, sir.” Appellant:
“Q. And what was the condition of that blacksmith shop? A. When I seen it the morning after the blast the front of it was completely tore up. The wooden doors was tore plumb up and the big rocks went through the sheet- ■ iron on it.
“Q. Did you notice the size of any of the holes in front? A. I just noticed there being large holes in the front.”
Also appellee, who stated there was a tin building across the street from the point of blasting, was not permitted to state the condition of the building.
Under Rule 434, T.R.C.P., the burden was on appellant to show that the exclusion of the evidence probably resulted to his prejudice. However, he was not required to show that but for the error a different judgment would have resulted. Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191.
The excluded evidence would have given the jury a rather detailed statement of the damage done to the shop which was not before them from any other source.
Appellant’s suit was for the damages that he alleged were caused by the blast. The force of the explosion was a vital issue. The damage done to the shop tended to show its force and the excluded evidence was evidence of this character.
Appellee’s defense was that the crack in the wall of appellant’s building was not cause by the blast but existed prior thereto. Appellant’s proof on this issue was largely circumstantial and was to the effect that sometime prior to the blast appellant had inspected the wall and no crack was there; that after the blast the crack was in the wall; that an examination of the crack revealed that it was new; that there was a chipped out place where the crack began; that immediately below the chipped out place and on the ground there was a concrete boulder with smaller ones along the wall, and expert testimony that the crack was caused by external force.
Submitted issue 5 and the jury’s answer to it are:
“From a preponderance of the evidence, do you find that the crack in the upper part of the South wall of plaintiff’s building was there prior to the time of the explosion in question ? Answer, It was Or It was not
“Answer: It was.”
Appellee says that the jury’s answer to the above issue exonerates him and that the excluded evidence relates to an immaterial issue of fact.
The error in excluding evidence becomes immaterial where the case does not turn on the excluded evidence, that is, where it is not material and does not affect the verdict or judgment rendered. Gross v. Dallas Ry. & Terminal Co., Tex.Civ.App., 131 S.W.2d 113, error dism., judgm. cor. Also where the judgment is sustained by a finding which is entirely independent of the excluded evidence as was decided in the above case. Appellant sued appellee for personal injuries allegedly sustained as the result of appellee’s negligence. The jury found appellee guilty of negligence and also found appellant guilty of contributory negligence in three respects.
It was held that the refusal of the trial court to permit witnesses to testify whether the street car of appellee was going fast or slow was not, under the circumstances, prejudicial insofar as it affected appellant’s right to recover. The judgment was supported by the jury’s finding that appellant was guilty of contributory negligence.
The question before us is entirely different from the question before the court in the above case. The evidentiary elements *775of submitted issue five are: Was the force of the explosion sufficient to cast concrete and boulders against appellant’s building? Was concrete and boulders cast against the buil'ding? And, Was the crack caused thereby? Or, Was the force of the explosion sufficient to cause earth tremors and vibration? Did it cause them? And, Was the crack caused thereby?
The evidence shows that there were tie rods through the top of the walls of appellant’s building and near the crack alleged to have-been caused by the blast. If vibrations and earth tremors were caused by the blast which caused the walls or the tie rods to vibrate and the crack to result, then certainly any evidence tending to show damage to other buildings would be relevant on the issue of the force of the explosion and negligence of appellee’s agents in setting off the blast.
We cannot assume the verdict of the jury would have been the same as it was if the excluded evidence had been before them.
It is our opinion that the excluded evidence was admissible and that its exclusion was prejudicial to appellant.
Our original opinion is corrected as herein stated, and appellee’s motion is in all other respects overruled.
Original opinion corrected.
Motion overruled.