Cummens v. Owen Bros. Const. Co. , 1917 Tex. App. LEXIS 146 ( 1917 )

The assignments based on the action of the court in giving and refusing instructions are overruled. It does not appear that appellant excepted to the action of the court in those particulars. Therefore he is in the attitude of having approved at the trial the rulings complained of in said assignments. Articles 1971 and 2061, Vernon's Statutes; Palmer v. Logan, 189 S.W. 761.

The only other assignment in appellant's brief is one in which he complains because the court excluded as evidence a clause in the contract between appellee and Fannin county as follows:

"The contractor [appellee] hereby assumes all risk and liability for accidents and damages that may accrue to persons or property during the prosecution of the work by reason of the negligence or carelessness of himself, his agents or employes."

Had appellant been a party to the contract, or for any other reason entitled to invoke the stipulation set out, and he was not, it would not have helped his case; for he was not injured "during the prosecution of the work" of constructing the road, but after it was completed and because of a defect in it as completed.

The judgment is affirmed.