On Motion for Rehearing.

delivered the opinion of the court.

The remarks of counsel for appellant as to the filing of an appeal bond need not be considered by us, as reference to the original opinion, ante, will show that all that is said therein was obiter dictum and expressly stated so to be.

Counsel complains that except as to the matter of the appeal bond “all questions presented by this appeal were '* * * overlooked by such decision. ’ ’" The brief of appellant sets out only four specifications of error; that is to say, he declares that the court erred in giving certain instructions, four in number. The opinion shows plainly that we decided the question of the correctness of these instructions.

Instruction No. 11 is as follows: “You are further instructed ■ that in entering into the employment of the defendant, the said William Thomas assumed all the obvious and ordinary risks or dangers incident to and arising out of the said employment, and the character of the work upon which he was engaged; and that if the injury which he received arose out of such obvious *374risks and dangers, then the defendant cannot be held liable therefor.” “Obvious and ordinary risks” are distinguishable from the obvious and the ordinary risks. The quoted phrase means obvious ordinary risks, and plaintiff should not complain because the court did not go further and say that he assumed also ordinary risks which were not obvious.

It is true that the defendant did not in its answer aver that the risk was an ordinary one, but there was evidence introduced, without objection, to support such theory; and the case having been tried upon this theory of the defense, the instruction was not improper.

Instruction No. 18 is as follows: “The law required William Thomas to use his natural faculties. Whatever he might have seen or discovered, exercising reasonable and ordinary care, he is supposed to have known. If he had an opportunity to ascertain whether the ladder was loose or not, his duty would not permit him to blindly venture upon it, without investigation. He is required to use his ordinary senses in places of danger, such as ascending or descending through openings, and if he failed to do so, and was injured on account thereof, he cannot recover, although the defendant company may have been negligent in not properly securing the ladder. ’ ’

Counsel finds fault with the sentence “his duty would not permit him to blindly venture upon it without investigation.” The appellant was about to go upon an unattached ladder down a dark place in a mine. It seems to us that the sentence was only another way of saying that he ought to have used ordinary care —common sense — to see or feel where the ladder was and how it was. The court was talking about a ladder at a particular place and at a certain moment of time. The instruction cannot properly be said to mean that it is the duty of an employee, in the exercise of ordinary care, to make himself an inspector or investigator of appliances in a mine. It was for the jury to say whether he used ordinary care if he failed, under the circumstances named, to satisfy himself where the ladder was.

*375We do not think that any of the instructions contained error prejudicial to the appellant under the peculiar circumstances of this case. The motion is denied.

Denied.

delivered tbe opinion of tbe court.

On appeal from an order denying appellant’s motion for a new trial and from the judgment. This is a personal injury case. Tbe jury found for tbe defendant, and judgment was entered accordingly.

There are four specifications of error, to-wit, tbat tbe court erred in giving each of four instructions to tbe jury. We have examined these instructions, and find tbat they are correct state*373ments of the law. Appellant contends that the court omitted from them certain propositions of law favorable to him. If this be so, the appellant may not complain, as he did not request the court so to charge the jury. The order and judgment must be affirmed.

Obiter: There is not anything in the record to show that an appeal bond was made or filed, or waived in writing, and it is doubtful whether we should consider the appeal at all, as without a bond made or filed, or waived as provided by law, “the appeal is ineffectual for any purpose.” (Code Civ. Proe., sec. 1724.) This point, however, was not made in the brief.

Affirmed.

I concur in the result, but do not desire to be understood as approving instruction 18 as proper to be given in any ease. Under the circumstances of this case I do not think it prejudicial.