Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-08-01

UNI and depressed upon the left lung:
q permanently painful sprain and sep
aration of the muscular fibres of the
back, rendering it permanently weak,
lateral curvature of the spinal
column and permanently disabling res
pOn0ent from following his avOcation
of locomotive engineer or performing
ordinary manual labor.
There was evidence before the jury
tending to show that respondents
hearing would gradually grow worse,
and that the injury to the muscles OF
the back would cause continuous pain |
in the future. There was also evidence |
tending to show that respondents |
earning capacity as locomotive en- |
gineer was about 500 per month. The |
engine and tender in use at the time |
of the wreck were practically new, |
having been in use since the 18th day |
of December preceding the accident.
When the cause was called for trial
the appellant applied to the court for
a continuance. The application was
based upon the absence of witness
who was sick. The refusal of the
Court to grant the continuance has
been assigned as error. It appears
from the record that the witness on
account of whose absence the cOntin-
uance was sought, was not present
when the accident causing respond
ent's injuries happened, and was not
even at that time within this State.
His knowledge of the facts expected
to be proven by him as set out in the
affidavit in support of the motion,
could have been based upon hearsay
alone, and such testimony was not ev-
en- admissible. The other testimony
of the absent witness relating to the
incOmpetency of the respondent to
properly and skillfully run, operate
and control locomotive engine with
q train of cars thereto attached, with
| compressed air by means of a West
inghouse air brake, was not material to
any issues made by the pleadings.
Comp. Laws, 1900, sec. 3255.) And
even if material the record shows that
such expert testimony could have been
supplied by other witnesses familiar
| with the use of such mechanical ap-
planes. 1t appearing that there was
no abuse of discretion in the refusal
to grant the continuance g Ency. Pl.
and Pr. S2S; Choate v. The Bullion
NJ. Co., l New. 49, The action of the
trial Court thereon must be sustained
liant contends that continuance in the
ing the promise of appellant to repair
as matter of law was such cOntribu
tory negligence as to defeat his claim
for damages. For this reason it i.
earnestly insisted by appellant thai
the verdict is against both the Law
and the evidence. While it may b.
true that it is the duty of the Court il
, a proper case, upon the facts foun(
; to declare. as matter of law, tina
there was such contributory negli
gence as would relieve the master o
| all legal liability. yet such rule shoul,
be applied only in cases where from
! the facts found such differences onl,
can be drawn. The general rule appli
cable to cases of this character, es
, | tablished by the great weight of au
thority is. that if the servant nOtin
q defect in the machinery complains t
, the master of such defect. who prom
: Uses that such defect shall be remed
ed. the servant may in reliance upo
> the promise continue in the servic
for reasonable time thereafter witt
= out thereby assuming the risk pro
: vided the danger is not of so imm
nent and immediate a character the
: a person of ordinary prudence woul
5 refuse to continue in the service.
Hough V. The Railroad Co.. 10
~ U. S. 215.
e Stevenson V. Duncan g Wis 4O4
;, Union Mfg Co. v Morrissey. 4
" Ohio St. $50:
Laning V. The Railroad Co., 40 !
, Y 521;
" Patterson v The Railroad Co, I
Pa. ST. 389;
!. Conroy v. The Vulcan Works, {
>, Mo. 35;
. Greenleaf v The Railway Co, +:
c Iowa, 50;
Indianapolis Railway Co v. Wa
% son. ia Ind 20;
n. Same'v. OFT, Ii Ind. App. 5G4;
IS Marsh V. Chickering, 101 n.
1876;
10 Lyttle V. Railroad Co. 81 Mic
~ 2S9.
g Missouri Co v. Abend, 1877 L
. "A;
~ Luich v Mfg. Co., 143 Mass. 20t
II Texas z. Co. V. Bingle, 81 TIE
20 2S7;
~ Parody V. The Railroad Co,
,o Fed 300.
d. Upon the authorities above cite
it is also based the general rule that Il
er time III which the servant is justifie
Tx in continuing in the service in r
le lance upon such promise without a
o. Stunning the risk, is sue ha period
* would not preclude all reasonable e
n pectation that the promise might
H. kept, and this is ordinarily a que
It. ton for the jury.
n We cannot therefore hold as a ms
ne ter of law. neither are we able
ed say IS matter OF fact, upon this re
II. ord, as against the verdict of the jur
n chat the danger was so imminent al