Opinion by
The plaintiff was a motorman in the employ of defendant company. On the afternoon of February 28, having made his last run for the day, he was returning his car to the barn. In going down a steep grade the car got beyond his control, jumped from the track, and ran into a building at the side. In the accident he received the injuries for which he seeks to recover in this action. He attributes his inability to control the car to defective brakes. He had been operating this car for several days. He testifies that the first day he operated it he found that the brakes were not in proper condition, and that he reported this fact when he turned the car in, and asked that it be repaired. The next day he found the same difficulty in applying the brakes. He again reported the defect, and was assured that the brakes would be attended to. On the morning of the 28th he was assigned to the same car, and on returning it about ten o’clock in the forenoon he again reported that the brakes would not work. Reporting in the afternoon for duty he found workmen engaged on the car, and the foreman then told him that it was all right, and that he could run it safely. He found that in operating the brakes that .afternoon more force than was usually applied was required to make the brakes operate; but notwithstanding, he made his trips without accident, until the mishap occurred which resulted in his injury. A verdict for the plaintiff was followed by a motion for judgment non obstante. The refusal of the motion is assigned for error.
Of the reasons in support of the motion but three call for consideration; the others have regard not to the sufficiency of the evidence to sustain the verdict, but to the effect of defend
The plaintiff with full knowledge of the fact that the brakes were defective, continued to operate the car. An employee who continues to use a machine which he knows to be dangerous takes upon himself the risk of injury therefrom; but this rule is inapplicable if the risk does not threaten immediate danger, and "the employee continues in the employment in pursuance of a promise of the employer to remedy the defect : Brownfield v. Hughes, 128 Pa. 194. Where the danger threatened is so obviously imminent that any reasonable person must have appreciated it, continuance in employment under such circumstances implies an assumption of risk, and the court may so adjudge it as a matter of law; but this case does, not fall within this rule. Plaintiff had operated the car for two days before, knowing the condition of the brakes, but with a promise at the close of each day that the defect would be corrected. During this time, notwithstanding the defect, he was able to keep the car so far under control that no accident happened. Certainly the court could not under such a state of facts hold as matter of law that the plaintiff had assumed the risk. This was a question for the jury. So, too, was the question of contributory negligence. It would be a duty resting on the plain
Tudgment affirmed.