Tbis is an action for personal injuries suffered by tbe plaintiff, while an engineer in defendant’s employment, by tbe explosion of a water-glass on tbe defendant’s locomotive, impairing tbe sight of *109the plaintiff’s right eye. The ease was first here 157 N. C., 146, when a new trial was awarded. It was here again 162 N. C., 424, and upon writ of error it was then heard in the United States Supreme Court, 233 U. S., 492, and the writ being sustained, the case was remanded to the lower court, where, as we think, upon a review of the record, it has been tried strictly in conformity with that opinion of the United States Supreme Court.
The argument of the defendant seeks to put the plaintiff in this predicament : that if the likelihood of injury from an explosion of the glass was not apparent, then the defendant was not guilty of negligence; but, on the other hand, if such defect was apparent, then the plaintiff assumed the risk and is equally barred from recovering damages.
But that was not the ruling of the United States Supreme Court, as we understand it. That Court held: “When the employee knows of a defect in the appliances used by him, and appreciates the resulting danger, and continues in the employment without objection or without obtaining from the employer an assurance of reparation, he assumes the risk, even though it may arise from the employer’s breach of duty. But where there is promise of reparation by the employer, the continuing on duty by the employee does not amount to assumption of risk, unless the danger be so imminent that no ordinarily prudent man would rely on such promise.”
The plaintiff testified that he notified the proper official that the guard-glass was gone, and asked for one, and the reply was that the road did not have any in stock, but had them in Portsmouth, and the company would send there and get one, and said that the plaintiff would “have to run the engine like she was.”
There was evidence from which the juiy could find that while the absence of the guard-glass was a defect causing danger to the plaintiff, and which amounted to negligence on the part of the defendant, yet it was not such an imminent danger as would justify excusing the defendant, if the plaintiff remained on service after reporting the defect and receiving assurance that it would be repaired. The court properly told the jury that “Risks not naturally incident to the occupation may arise out of the failure of the employer, the defendant in this case, to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These latter risks the employee is not treated as assuming until he becomes aware of the defect or disrepair or of the risk arising from it, unless the defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them.”
The court further charged: “When an employee does know of the defect and appreciates the risk that is attributable to it, then if he con*110tinues in the employment without objection, or without obtaining from his employer or representative the assurance that the defect will be remedied, the employee assumes the risk, even though it arises out of the master’s breach of duty. If, however, there be a promise of reparation, even during such time as may be reasonably required for its performance or until the particular time specified in such performance, the employee relying upon the promise does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man would rely upon such promise.”
The defendant excepted to the above instructions, but we think it is strictly in accordance with the decision of the United States Supreme Court in this case, and that upon the evidence the jury were authorized to find, as they did in response to the second issue, that the plaintiff did not assume the risk of injury.
There are numerous other exceptions, but this case has been so fully considered in every aspect of the law and the facts have been so fully set forth on the two former appeals in this Court, and also upon consideration of the writ of error in the United States Supreme Court, that it would be work of supererogation to go over the same ground a fourth time.
The very careful and learned judge who tried this case below seems to have fully comprehended and to have closely and carefully followed the decision of the United States Supreme Court upon the points on which that Court gave a new trial, and we find no error in his rulings.
The only other exception that we need refer to is the refusal by the court below of the motion for a new trial for newly discovered evidence. Such refusal was discretionary with the court, and is not reviewable here. It is true, the judge stated that the newly discovered evidence, if true, was merely cumulative. But that does not justify us in reversing his judgment denying the motion for a new trial.
The defendant’s cause has been very fully and ably presented, but we find nothing that would justify us in setting aside the verdict and judgment. The court and jury had the benefit of all the light that could be shed upon this controversy, from every angle, by this Court and the United States Supreme Court, and seem to have faithfully followed the views of the Court of highest resort where it differed from the views of this Court, and in other respects to have followed the well settled decisions of this tribunal.
No error.