The facts sufficiently appear in the opinion. This action was brought by the respondent to recover from appellant damages for personal injuries, physical pain, and mental anguish caused and alleged to have been suffered by him in a wreck while in the employment of appellant as engineer of one of its engines on the 30th day of January, 1900, of which respondent was in charge at the time.
The material averments of the complaint, briefly stated, are that on or about the 15th day of January, 1900, while acting as a locomotive engineer, he discovered that his engine was in need of repair by reason of the fact that the springs connecting with the bolsters supporting the tank on the *Page 424 tender had become weakened from use, so that the tank was permitted to roll from side to side when the engine was in motion; that upon discovering the condition of the springs he notified E. Gest, the general manager of appellant, of such condition, and the effect thereof, and requested him to have them repaired; that about the same time he gave a similar notice to and made the same request of E. Smith, appellant's master of transportation; also at the same time notified Gest and Smith of what was necessary to remedy the defect, namely, to fasten pieces of iron upon the ends of the bolsters, so as to prevent the tank from rolling, and by attaching safety chains, one at each corner of the truck, to prevent the trucks from turning under the tender.
Thereupon Gest and Smith informed respondent that the engine would be repaired as requested.
Shortly thereafter, and on the 30th day of January, 1900, while respondent was running the engine, and by reason of the defect, the tank rolled to such an extent that the front bolster of the tender caught in the frame of the truck of the tender in such a way that when the tank rolled in the opposite direction it lifted the truck from the track, and the truck turned under the tender, causing a derailment of the engine, throwing it over an embankment, and throwing plaintiff from the engine so that he fell beneath a portion thereof, and was injured to the extent of having two ribs on the left side broken and crushed into the left lung, the muscles of the right arm bruised and burned, a blow received upon the head, causing the right ear to become affected, so that it became necessary to lance the drum thereof; that the injury was caused to respondent by reason of the negligence of appellant in failing to repair after being notified by respondent of the defect.
The answer of the appellant put in issue all the material allegations of the complaint, and, in addition thereto, set up other defenses not necessary to be stated, as no questions are involved in this appeal under the same.
The case was tried before a jury, and a verdict in favor of the respondent returned for $15,500 damages. From the judgment rendered thereon, and from the order denying appellant's motion for a new trial, this appeal was taken. *Page 425
The material facts controlling the questions made on this appeal under the assignment of errors are as follows: The respondent, at the time of the trial, was 37 years old. During a period of fifteen years preceding he was a locomotive engineer continuously in the employment of the appellant On or about the _______ day of January, 1900, he discovered that the tank of the tender of the locomotive which he was running was rolling from side to side, caused by a gradual weakening of the springs under it from use, and that there was danger that the bolster supporting the tank would catch under the arch bar of the truck, and the tank rolling in the opposite direction would lift the track from the track and derail the tender.
On or about the 21st day of January, 1900, respondent called the attention of the train master and general manager of the appellant to the defect, and at the same time explained what was necessary to remedy it. The train master at that time informed respondent that he would see the general manager, and have it fixed. It required two days to make a trip over appellant's road from Reno and return.
On or about January 25, 1900, the respondent went to the office of appellant's general manager, and notified him that the tank was rolling too much, and that it ought to be fixed right away. The general manager informed him that he would have the needed repairs made right away. Relying upon the promises of the officers of appellant, the respondent continued to run his locomotive until the 30th day of January, 1900, at which time, on his return trip to Reno, when coming down a grade upon a curve in the road at the usual rate of speed, the tender was derailed from the defect, the engine thereby thrown from the track over an embankment and upon the respondent, inflicting the injuries complained of.
The following injuries to respondent were occasioned in the wreck: A blow upon his head, causing almost deafness of a permanent character in his right ear; a burn upon his right leg; a burn upon his right arm; two ribs broken, detached from the sternum, and depressed upon the left lung; a permanently painful sprain and separation of the muscular fibers of the back, rendering it permanently weak, causing lateral curvature of the spinal column, and permanently disabling *Page 426 respondent from following his avocation of locomotive engineer or performing ordinary manual labor.
There was evidence before the jury tending to show that respondent's 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 respondent's earning capacity as a locomotive engineer was about $100 per month. The engine and tender in use at the time of the wreck were practically new, having been in use since the 13th 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 a witness who was sick. The refusal of the court to grant a continuance has been assigned as error.
It appears from the record that the witness on account of whose absence the continuance was sought was not present when the accident causing respondent'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 even admissible.
The other testimony of the absent witness, relating to the incompetency of the respondent to properly and skillfully run, operate, and control a locomotive engine with a train of cars thereto attached with compressed air by means of a Westinghouse air brake, was not material to any issue 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 appliances. It appearing that there was no abuse of discretion in the refusal to grant the continuance (8 Enc. Pl. Prac. 828;Choate v. Bullion Mining Co., 1 Nev. 73), the action of the trial court "thereon must be sustained.
Upon the facts stated, the appellant contends that continuance in the service by respondent notwithstanding the promise of appellant to repair as a matter of law was such contributory negligence as to defeat his claim for damages. *Page 427 For this reason it is earnestly insisted by appellant that the verdict is against both the law and the evidence.
While it may be true that it is the duty of the court in a proper case, upon the facts found, to declare as a matter of law that there was such contributory negligence as would relieve the master of all legal liability, yet such rule should be applied only in cases where, from the facts found, such inferences only can be drawn.
The general rule applicable to cases of this character, established by the great weight of authority, is that, if the servant, noting a defect in the machinery, complains to the master of such defect, who promises that such defect shall be remedied, the servant may, in reliance upon the promise, continue in the service for a reasonable time thereafter without thereby assuming the risk, provided the danger is not of so imminent and immediate a character that a person of ordinary prudence would refuse to continue in the service. (Hough v. Railroad Co.,100 U.S. 215, 25 L. ed. 612;Stephenson v. Duncan, 73 Wis. 404;Manufacturing Co. v. Morrissey,40 Ohio St. 150; Laning v. Railroad Co., 49 N.Y. 521;Patterson v. Railroad Co., 76 Pa. St. 389;Conroy v. Vulcan Iron Works, 62 Mo. 35;Greenleaf v. Railroad Co., 33 Iowa, 52;Indianapolis Railway Co. v. Watson,114 Ind. 20; Railway Co. v. Ott,11 Ind. App. 564; Marsh v. Chickering,101 N.Y. 396; Lyttle v. Railroad Co.,84 Mich. 289; Missouri Furnace Co. v. Abend,107 Ill. 44; Linch v. Manufacturing Co.,143 Mass. 206; Railroad Co. v. Bingle,91 Tex. 287; Parody v. Railroad Co., (C. C.) 15 Fed. 205.)
Upon the authorities above cited is also based the general rule that the time in which the servant is justified in continuing in the service in reliance upon such promise without assuming the risk is such a period as would not preclude all reasonable expectation that the promise might be kept, and this is ordinarily a question for the jury.
We cannot, therefore, hold, as a matter of law, neither are we able to say as a matter of fact, upon this record, as against the verdict of the jury, that the danger was so imminent and immediate that the respondent, as a prudent man, should have refused to continue in the service notwithstanding appellant's promise to repair. *Page 428
As a matter of fact, the tank set up on springs, when filled with water and fuel, would necessarily roll to some extent when running upon the road. The tender was new, and had been used only a few weeks before the accident. The rolling of the tank was the result of the gradual weakening of the springs from use. When respondent first called the attention of appellant's officers to the defect, it was only "getting dangerous." That the danger was not imminent and immediate at that time appears from the fact that he continued to run the engine and tender without accident. Even after he thought it was rolling too much, and had notified appellant's officials on the 25th day of January, he continued to run it without accident.
The danger, therefore, at the time the promise was made, was not imminent and immediate, but, measured by the defect shown, was progressively dangerous. It will not do to say that because respondent knew the machinery was getting dangerous, and because the accident did happen, as a matter of law and a matter of fact the danger was immediate and imminent. To so hold would absolutely destroy the legal effect of the master's promise under the rule stated. (Conroy v. Vulcan Iron Works, 6 Mo. App. 102.) Under the facts of this record it was for the jury to say, under the rule stated, whether the danger was so imminent and immediate that the respondent, as a reasonably prudent man, would have refused to continue in the service notwithstanding appellant's promise to repair, and whether he did continue under such promise such a period of time as to preclude all reasonable expectation that the promise would be kept.
It is next urged by appellant that the damages awarded are so excessive as to appear to have been given under the influence of prejudice. There was evidence showing that as the result of the accident the respondent, who was about 36 years of age, received a blow upon his head, causing permanent partial deafness of the ear, a burn upon his right leg, a burn and bruise upon his arm, two ribs broken from the sternum and depressed upon the lung, a permanently painful strain and separation of the muscular fibers of the back, rendering it permanently weak, and causing a lateral curvature *Page 429 of the spinal column, permanently disabling respondent from following his avocation as a locomotive engineer, or performing ordinary manual labor. There was also evidence tending to show his earning capacity as a locomotive engineer. The jury was justified in taking into consideration all these facts in estimating the amount of damages, notwithstanding there was evidence tending to show that the injuries were neither so extensive, permanent, nor painful as claimed by respondent.
"There being no absolute fixed legal rule of compensation, appellate courts ought not to interfere with the verdict unless it clearly appears that there has been such a mistake of the principles upon which the damages were estimated, or some improper motive or bias indicating passion or prejudice upon the part of the jury." (Solen v. Railroad Co., 13 Nev. 138.)
Taking all these facts into consideration, we cannot say that it clearly appears that there has been such a mistake of the principles upon which the damages were estimated or some improper motive or bias indicating passion or prejudice upon the part of the jury.
"The amount of the verdict — although perhaps greater than we would have given — is not, in our opinion, inconsistent with the exercise of an honest judgment upon the part of the jury, whose special province it was to determine this question." (Solen v. Railroad Co.,supra.)
An examination of the other assignments relating to the exclusion and admission of evidence convinces us that they are without merit, and therefore require no notice in this opinion.
The judgment and order appealed from are affirmed.
BELKNAP, J.: I concur. BY THE COURT: Rehearing denied.
FITZGERALD, J.: I dissent.