Appellee while in employment of appellant as a section hand was injured while on a hand car that was struck by another following it, and he claims that this resulted from a defective brake on the hindmost car.
After plaintiff had announced ready for trial defendant sought a continuance or postponement of the case until a later day of the term, *Page 344 and also presented a motion for rule on plaintiff to give security for costs. The application for continuance did not show sufficient diligence to procure the attendance of the witness for whose absence a continuance or postponement of the trial was asked, and the court overruled the motion for rule for security for costs on the ground that the motion came too late after plaintiff had announced ready for trial, and on the further ground that the court had by previous order set the case for trial on the day it was called.
The statute seems to contemplate that such motions may be made and rule granted "at any time before final judgment." Rev. Stats., art. 1436. But if a court should overrule such a motion urged within the time prescribed, it would seem that a judgment against a defendant which fixes upon it liability for all costs ought not to be reversed on this ground, unless it be shown that some injury resulted from the ruling.
It appears from the evidence of the plaintiff himself that he had been in the employment, in which the hand car claimed to have been defective was used, for about six months, and that he knew of the defect within two days after he commenced work, and from time to time made the defect known to the section foreman, who repeatedly promised to have the defect repaired, but never did so. Notwithstanding these facts, he continued in the service in which the car was used.
With others, the court gave the following charge: "The plaintiff would not be guilty of negligence in working with defective machinery, though he might know of its defects, if he had informed the master or his agent of the defect, and the master or his agent had promised to fix the machinery."
The usual charge in reference to contributory negligence was given, and the charge closed as follows: "If you find for defendant, so say by your verdict. As before stated, it, would not be negligence for the servant to remain in the employ of the master after the servant found out the machinery was defective, provided he notified the master, and the master or his agent promised to repair it. But if he knew the hand car was out of repair and did not report it to the master and continued to use it, then he can not recover, and you will find for defendant."
The giving of the charge first copied is assigned as error. Whether the plaintiff was guilty of contributory negligence was a question of fact for the jury, and it was not proper for the court in effect to declare that he was not so guilty if for a period of about six months he had known of the defect and continued to work with it, provided he had informed the master or an agent of the defect and promise had been made to repair it, which he knew had not been complied with. The court might as well, as the evidence stood, have charged the jury that the plaintiff was not guilty of contributory negligence. *Page 345
The court in effect further charged the jury that it was the duty of the appellant to furnish its servants with safe machinery, which was exacting too much. A railway company is bound to use a high degree of care in furnishing and in keeping in repair machinery which its servants are to use, but it is not bound to furnish machinery that is absolutely safe, and the charge given was calculated to induce the jury to believe that such a duty rested upon appellant in this case.
For the errors noticed, the judgment will be reversed and the cause remanded.
Reversed and remanded.
Delivered November 27, 1891.