Hadden v. Cherokee Sawmill Co.

Hell, C. J.

The petition alleged that a servant discovered a defect in the machinery which he was using, and called the master’s attention to the defect, and the master promised to repair it, and the servant, relying upon the promise, continued to use the defective machinery. Held: (1) It was the master’s duty to exercise diligence in making the necessary repairs. (3) Whether the servant was guilty of contributory negligence in continuing his work with the defective machinery, rely-1,1 ' ing upon the master’s promise to repair, was a question of fact for the jury, to be determined according to the evidence as to the serious character of the defect, and the danger, obvious or otherwise, in continuing to use it in its defective condition, and also the delay of the master in complying with his promise to repair. Shue v. Central Ry. Co., 6 Ca. App. 714 (65 S. E. 697) ; Cheeney v. Ocean Steamship Co., 92 Ca. 726 (19 S. E. 33, 44 Am. St. R. 113); 9 Rose’s Notes on U. S. Reports, 814, 815. The court erred in dismissing the petition on demurrer.

Judgment reversed.

Shipp & Kline, for plaintiff. Roscoe Luke, Louis Moore, Little & Powell, for defendant.