(1) Known Defects. Notice. Continuation of Work. Assumed Risks. An employer was notified by plaintiff of a defect in a machine; receiving and relying on a promise that it should be repaired, he continued work thereon and was injured; on demurrer to a declaration setting forth these facts: — Held, that it is a question of fact whether plaintiff was excused from taking the risk of the employment after such promise. Held, further, that the answer to such question would depend on (1) whether the information was given to and the promise made by a fellow-workman; (2) whether the employer had had sufficient time to make the repairs; and (3) whether, knowing the danger, plaintiff proportionately increased his own care and precaution.
PER CURIAM.
The court is of opinion that the amended declaration sufficiently sets out the defect in the machine.
It also sets out that the plaintiff notified the defendant of the defect and received a promise that it should be repaired, relying on which he went on with his work. We cannot say, as a matter of law, that the plaintiff under these facts would be precluded from a recovery. It is a question of fact whether he can be regarded as excused from taking the risk of the employment after such a promise. This question would depend on whether the information was given simply to a fellow-servant or to the proper agent of the company, whether the promise was by such agent, whether reasonable time had gone by without the repair having been made, thus showing that the plaintiff was not relying on the promise, and further, whether, after knowing the danger, his own care and precautions were proportionately increased.