Baxter

The action was on account of personal injuries claimed by plaintiff, an employee of appellant, to have been occasioned through appellant’s negligence. The complaint was filed on January 6, 1911. On February 1st following defendant Riverside Portland Cement Company filed its answer, in which it denied all of the allegations with reference to negligence and pleaded contributory negligence on the part of plaintiff. The cause came on for trial April 26, 1911. Before the jury was impaneled, defendant Riverside Portland Cement Company asked leave of the court to file an amendment to its answer, setting forth facts showing an assumption of risk. The court refused this leave and the cause proceeded to trial. After all of the evidence had been submitted, defendant again asked leave to amend its answer in the same manner as before proposed, in order that the pleadings might conform to the proof, and in connection with such request filed an affidavit to the effect that defendant did not know when it filed its original answer that the defense of assumption of risk was available, and did not learn the facts connected therewith until its attorney, on April 24th, saw a certain deposition of…