The opinion
On Motion to Strike Out Amended Bill of Exceptions.
[ 102 Pac. 175 .]
Per Curiam :
5. This is a motion to strike from the files an amended bill of exceptions. After the cause was argued and submitted, but before an opinion had been written, or a decision rendered herein, the trial court, upon application therefor, and notice thereof to the adverse party, made at a subsequent term a nunc pro tunc order, changing in some particulars ah instruction set out in the original bill of exceptions, so as to make the alteration correspond with that part of the charge as it was given to the jury. The right of a trial court to make such an alteration, though denied in some other states, is settled *216 in Oregon (State ex rel. v. Estes, 84 Or. 196 , 204 [ 51 Pac. 77 : 52 Pac. 571 : 55 Pac. 25 ]; Bloch v. Sammons, 37 Or. 600 [ 55 Pac. 438 : 62 Pac. 290 ]), provided the amendment is duly made, properly certified, and filed in this court before a decision on the merits has been rendered in the cause (State v. Jennings, 48 Or. 483, 493 [ 87 Pac. 524 : 89 Pac. 421 ] ).
Decided July 13, 1909.
Statement by Mr. Justice King.
This is an action by James Ferrari, a minor, by his guardian, against the Beaver Hill Coal Company and Daniel Maher, one of its employees, for damages arising from an injury received while in its employ.
Plaintiff at the time of the injury was engaged in the occupation of what is termed a “trip rider” or “rope rider,” on the surface incline of the mine of the defendant company, and his duties consisted in taking cars up and down the incline trestle leading from the yard at the mouth of the mine, to the platform at the head of the incline, and just above what is called the “bunkers and washers,” into which the coal is dumped from the cars. The incline or trestle was about 250 feet long and rose at an angle of about 30 degrees from the horizontal, the top of which was about five feet in width, and in some places 30 feet or more from the ground. The cars were lifted from the track below the platform by means of a hoisting apparatus, consisting of an engine, drum, and cable, operated by steam power when used to bring loaded cars up the incline, but which was allowed to run loose when cars were lowered to the surface tracks beneath, except loaded cars were drawn up the incline, when steam power was used. Plaintiff in the regular performance of his duties, would attach the cable to the head car of a string or train of cars loaded with coal, mount them, signal the engineer in charge of the hoisting engine to pull the same up the incline, and ride upon them to the platform above the bunkers, at which point it was his duty to detach the cable from the cars, and attach the same to the rear of the string or train of empty cars, which would then be lowered on the incline to the yard. In lowering the cars, except when operated by steam power, the drum is entirely controlled by a brake,' consisting of two wooden blocks with shoes set against the flanges on the outside of the drum, and operated by a foot lever. The engine is reversible, and the cars without much inconvenience can be let down by steam, but this was not the method used in lowering them. When the cars were discovered to be defective, they were set out on the side track on the bunker platform, and from time to time lowered to a point near the foot of the incline, where they were switched onto a track leading to the carpenter or repair shop, and it was a part of plaintiff’s duties to have charge of the defective cars when sent to the shop for repair.
*216 The amended bill of exceptions having been prepared, authenticated, and sent up according to the manner, and within the time indicated, the motion is denied.
Motion Denied.