to remedy the defect, was very clearly evidence tending to rebut the presumption that the plaintiff, by continuing in the employment, assumed the increased risk by the defendant's neglect. In Hough v. Railway Co., before referred to, Mr. Justice Harlan, speaking for the court, quotes with approval from Shear. & R. Neg., sec. 96, as follows: "There can be no doubt that where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise, as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept." And he cites in support of the doctrine thus stated: Conroy v. Ironworks, 62 Mo., 35; Patterson v. Railroad Co., 76 Pa. St., 389; Le Clair v. Railroad Co,. 20 Minn. 9 (Gil. 1.) And, again, quoting from Cooley on Torts, he says: "If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurance removes all ground for the argument that the servant by continuing the employment engages to assume the risks." See, also, Greene v. Railway Co., supra. In this case the plaintiff called the attention of the superintendent to the defect, and made known his fears, and the superintendent in reply asserted his superior knowledge to that of the plaintiff, and assured him there was no danger, but promised to remedy the defect. In prosecuting such a work as the defendant was here conducting, persons are selected and employed with reference to the duties they are intrusted with. A superintendent is employed for his supposed superiority in ability, capacity and experience to the common laborers who are under his supervision; he is supposed to inspire their trust and confidence; they are accustomed to obey his orders, and to trust to his superior judgment. The representations and promises of this

superintendent were undoubtedly made to the plaintiff to induce him to continue his service, and dispel his fears. Is it unreasonable to suppose that it did so? We think not. We are of the opinion that it was for the jury to say whether the defective appliances and precautions were such that it was negligent for the plaintiff to continue the service; and if, under all the circumstances, considering the promise and conduct of the superintendent, the plaintiff was not wanting in due care and caution in continuing, then the defendant was not excused for the ommission to perform its duty.

some.

The appellant also complains of the refusal to give various of its requests to charge, and to the modifications of The charge given by the court was in accordance with the principles before stated. This court has held that it is not error to refuse to give instructions in themselves proper, in the language they are requested, if the court in its own language gives their substance. The requests, so far as they were proper, were substantially given; indeed, the substance of most of the defendant's requests was given. The change made by the court in the giving of defendant's third request, in view of other portions of the charge given, was immaterial. The defendant requested the court to charge as follows: "If you find that it was the the course pursued in this instance by the defendant to carry on the business of mining, while the walls and surroundings in the mine were unsafe and dangerous, and this fact was known to the plaintiff, and that he also knew the character of the dangers there existing, and yet entered upon and continued in said service, he assumed the risk of such dangers, and is not entitled to recover in this action." This the court did not give, but did instruct the jury that under substantially such circumstances the defendant would not be liable, unless there was an agreement to remedy the defect, and provide necessary and proper protection, and that the plaintiff, relying upon such promises, continued his work; and this was all the defendant could properly ask.

The appellant asks that the judgment be reversed because the damages were excessive, appearing to have been

given under the influence of passion or prejudice. The argument is that the trial court, having determined that the damages are excessive, it taints the whole verdict, and that none of it should stand. The practice which was pursued in this case is thoroughly established by precedent. 1 Suth. Dam. 813-815, and cases there cited. It is a supervision which courts exercise over verdicts for the protection of defendants in what are deemed to be proper cases, and if the rule is ever to be disturbed, it should be on the application of parties injured, and not those who are benefited by it. We are not pre pared to say that the damages, after the reduction, are excessive, in view of the severe character of the injuries. The discretion of the trial judge in this respect, who saw the plaintiff personally and heard the testimony of all the witnesses, ought not to be disturbed, unless it presents a plain case of the abuse of its exercise.

The judgment and order appealed from should be affirmed.

ZANE, C. J., and BOREMAN, J., concurred.

IN RE RUDGER CLAWSON.

CRIMINAL LAW.-COMMUTATION OF SENTENCE.-Petitioner was imprisoned upon a sentence rendered in the year 1884. He applied

to be released upon habeas corpus on the ground of a statute approved March 11, 1886, Laws of Utah, 1886, p. 6; held, that the right to discharge was controlled by statute in force at the time of sentence.

Mr. Jabez G. Sutherland and Mr. James O. Broadhead, for the petitioner.

Mr. George S. Peters, for the respondent.

BOREMAN, J.:

The petitioner is in prison on two charges-one being for polygamy, on which he was sentenced to three and a

half years in the penitentiary; and the other for unlawful cohabitation, on which he was sentenced to six months in the penitentiary. Both sentences were rendered on the third day of November, 1884. He claims to be entitled to his discharge from imprisonment by reason of deductions from his terms of imprisonment on account of good conduct. This claim is based upon both territorial and United States statutes. The territorial statute is section 3 of "An act to lessen the terms of sentence of convicts for good conduct," approved March 11, 1886, and found in the Utah Laws of 1886, p. 6. It is urged that this territorial statute is applicable by reason of the provisions in Rev. St. U. S., secs. 5543, 5544, and of 18 St. at Large, p. 479; the latter being a substitute for the above-named section 5543. These sections of the United States statutes provide that, where the territory has adopted any rules for lessening the terms of service for good conduct, such rules shall apply to United States prisoners. That is established as the general rule, therefore, applicable to United States prisoners. The territorial rule or statute which the petitioner asks to apply to his case was enacted subsequently to the day of sentence. At the time of the sentence there were territorial statutory rules upon the subject; but the statutes then existing have been since repealed, and the present ones adopted.

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As we look at the matter, the sentences were rendered in view of the rules then existing, and they thus, in effect, became a part of each sentence. Although such statutes have been repealed by the legislature of the territory, the acts of Congress referred to gave vitality to them, so far as sentences rendered during their existence were cerned. If we should allow the act of the legislature passed since the sentence to control, it in effect is to say that the legislature can, after judgment, nullify the judgment, and set the prisoner free. If the legislature can reduce the sentence at all, subsequent to the sentence, it can reduce it to an unlimited extent. This would be encroaching upon the authority of the executive, as it is the province of the executive, and not of the legislature, to reprieve or pardon. It would also be allowing the legislature to in

terfere with the judicial branch of the government, and to usurp its duties, and to make a sentence and judgment. different from that entered in court. We are borne out in our view by the case of Er parte Darling, 16 Nev., 98, and by the case of Com. v. Johnson, 42 Pa. St., 448.

The case of State v. Peters, 4 N. E. Rep., 81, was referred to as enunciating the contrary doctrine. The point was passed upon incidentally, but it was not necessary to a decision of the question in issue. That was not a case where the period of imprisonment was reduced by legislation subsequent to the sentence, but where, as a part of the prison regulations, the legislature, subsequent to the sentence, authorized the parol of the prisoner within certain enlarged limits. He still, however, was a prisoner, and subject to all the prison rules. The term of his sentence was not lessened, and the case was not analogous to the one at bar.

We do not think the prisoner is entitled to his discharge at present, as his right to a discharge is controlled by the territorial statutes in force at the time the sentences were rendered. He is therefore remanded to the custody of the United States marshal.

ZANE, C. J., and HENDERSON, J., concurred.