Appeal from District Court, Story County; C. G. Lee, Judge.
DEEMER, J.
Deceased was a young unmarried man about 19 years of age at the time of his demise. He was killed by a train operated on defendant's line of railway at a highway crossing in Story county, Iowa, at about 3 o'clock a. m. July, 1910. This crossing was about two miles and one-fourth, east of the town of Collins, in said county. Deceased had been working on a farm about two miles south of the crossing just prior to the accident. No one saw the accident, but deceased was driving a single horse to a light buggy, and was traveling eastward on a highway, which ran east and west. The train was also running a little north of east on the main line of defendant's road from Omaha to Chicago. The railway at this point runs nearly parallel with the highway, and the train, which struck the deceased, was an excursion one from Omaha. Something like 80 to 100 rods west of this crossing, on a road running north and south, there is an overhead bridge spanning the right of way, the railway track running under the bridge.
The following is a rough plat of the situation, which is not reduced to a scale, but shows, in a general way, the highway crossings and line of railway track, with a notation of the point of accident:
IMAGE
The alleged negligence upon which the case was submitted was that: “(1) Defendant was negligent in running its train at the time complained of at a high and excessive rate of speed. (2) Defendant was negligent in failing to signal its approach to the crossing by blowing the whistle. (3) Defendant was negligent in failing to signal its approach to the crossing by ringing the bell.”
As already stated, no one saw the accident, and the only direct testimony, with reference thereto, came from the engineer and fireman.
The engineer said: “I remember the night Earl Wilson was struck by the train. I was engineer; the train came through Collins, going east, at about 3:10 in the morning; it was an excursion train from Omaha as I remember. When we went over the crossing, I heard a crushing noise on the left side of the engine under the cab, and decided we must have struck something on the crossing, and so stopped. The boiler beam and cylinder and main reservoir under the cab and the steam pipe on the under side of the tank showed marks of being struck. The boiler beam stuck out 10 inches beyond the rail. There were marks on the north end of that, and marks on the cylinder on the left-hand side of the engine. The body was lying near the signpost in the highway. I noticed the horse; its right side was ripped open, and it was about 50 feet east of the boy's body.”
And the fireman said: “The accident occurred at about 3:10 in the morning. As we passed over the crossing I heard the engine strike something, and we stopped. I examined the engine to see whether there were any marks of how the accident occurred. I discovered marks upon the pilot beam and main reservoir, and under the cab window. As near as I can state, the marks looked as if something had struck against the post, and had been knocked up against the window, and made some scratches on the pane. It struck against the cab under the window, and there were also marks on the cylinder on the left side. His body was lying some ten feet from the signpost, still in the highway, and still in the buggy.”
The headlight of the engine was burning, and it is a little strange, we may here observe parenthetically if, as defendant contends, the train was in plain sight of the deceased for more than 660 feet, while he was on the highway, going east and west, that neither the engineer nor the fireman saw the deceased. On account of a curve made in the track, if there were no obstructions, the headlight of the engine must have swung around, if we are to adopt defendant's version of the affair, so that it covered the deceased and his horse for a good part of this 660 feet, and yet neither of the men in the engine saw the deceased. There is a dispute in the testimony as to whether or not the whistle was blown or the bell rung for the crossing, and these were questions for the jury.
There was also testimony from which a jury may have found that the train was running at a speed of from 50 to 55 miles per hour just prior to the collision. Appellant strenuously contends that under the record deceased was guilty of contributory negligence as a matter of law, and further assigns error on the instructions given and refused, and also upon certain rulings of the trial court in the rejection of testimony, and upon a motion for a continuance or postponement of the case.
2. The motion for continuance or postponement came at the close of defendant's testimony, at about 10 a. m. of the 19th day of January, 1912. Defendant had rested its case, save for one witness, and then made the following motion: “Upon the convening of the court on the morning of the 19th of January for the third day of the trial of this case the defendant calls the witness Charles Kahen for further cross-examination, and after the close of his testimony the defendant states that it has no other witness except Cora Cline; that said Cora Cline lives in Kansas City, Mo., and that her residence was not known to defendant until noon of the 18th day of January, 1912; that on Monday, the 15th day of January, and prior to the day the case was called for trial, and before the two jury cases which were tried before this case was reached for trial, the defendant began a diligent search to find the whereabouts of said witness; that the defendant telephoned to the father of said witness at Maxwell, Iowa, and was advised that said person was living at Des Moines, Iowa; that after investigation and search in Des Moines defendant learned that the said person lived in Kansas City, Mo., and at once communicated with parties in Kansas City to ascertain her whereabouts; that since this accident occurred in this case said witness had been married, and her present name was not known to defendant; that defendant at about noon January 18th located said person and secured her consent to come to Nevada, Iowa, and that she, as affiant is informed and believes, is now on her way to Nevada, and that she will reach Des Moines at about 10 or 10:20 o'clock, and will be able to leave Des Moines on the Northwestern at about 11 o'clock and reach Ames, Iowa, in time to be brought over from Ames with a team and be in the courtroom by half past 1 o'clock this afternoon; that a telephone message from Des Moines from T. F. Glynn and J. N. Hayes to affiant herein states that he has just been talking to said witnesses, who are at a station en route from Kansas City to Des Moines, and that she is coming to Des Moines on the train which will reach Des Moines at about 10 or 10:20; that the defendant has used all the means that it has had and all the diligence that it could exercise in ascertaining the whereabouts of said witness and in getting her to attend the trial of this case. Affiant further says that if said witness was present in court she would testify that she was acquainted with Earl Wilson, and had been keeping company with him for about one year prior to the date of the accident and his death; that she had frequently driven over the highway and crossing in controversy in this case, and upon which the said Earl Wilson was killed, in company with him, and that the night of his death she had gone over the said crossing with him at about half past 8 or 9 o'clock, going over said road and over said crossing; that said Earl Wilson took her to her home some 2 or 2 1/2 miles distant from the said crossing, and that he left her at about 2 o'clock a. m. on the morning of July 24th; that when he left her he had a buggy, and was driving back with one horse attached to same, and that it was a horse that had been driven by him while she was in his company on a number of occasions, and that the horse had appeared to be a gentle and trustworthy horse, and that the said Earl Wilson had the appearance of being asleep at the time he left her, and stated that he was sleepy and intended to sleep on his way home. Affiant further says that he knows of no other persons by whom said fact can be proven, and that he believes the same to be true. [Signed] John N. Hughes. [Duly sworn to.] Upon the facts stated in the above and foregoing affidavit which is made of record in this case, the defendant asks the court to grant a continuance of this case until 1:30 o'clock this afternoon in order to produce said witness.”
Thereupon the following record was made:
“Mr. McCall: All that you know about it is that Mr. Glynn telephoned to you that he had telephoned to her down the road somewheres, and that is what she says, and he says that is what she says she will testify to.
Mr. Hughes: What I know about it is this: That he called up from Kansas City at noon yesterday, and I answered the phone. Mr. Glynn's brother said to me that they had located the woman, naming her, and that she would come up here if we had time to get her up here for the trial. I told Mr. Glynn to look up the time tables, and see when he could get here. He looked it up, and said that he thought he could get here by 9 o'clock or by 8:30 this morning. So I sent him on down to Des Moines to meet...
