"Be it remembered that when the above styled and numbered cause was called for trial in the district court of Hamilton county on the 2d day of September, 1912, the plaintiff announced ready for trial, and the defendants Thompson & Scott announced not ready for trial, and thereupon presented to the court their application for a continuance; the same being their first application for a continuance, and the said term of court being the appearance term of court, in so far as the said defendants were concerned, and the said application being in words and figures substantially as follows:
"`P. J. Hart v. Stephenville North & South Texas Railway Company and Thompson & Scott. In the District Court of Hamilton County, Texas, September Term, 1912.
"`Now come the said defendants, Thompson & Scott, and say they are not ready for trial and cannot safely go to trial at this term of court, and for cause for an order granting them a continuance of this cause until the next term of court show: That upon the service of citation herein upon John P. Scott, a member of the defendant firm, in May of this year, the said defendants employed the firm of Goodson & Goodson, of Comanche, Tex., to represent them in the defense of this suit. Said defendants say that they are nonresidents of this state and reside in the city of St. Louis, and state of Missouri, where their principal office is situate; that not long since, by letter bearing date August 25, 1912, written by Mr. H. N. Goodson, the junior member of the firm of Goodson & Goodson, they were informed of the serious illness of the senior member of the firm, G. H. Goodson, and that on account of the same the said G. H. Goodson would be unable to represent these defendants in the trial of this cause, and further that the illness of the said G. H. Goodson was of so serious a nature that the younger member of the firm, H. N. Goodson, who was a son of said G. H. Goodson, would be unable to leave his father's bedside, and would be unable to be present at the trial of this case at this term of court, and that by reason thereof the said firm withdrew from the case and informed the said defendants that they would be compelled to get another attorney. Thereupon, as soon as they could and heretofore, to wit, on the 26th day of August, 1912, the said defendants employed one Harry P. Lawther, of Dallas, Tex., to represent them in the defense of this suit and turned over to the said Lawther all the facts in their possession relative to the nature of the accident and gave him the names of all the witnesses whose testimony would be material to their defense.
"`Said defendants further show that from the facts given to the said Lawther by the said defendants, and from the allegations in plaintiff's petition itself, it appears that one H. P. Cooper was the foreman in charge of the work at the time of the accident, and that it is charged that the accident and consequent injury to Roland Hart was due to his negligence. Said defendants show that the said H. P. Cooper is not now in their employ, and that they are informed and believe that he has since said accident and since he left their employ removed from the state of Texas and now resides in the town of Fairbanks, Ariz. Defendants say that since the employment by them of the said Lawther to defend this suit the time has been too short for them to propound interrogatories and take the depositions of the said Cooper; that the testimony of the said Cooper is material to their defense herein, and they cannot safely go to trial without the same; that they expect to prove by the said Cooper that on the day of the accident he was in charge of the work train on the Stephenville North & South Texas Railway, which was engaged in doing finishing work on said railway and was distributing ties off of a flat car on the train; that the train was moving along slowly at about five or six miles an hour; that he personally knew where the ties were needed, and himself was engaged in throwing the ties from the car; that he was ignorant that the said Roland Hart or any other employé was sitting upon the flat car upon which the ties were loaded; that the proper place for said employés to have been riding was in the tool car, and he had ordered them into the tool car before the train started and supposed they were there; that the tie which struck the said Roland Hart and inflicted the injury complained of was not thrown upon the said Hart by the said Cooper, nor was the said Hart struck by the same as it was thrown from the car, but that said tie, after it struck the ground, rebounded and struck the said Hart, inflicting the injury complained of; that such an occurrence was an unusual one, not expected by the said Cooper, was unforeseen by him and unexpected, and was purely an accident; that the said Cooper did not know, as aforesaid, that the said Hart was on the car or was sitting in any position where he could possibly have been injured until he heard the said Hart cry out after the accident.
"`Said defendants further show that another witness whose testimony is material to their defense herein, without which they cannot safely go to trial, is W. J. Cavanaugh, who was the conductor on the train at the time of the accident; that the said Cavanaugh is at present temporarily residing in the county of Grimes, in the state of Texas, and that since the employment of the said Lawther by the defendants, the time has been too short for him to propound interrogatories and obtain the deposition of the said Cavanaugh; that said defendants expect to prove by the said Cavanaugh that, as aforesaid, he was the conductor on the work train at the time the said Roland Hart was injured; that the said work train was engaged in distributing ties along the road-bed of the said Stephenville North & South Texas Railway wherever the same were needed in dressing the track; that before they started out the said Cooper, who was the foreman of the work, announced that they would distribute some ties along the track where they were needed, and that the manner of distributing the ties, to wit, throwing them from the flat car as the train moved slowly along, was well known to all the employés of the train and to the said Roland Hart; that the said Cavanaugh was standing beside the said Cooper when he threw off the tie, the collision with which by the said Roland Hart resulted in the injury complained of in plaintiff's petition; that when the said tie struck the ground, for some reason which to said witness appeared to be inexplicable and which was unforeseen and unexpected by him, the said tie rebounded and struck the said Roland Hart on the leg where he sat on the side of the car and near the rear end of the car; that said tie was not thrown against said Hart by the said Cooper, nor did the same strike the said Hart as it left the car, but, as before stated, after it struck the ground it rebounded and struck the said leg of the said Roland Hart; and that the same was an accident, pure and simple, and was not due to the fault or negligence of any one.
"`Defendants further say that another witness whose testimony is material to their defense, and without which they cannot safely go to trial at this term of court, is H. Tyson, and that they are in receipt of a letter from one J. F. Tyson, the father of said H. Tyson, dated August 20, 1912, stating that his son H. Tyson resided in Indian Creek, Tex. Said defendants show that they expect to prove by the said Tyson substantially the same facts as will be testified to by the said Cooper and Cavanaugh. Said defendants say that since the employment of the said Lawther the time has been too short for him to propound...
