In re P., B. & W. R. R. Co.

Headnote

1. Continuance—Affidavit—Sufficiency.

An affidavit by a physician that an absent witness was too ill to appear, and that the physician himself was too ill to appear for examination as to the matter, is sufficient for continuance.

2. Continuance—Terms.

Where the affidavit submitted by defendant for continuance was sufficient, terms will not be imposed because plaintiff had in attendance a number of witnesses from out the state.

Action by Avis Dooley, against the Philadelphia, Baltimore & Washington Railroad Company. On application for continuance because of the absence of a material witness. Casé continued.

At the first trial term, counsel for the defendant asked for a continuance to the next term, and showed to the court the affidavit of the physician in attendance upon the absent witness at Seaford, who was a watchman at the crossing where the accident out of which the case arose occurred, wherein he saith the said witness is sick with rheumatism and that it is impossible for him to attend at the present term of court; also that he, the affiant, is himself too sick to appear in court to submit to an examination as to how badly the absent witness is sick. Counsel for plaintiff opposed the continuance on the ground that it was the duty of the affiant to appear, and if he could not appear there should have been an examination of the witness by another physician who could have appeared and testified as to the physical condition of the witness. It was also contended that the plaintiff had witnesses in attendance from a long distance out of the state, at considerable expense. And it was insisted that if the case should be continued terms should be imposed.