Moller

The defendant in error, Moller, a laborer with a track-laying gang, was injured while returning from work upon a work train belonging to the railroad company. The car upon which Moller rode was a “home-made affair,” of light weight, and with a standard flat car behind was being pushed by the engine. The track was new; the rails having been laid but a week before, without artificial grade. The train was running about 20 miles an hour. There was a sag, and as the car was pushed up it jumped the track, the cars piled up, and Moller was hurt. The defendant corporation denied allegations of excessive speed, denied any negligence, and pleaded assumption of risk and contributory negligence. Defendant rested upon a motion for nonsuit. The motion was overruled, the jury was instructed, and verdict rendered for plaintiff. Writ of error was brought.

*744 The railroad company contends that the court erred in denying its motion for a postponement of the trial of the case. Our inquiry is solely whether or not there was an abuse of judicial discretion. The affidavit with the motion for a continuance was made on May 27, 1918, by one of the attorneys for the railroad company. It set forth that…