
    In re Application of P., B. & W. R. R. Co. for Continuance.
    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.
    
      (February 12, 1919.)
    
      Conrad and Heisel, J. J., sitting.
    
      Richard S. Rodney (of Saulsbury, Moms and Rodney) for plaintiff.
    
      Andrew C. Gray (of Ward, Gray and Neary) for defendant.
    Superior Court, New Castle County,
    February Term, 1919.
    Action on the case No. 75,
    September Term, 1918.
    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.
   Heisel, J:

Under the circumstances presented the court is of the opinion that a continuance should be granted. The affidavit of the physician as to the physical condition of the witness, and that he, the physician, was also too ill to appear for examination on the stand is sufficient to meet the requirements for a continuance. There is nothing out of the usual order in the application, excepting as to the number of witnesses present from out of the state. We will continue the case but decline to impose terms.  