Gay v. Haggard, Road Supervisor, 133 Ky., 435, is not controlling in this case, for the reason that it was a case of the ordinary work and repairs of the public roads under section 4315 of the Statutes above quoted, while the case at bar does not, as we have pointed out, come within the scope of that section of the statutes. We concur in the conclusion reached by the circuit judge, that section 4315, which is the only section of the statutes which calls for competitive bids in making contracts for work on the public roads, does not apply to this case, and his judgment, sustaining the demurrer to the petition, is affirmed. 1 Pittsburg, Cincinnati, Chicago & St. Louis Railway Co.and Pennsylvania Railroad Co. v. Grom. (Decided February 2, 1911.) Appeal from Jefferson Circuit Court Passenger-Personal Injury-Conflict of Laws.-In an action for 2. Pennsylvania-Law of-Instructons.-The law of Pennsylvania stated, and an instruction examined, and held properly to present the law of the State. 3. Surprise-Continuance.-A continuance on the ground of surprise should not be granted where counsel might have reasonably an ticipated the ground of plaintiff's recovery, and by reasonable diligence have taken the depositions of witnesses, or had them present, to show facts tending to overcome plaintiff's theory of the case. CHARLES H. GIBSON for appellants. EDWARDS, OGDEN & PEAK for appellee. OPINION OF THE COURT BY WM. ROGERS CLAY, COMMISSIONER-Affirming. Appellee, William Grom, brought this action against the appellants, Pittsburg, Cincinnati, Chicago & St. Louis Railway Company and Pennsylvania Railroad Company, to recover damages in the sum of $1,999 for personal injuries, alleged to have been due to the negligence of the railroad companies while he was a passenger on their lines of railroad. The jury awarded him a verdict for the full amount sued for, and the defendants have appealed. The facts, briefly stated, are as follows: Appellee bought a ticket from Louisville to Atlantic City and return. The accident occurred between Pittsburg and Altoona, in the State of Pennsylvania. At the time of the accident appellee was sitting in the middle of the sixth seat from the front end of the car. He was struck by some hard and heavy substance over the left eye. The frontal bone was fractured and his eye so seriously injured that the sight thereof is permanently impaired. At the time of the accident a freight train was passing. Just before and after the injury, witnesses heard something rattling against the side of the car. It sounded like a chain. Indentations were found on the side of the car which looked as if they had been made by an irregular object in the form of a chain. One of the witnesses saw the passing shadow of the object that struck appellee, and it looked like a chain. Immediately after the injury several persons searched the car, and nothing was found therein which could have caused the injury. Appellant's testimony was to the effect that on the freight trains ordinarily used there are no chains in a position to be swung out so as to strike or enter a train on an adjacent track, and, even if there were such, they would hang by the side of the car by reason of their own weight, and would not swing out from the car by reason of the velocity of the train. The witnesses, however, had no knowledge of the condition of the particular train in question and they admit, on cross-examination, that there were numerous chains in and about freight cars. The following errors are assigned: 1. The failure of the trial court to award the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company a peremptory instruction. 2. The refusal of the court to grant both appellants a continuance on the ground of surprise. 3. The failure of the court properly to instruct the jury under the law of Pennsylvania. These grounds for reversal will be considered in their order. In the original petition the only defendant was the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. After alleging that that company was a corporation, and that appellee was a resident of Jefferson county, Kentucky, and had purchased a ticket over its line of railway from Louisville to Atlantic City and return, he charged that by virtue of the ticket so purchased the defendant contracted to carry him in safety over its lines of railroad from the city of Louisville to Atlantic City, and that while the train on which he was a passenger, occupying a seat in one of defendant's coaches, running through the state of Pennsylvania, another train belonging to and operated by defendant, on one of its tracks near to and parallel with the track on which the train on which appellee was a passenger, was running past said. train, some hard and heavy substance or object, through the gross carelessness and negligence of defendant was hurled and thrown with great violence against him, striking him in the head and face, breaking the bones of his face and head, and severely injuring one of his eyes, thereby causing him to suffer great physical pain and anguish, and permanently impairing and destroying the use and sight of his eye. To the petition the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company filed an answer denying the allegations of the petition. Thereupon appellee amended his petition and made the Pennsylvania Railroad Company a party defendant, charging that the two railriad companies were under the same management and control, and operated by the same railway system. The Pennsylvania Railroad Company then filed an answer denying the allegations of the original petition, and later on the two railroad companies filed a joint answer denying the allegations of the amended petition. Thereafter the railroad companies filed an amended answer, wherein they pleaded that their liability was governed and controlled by the laws of the State of Pennsylvania, and set out in general terms the laws of that State. This amended answer also contained an allegation to the effect that when appellee was injured he was in the State of Pennsylvania, and was a passenger on a train of the Pennsylvania Railroad Company, he having been safely carried by its co-defendant, the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, over its railway so far as it was necessary for it to perform its part of the contract. Because of this latter allegation, which was not denied, and because the record contains no proof to the contrary, it is insisted that the court erred in not directing the jury peremptorily to find for the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Inasmuch, however, as that company had already denied that appellee, at the time of the injury, was a passenger on one of its trains, and that it had con tracted to carry him safely from Louisville to Atlantic City and return, it is manifest that the allegation in the amended answer, to the effect that he had been carried safely over its line as far as it was necessary for it to perform its part of the contract, was merely an affirmative denial. The failure of appellee to traverse this allegation in his reply was not, therefore, such an admission of the fact as to authorize the court on the face of the pleadings to grant a peremptory instruction. The question, then, is whether or not there was any evidence which justified the submission of the case as to the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. The record contains no evidence tending to show that the two appellants are not under the same control and management, or that the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company did not undertake to carry appellee over its lines in Pennsylvania, or that its lines did not run east of Pittsburg. We find, however, from the record that the ticket which appellee purchased in Louisville, Kentucky, was introduced in evidence and exhibited to the jury. We also find that the deposition of one of the witnesses for appellee is not in the record. In the absence of a bill of exceptions containing all the evidence, we must conclude that there was sufficient evidence not only to authorize the submission of the case to the jury, but to sustain the judgment. At the conclusion of the evidence for appellee, appellants' senior counsel filed his affidavit and moved for a continuance on the ground of surprise. In this affidavit counsel stated, in substance, that he had had sole charge of the defense of the action that was being tried; that theretofore he had made a most thorough investigation of the facts of the case and had had submitted to him. full reports made by the agents of appellants as to all facts connected with the injury. He had never heard until the day before the trial that any attempt would be made to show that appellee was struck by a chain, when he was then informed in a general way by appellee's counsel that he would show that fact. In all the investigations made and in the reports submitted to him, it had never been suggested that the accident could have happened in that way. He was, therefore, taken completely by surprise, as were the appellants, by the evidence introduced by appellee, and he was not then prepared to rebut such evidence. He had taken the deposition of the train conductor, but did not ask him about a chain, because he had never heard it suggested or thought it possible that a chain could have had anything to do with the accident. If allowed an opportunity to do so he could and would procure testimony of witnesses-all residing in the State of Pennsylvania-which would prove (1) that there were no marks on the car on which appellee was injured indicating that it had recently been struck by anything; (2) that all the persons who were in the coach and near appellee were asked by the conductor and brakeman as to the cause of the accident, and none of them could give any explanation of it, and none of them said anything about hearing a chain or seeing a chain, and none of them suggested that a chain had anything to do with the accident; (3) that at the time there were no chains upon or attached to appellants' engine or cars, or forming any part of the equipment thereof that were long enough to reach into the window of a passenger coach on an adjacent track and strike a passenger, as appellee was struck; (4) that all chains connected with such equipment were, however, short chains, and in the event of their breaking they would drag on the ground, and could not swing out in a horizontal position so as to come in contact with a train on an adjacent track; that such a thing is a physical impossibility; (5) that "shortly after the accident to plaintiff the conductor caused telegraphic notice to be given of it and instructions were immediately given to inspect all west-bound freight trains that had met plaintiff's train to see if anything was attached to or projected from them that could have caused the accident, and such investigation was made and nothing found to explain the cause of the accident;" that these facts could be established by the testimony of several witnesses (naming them) and could not be established by any witnesses living in the State of Kentucky. Did not anticipate, nor did the railroad companies anticipate, and no one could reasonably have anticipated, that appellee would attempt to prove that his injuries were caused in such an unusual or unheard-of manner as being struck by a chain. If the railroad companies had known in time that such proof would be offered, they could and would have met it by showing facts to the contrary. The foregoing affidavit was not filed until appellants' motion for a peremptory instruction, at the conclusion of appellee's evidence, has been overruled. Before asking for a continuance on the ground of surprise, therefore, counsel for appellants first took the chance of appel |