The plaintiff' was a track repairer on defendant’s railroad. He -was injured by a train which struck him as he was engaged in mending a loose place where the ends of the rails joined. He brought suit for the injuries, and was nonsuited. He was not present at the trial, and in the absence of legal excuse for his non-attendance a motion by his counsel for a continuance was overruled. Three witnesses were introduced in his behalf, from whose testimony the following appears : The supervisor of that part of defendant’s road-bed told plaintiff to go^ *537to a place about a mile from where they were, and he would see a dangerous break in the rails; that he must hurry and get it repaired in time for the passenger-train, which would come in about an hour, to pass over it-safely; and that he must not try to flag down or stop the train, but must have the track fixed in time for it to pass over. Plaintiff went rapidly to the place indicated, and was seen striking the rail with his sledgehammer. He was working rapidly and excitedly, and when spoken to by a witness, answered that he did not have time to talk, as he was fixing a dangerous break, and had to get it fixed in time' for the train which was due there in a short while. He was standing with his back in the direction from which the train was coming. Soon it was seen approaching at its usual speed of thirty or forty miles an hour. When it was about two hundred yards off, plaintiff turned his head and looked towards it without moving his feet, jerked off his hat and waved it two or three times at the train, and immediately resumed striking the rail with his hammer as fast as possible. A witness cried to him to look out, and just then the train struck him. The whistle was not-blown nor the bell rung nor speed slackened until the train struck him, when the whistle blew and the train,, after going some distance further, backed to the place, and plaintiff was taken aboard and carried away. The track was straight for half a mile back; there was nothing to prevent him from seeing the train, nor to prevent-the engineer from seeing him. There was nothing to prevent him from getting off the track sooner, but (a witness testified) if he had done so and left the track as-it was, it would certainly have ditched and wrecked the train, etc.