114 SUPREM E COURT OF THE CANAL ZONE.

had no means of foreseeing or preventing by the employment of ordinary care and competent authority.
The plaintiff demurred to said answer for the reason that the same did not state -facts sufficient to Constitute a defense to the action. The court sustained the demurrer as to paragraph 5 of the answer, and also to paragraph 4, except in so far as paragraph 4 of the answer alleged contributory negligence on the part of the plaintiff.
Thereafter, on September 29, 1911, the defendant filed its amended answer, wherein it again set forth substantially the same allegations as those contained in paragraphs 4 and 5 of the original answer, to which a demurrer had been sustained, and, in addition thereto, alleged as follows:
Defendant further says that 'in said collision a brakeman on the locomotive of said special train was killed, and that in so far as the negligence of defendant's employees and servants contributed to the homicide of said brakeman, the same was a violation of the penal laws of the Canal Zone.
The amended answer also alleged more specifically contributory negligence on the part of plaintiff in failing to observe the absence of lights or signals on the train of Falkner which would indicate that it had to return for the broken portion of the train.
The defendant moved to strike the said amended answer from the files, and for judgment, and the court sustained the motion to the extent of striking from the amended answer the portions thereof that were substantially the same as those set forth in paragraphs 4 and 5 of the original answer, and also the part relating to the killing of the brakeman upon the said special train. To all of these rulings the defendant duly excepted, and the exceptions to these rulings are embraced in the appellant's first and second assignments of error herein.
Notwithstanding the action of the court in sustaining the demurrer to the original answer, and in striking out the said portions of the amended answer, the defendant, upon the trial of the cause in the Second Judicial Circuit, attempted to prove by J. A. Smith, the General Superintendent of the defendant company, that engineer* Falkner in charge of engine No. 658 (which collided with the train on which the defendant was riding at the time in question) had stood an examination as engineer, but the court refused to permit the witness, J. A. Smith, to testify regarding the qual ificat ions of said Falkner. This ruling was duly excepted to, and the exception is embraced in appellant's third ass.igrnment of error herein.

114