Opposition Brief — Clark v. C & O Railway Co.

\ Supremes Court, U.S.

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FEB 16 1989

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(38 CLERK

IN THE | 3

Suprene Court of the Huited States

OCTOBER TERM, 1988

GARY R. CLARK,

- Petitioner,

THE CHESAPEAKE AND OHIO RAILWAY COMPANY,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

BRIEF IN OPPOSITION

JOHN F. Kay, JR.

Counsel of Record

RUSSELL V. PALMORE, JR.

SUSAN C. ARMSTRONG

LINDA J. THOMASON

MAyYs & VALENTINE

Post Office Box 1122

Richmond, Virginia 23208

(804) 697-1200

Counsel for Respondent

The Chesapeake and Ohio

Railway Company

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTIONS PRESENTED

1. Whether in a case arising under the Federal Em-

ployers’ Liability Act evidence of damage caused by a

flood and the railroad’s subsequent efforts to repair such

damage was properly admitted by the trial court when

liability for an employee’s injuries depends on whether

the railroad exercised reasonable care under the circum-

stances.

2. Whether in a case arising under the Federal Em-

ployers’ Liability Act the trial court erred in refusing to

instruct the jury that petitioner was not contributorily

negligent after making such a ruling in chambers.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED .....2......22..20...-....ccccccccsecencrsese

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STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

I. The Petition Presents No Important Question

Warranting This Court’s Review .............—.......-.-

II. The Trial Court Correctly Admitted Evidence

of Flood Damage

III. The Trial Court Correctly Refused to Instruct

the Jury That the Petitioner Was Not Negligent

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CONCLUSION

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APPENDIX A

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APPENDIX B

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Page

iv

TABLE OF AUTHORITIES

Page

Chesapeake & Ohio Railway Co. v. Kelly, 241 U.S.

Ce ores. Shen one onrom 4

Delaware, L. & W.R. Co. v. Koske, 279 U.S. 7

Ut SE ,ccinssalsesss<cudensonsevsensibabsieptotneninsenaupidieabeipdaasanbiiamainishcatichi 5

Feigl v. Terminal R. Ass’n, 30 Ill. App. 3d 55, 332

Be ee TE scecersahcseicesbinteniiieiadibaenitgtiataiiaditaditieuimtins 7

Higgins v. Whitemore, 116 Va. 414, 825 S.E. 180

I sdccsnsicesitnsctceticabsicannineianticeibsatelidbohingeteibunenrcnaieaitiines 4

Kirby v. Moehlman, 182 Va. 876, 305 S.E.2d 548

< — | Fea RSE eneee else ai am 4

Lavender v. Kurn, 327 U.S. 645 (1946) ................... 4

Levine v. Lynchburg, 156 Va. 1007, 159 S.E. 95

SE RY eG SSPE EP SEE 0 CS ea 4

McGivern v. Northern P.R. Co., 182 F.2d 213 (8th

I IEEE -cccecescsapta cs soacahaas cibesapteaienstcammbniaineelns sales ih 5

Missouri P.R. Co. v. Aeby, 275 U.S. 426 (1928) ...... 5

Rogers v. Missouri P.R. Co., 352 U.S. 500 (1957)... 6,7

Smith v. Chesapeake & Ohio Railway Co., 778 F.2d

Se ee RG: SII a 2, sos coottc cert cdnnmehamcdlstosshnaaninabeabnice 4

United States v. Johnston, 268 U.S. 220 (1925)...... 4

STATUTES

ST i sii ia oleh depldemtpddaaaannpntabaoanebialabits 3

RAINES Ra LO ND BAC RNs PC ON 7

RULES

SEI ce IE cc ten led rm 4

OTHER AUTHORITIES

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IN THE

Siyreme Court of the United States

OCTOBER TERM, 1988

No. 88-1175

GARY R. CLARK,

¥ Petitioner,

THE CHESAPEAKE AND OHIO RAILWAY COMPANY,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

BRIEF IN OPPOSITION

Respondent The Chesapeake and Ohio Railway Com-

pany (the “C & O”), respectfully submits this brief in

opposition to the petition for a writ of certiorari to re-

view the decision of the Supreme Court of Virginia. For

the reasons set forth below, the petition should be denied.

STATEMENT OF THE CASE

Petitioner’s statement of the case is generally satis-

factory. However, the C&O will correct one inaccurate

statement and will elaborate upon the circumstances that

prevailed after the flood.

In the first paragraph of petitioner’s statement of the

ease, he states that during trial he objected to the intro-

duction of evidence regarding a flood, “which occurred

2

on November 4, 1984 . . . since the injury to Clark did

not occur until January 14, 1986 and was not relevant

to the case.” Petition at 6. The flood referred to by

petitioner occurred on November 4, 1985, slightly more

than two months before petitioner’s alleged injury rather

than fourteen months, as petitioner’s statement implies.

Petitioner again incorrectly identifies the date of the

flood in the argument portion of his petition. See Peti-

tion at 18. The other references in the petition to the

date of the flood are correct. See Petition at 1, 14.

Petitioner’s discussion of the video introduced into evi-

dence and of the flood damage at the site of his alleged

injury requires amplification. One hundred nine miles of

track bounded by Clifton Forge, Virginia, on the west

and Gladstone, Virginia, on the east is known as the

James River Subdivision. As its name implies, the sub-

division follows the course of the James River and when

the river flooded on November 4, 1985, track throughout

the entire subdivision was submerged. Some areas of

track were totally destroyed and had to be completely

rebuilt. Other areas suffered minor damage and only re-

quired minimal clean-up efforts. Approximately ninety

percent of the power switches—those designed to be op-

erated electrically—had been submerged and had to be

flushed out before they could be operated even manually.

Appendix (“‘App.’’) at 2a-7a.

Petitioner’s alleged accident occurred when he at-

tempted to throw manually the Tyree power switch, which

is within the city limits of Lynchburg. App. at 8a.

Lynchburg and the area east of Lynchburg was heavily

damaged by the flood. App. at 2a-6a. At the Tyree switch

though, the damage was very minor. App. at 7a.

A video taken by a local television station was intro-

duced into evidence over petitioner’s objection. It showed

the flood’s damage to track in Lynchburg and other areas

of the subdivision. Neil Frost, the C&O roadmaster for

3

the James River Subdivision, testified that the video was

representative of the damage throughout the subdivision,

though some areas were hit harder than those depicted

in the video. App. at 3a-4a. Frost described the damage

caused by the flood and the mammoth restoration effort

that was undertaken to put the subdivision back in oper-

ation. Frost testified that the subdivision did not ap-

proach pre-flood operating capacity until mid to late March,

1986. App. at 5a. Robert Smith, the C & O Signal

Supervisor, testified that the Tyree switch could not be

operated electrically until February 19, 1986. App.

at 9a.

REASONS FOR DENYING THE WRIT

I. The Petition Presents No Important Question War-

ranting This Court’s Review.

This case does not merit review by the Supreme Court

of the United States. The petition presents no important

or novel question; nor does it demonstrate any conflict

with opinions of this Court or with the decision of an-

other state court of last resort. Rather, the questions

presented involve purely discretionary rulings that the

Supreme Court of Virginia has already been found to be

free of reversible error. See Petitioner’s Appendix (“‘Pet.

App.”) at xlvii-xlviii.

Petitioner has failed to provide this Court with any

compelling reason for granting his petition for certiorari.

Instead, petitioner merely asserts that the courts below

“did not follow the law of the Federal Employers’ Lia-

bility Act and its interpretation by the Supreme Court of

the United States and by other Federal Courts and State

Courts.” Petition at 18. Petitioner, however, does not

cite a single case dealing with the questions presented for

review: the admissibility of evidence or the propriety of

jury instructions in a case arising under the Federal Em-

ployers’ Liability Act, 45 U.S.C. § 51 et seq (“FELA”).

&

Le

4

Petitioner’s failure to set forth any special or important

reason for this Court to exercise its extraordinary dis-

cretionary review powers is sufficient grounds for denial

of the petition. See S.Ct. R. 17.1.

Moreover, the challenged rulings of the trial court re-

late to matters that were fact-specific and within the

discretion of the trial court. Such rulings are entitled to

great weight and are wholly inappropriate for review by

certiorari. This Court has so ruled: “We do not grant a

certiorari to review evidence and discuss specific facts.”

United States v. Johnston, 268 U.S. 220, 227 (1925).

In FELA cases, rulings on admissibility of evidence

are left to the sound discretion of the trial judge and will

not be disturbed absent abuse of that discretion. Laven-

der v. Kurn, 327 U.S. 645, 654 (1946). Review by this

Court of the first question presented would require a

painstaking evaluation of the disputed evidence in light

of all the evidence to determine whether its probative

value outweighed the disadvantages, if any, arising from

its admission. See Levine v. Lynchburg, 156 Va. 1007,

1014, 159 S.E. 95, 98 (1931). Likewise, to review the

trial court’s refusal of petitioner’s contributory negli-

gence instruction, this Court necessarily would be re-

quired to examine the jury instructions as a whole in the

context of all the evidence and arguments presented to

determine if the law of the case was fairly submitted to

the jury. See Kirby v. Moehlman, 182 Va. 876, 886 30

S.E.2d 548, 551 (1944) (quoting Higgins v. Whitemore,

116 Va. 414, 423, 825 S.E. 180, 183 (1914)); cf. Smith

v. Chesapeake & O.R. Co., 778 F.2d 384, 388-89 (7th Cir.

1985).

1This Court has recognized that questions regarding admissibil-

ity of evidence in FELA cases adjudicated in state court constitute

matters of practice and procedure to be governed by State rules.

Chesapeake & O.R. Co. v. Kelly, 241 U.S. 485, 491 (1916); see also

Annot., 79 A.L.R.2d 553, 583 (1961).

5

In denying petitioner’s petition for appeal and subse-

quent petition for rehearing, the Supreme Court of Vir-

ginia necessarily recognized that no reversible error

existed requiring the exercise of its discretionary juris-

diction to review the trial court’s rulings. In effect, peti-

tioner now asks this Court to afford him yet another re-

view of fact-specific matters already resolved in favor of

the C & O—twice by the trial court and twice by the

Supreme Court of Virginia. Because the petition raises

no issue of overall importance, further review by this

Court is not warranted and the petition should be denied.

II. The Trial Court Correctly Admitted Evidence of Flood

Damage.

Petitioner alleges that he suffered soft tissue injuries

to his back while manually throwing a switch that was

designed to be operated electrically except in emergencies

or unusual circumstances. It was undisputed that elec-

trical switches, when operated manually, are more diffi-

cult to throw than manual switches. The switch involved

was submerged during the November 4, 1985 flood and,

like all switches affected by the flood, had to be operated

manually while repairs to restore electrical service were

made.

Petitioner argues that the trial court should have ex-

cluded evidence regarding the massive flood that exten-

sively damaged railroad property. This argument simply

takes issue with the trial court’s discretionary ruling that

the evidence was relevant; it does not justify issuance of

a writ of certiorari. In any event, the trial court’s ruling

was correct.

In this FELA action, the question is whether the rail-

road exercised reasonable care under the circumstances

as they existed at the time of injury. See Delaware, L.

& W.R. Co. v. Koske, 279 U.S. 7 (1929); Missouri P.R.

Co. v. Aeby, 275 U.S. 426 —— (1928); see also Mc-

Givern v Northern P.R. Co., 1382 F.2d 213 (8th Cir.

6

1942). In making that determination, the fact finder

must consider evidence of the particular circumstances

involved. In the present case, evidence of damage caused

by a devastating flood which occurred little more than

two months before the accident, crippling miles of track

and requiring months of work to restore service to the

system, is clearly relevant. The switch that allegedly

caused petitioner’s injury was one of the flood’s minor

casualties and petitioner, as well as other railroad em-

ployees, had to operate it, and all other switches on the

subdivision, manually rather than electrically on the day

petitioner was injured and for weeks thereafter. The

C & O was entitled to show the jury the extent of the

flood damage and of its restoration efforts so that the

jury could decide whether the C & O had exercised rea-

sonable care under the circumstances.

Moreover, as petitioner correctly observes, courts take

great pains not to intrude upon the role of a jury in de-

termining questions of negligence in FELA cases. See

Rogers v. Missouri P.R. Co., 352 U.S. 500 (1937). This

is precisely what the trial court did in permitting the

jury to hear and evaluate the relevant evidence of flood

damage in determining whether the C & O was negligent.

Like the Supreme Court of Virginia, this Court should

decline to review this discretionary ruling of the trial

court.

III. The Trial Court Correctly Refused to Instruct the

Jury That the Petitioner Was Not Negligent as a

Matter of Law.

Upon ruling that the C & O had not presented suffi-

cient evidence of petitioner’s contributory negligence, the

trial court refused the C & O’s proposed jury instruc-

tion on that issue. See Pet. App. at xxviii-xxx. It also

refused to instruct the jury that petitioner was free of

negligence. Pet. App. at xxx. Refusal of petitioner’s pro-

posed instruction was correct for one of two reasons.

7

First, if the trial court was correct in striking the C &

O’s contributory negligence defense, then petitioner’s

negligence, or lack thereof, was no longer an issue and

the refusal to instruct the jury on such a non-issue was

proper. Conversely, if, as the C & O contends, the trial

court erroneously struck the C & O’s contributory negli-

gence defense, then the instruction petitioner requested

was likewise unwarranted, and the contributory negli-

gence issue should have been submitted to the jury.

Assuming arguendo that the trial court should have

given petitioner’s contributory negligence instruction, its

refusal to do so was harmless. As this Court has stated,

and as the jury was instructed, liability under the FELA

depends on whether “employer negligence piayed any

part, even the slightest, in producing the injury or death

from which damages are sought.” Rogers v. Missouri

P.R. Co., 352 U.S. 500, 506 (1957). Under the FELA,

contributory negligence only affects the amount of dam-

ages awarded, if any, and has no effect upon liability

issues. See 45 U.S.C. § 53. The jury’s verdict for the

C & O necessarily established that it found no evidence of

C & O negligence and, therefore, no C & O liability. Ac-

cordingly, the jury never reached the issue of damages

or the question of reducing the damages awarded to peti-

tioner due to his contributory negligence. Thus, the trial

court’s refusal to instruct the jury that petitioner was

free from negligence could not have prejudiced petitioner.

See Feigl v. Terminal R. Asso., 30 Ill. App. 3d 55, 332

N.E.2d 416 (1975).

8

CONCLUSION

For the reasons stated above, the petition should be

denied.

Respectfully submitted,

JOHN F. KAY, JR.

Counsel of Record

RUSSELL V. PALMORE, JR,

SUSAN C. ARMSTRONG

LINDA J. THOMASON

MAys & VALENTINE

Post Office Box 1122

Richmond, Virginia 23208

(804) 697-1200

Counsel for Respondent

The Chesapeake and Ohio

Railway Company

———

APPENDICES

la

APPENDIX A

IN THE CIRCUIT COURT

OF THE CITY OF PORTSMOUTH

VIRGINIA

At Law No. L86-415

GARY R. CLARK,

Plaintiff,

Vs.

C&O RAILWAY COMPANY,

Defendant.

EXCERPTS FROM

TRANSCRIPT OF PROCEEDINGS

May 15, 1987—10:00 a.m.

Portsmouth, Virginia

TAKEN BEFORE:

The Honorable L. Cleaves Manning,

Judge, and Jury

APPEARANCES:

Moody, Strople & Lawrence

By: Randall E. Appleton, Esquire

and C. Gerard Thompson, Esquire

Counsel for the Plaintiff

Mays & Valentine

By: Susan C. Armstrong, Esquire

and Russell V. Palmore, Jr., Esquire

Counsel for the Defendant

2a

REPORTED BY:

Susan L. Pillow, RPR, CSR, CM

* - 2 *

NEIL FROST—DIRECT

[170] Q And for what part of the James River sub-

division are you roadmaster?

A Well, I’m roadmaster over the whole James River

subdivision.

Q And how long is the James River subdivision in

terms of trackage?

[171] Neil Frost—Direct

A It goes from mile post 120 to mile post 229.4,

which is 109.4 miles.

Q And that would be roughly between what two

points on the map?

A Between Gladstone, Virginia and Clifton Forge,

Virginia.

[176] Q What other conditions do you recall that you

personally inspected following the flood?

A Well, on Thursday, I went to Lynchburg to get the

line open between downtown Lynchburg, which is about

mile post 145, to mile post 120. That was my assigned

section. And I had thirty or so people; and in assessing

the damage as to what would be the best way to open the

line, I—we first—we knew how to go from Lynchburg,

east, so we started at that point inspecting, patrolling,

walking the track. We took in loaders and tried to push

debris off the track.

Q What kind of debris did you find on the track?

A There was huge piles of ties, tie butts, which are

little chunks of ties that we—they end up as short pieces

when we take them out of the track. There was trees,

logs, anything that would float. Anything that would

float was on the [172] track. Lumber. There was one

area that was, oh, I guess twice the width as long as

this room, which that completely covered both main lines,

3a

and it was ten feet high: just jammed full of chlorine

bottles, propane, oxygen, saline, lumber, rolls of paper

that weighed two, three, four thousand pounds a piece.

And all that had to be cleared in order to even get a

train by.

Q I take it that it would be fair to say that at least

at that point, the track was inoperable?

+ * * *

BY MR. PALMORE:

Q You testified that there was some areas that were

washed out?

A Yes. That’s true.

Q Were there other areas that were [178] less dam-

aged?

A There was a lot of major wash outs. That is, the

ballast between the ties was washed away or the level

of the river was approximately the height of the rail and

it just washed through the track as opposed to washing

completely under it. Those had to be taken care of. This

was east of Lynchburg, and just east of Lynchburg a

mile, there was one location where everything was gone

under both main lines. We had to build little temporary

bridges out of a railroad ties and take railroad cars over

it and dump all this rock and then bring the track up

more level than what it was. There was—there was

many places east of Lynchburg where the—everything

was gone from the end of the ties out: the rails, abaut

two feet out from the rail, from the end of the ties, and

went straight down ten, fifteen, twenty feet. There was

no walkway at all and we had to fill this portion of the

track in to maintain a solid roadbed.

* * * *

cee Bnet A ORNL A <n "

[184] Q Now, what you have just shown the jury,

described for the jury, is that or was that not indicative

of many places along the entire James River subdivision?

A Id say it was a fair example of many areas along

a eT

4a

the subdivision, and there were really a few places worse

than that.

Q Now, after you were assigned or after you took

over the supervision of the clean-up between Lynchburg

and Gladstone, how long did it take to put the railroad

back into operation where you could actually have trains

moving along the line?

A It took a full ten days from the time of the flood

to the time the first train left Clifton Forge and could

get to Gladstone, even though they operated very lim-

ited speeds. Mostly ten miles an hour.

Q What type of hours did you have the men working

along the James River subdivision to [185] put it back

into shape?

A I changed the—-that is, the men that worked on my

end, I changed their starting times such that they would

be on the job at daylight. Of course, in the wintertime,

it’s say 6:30 probably about the time you get daylight,

and we worked until dark, which again, due to a loss of

daylight during the winter hours, you only work until

about 5:30 or 6:00 at night. We didn’t work anybody in

the dark because we didn’t—we didn’t think the—with

as much work as we had to do, we didn’t think trying to

work at night and getting say a fourth of the work you

could do in the day was worth the risk of, you know,

around these wash outs and stuff. We just didn’t think

the risk was worth the benefits.

Q So a typical day would go from approximately

what time to what time?

A Six in the morning until six, seven at night.

Q And you state that it took approximately ten days

to actually put the—get the track to the point whzre

you could pass a train over it?

A That’s true.

(186] Q And at a limited capacity?

A Yes, sir.

Q Now, did that—once that was accomplished, was

the work done in terms of building the railroad back?

A No. That only did the minimum that you could do

to the main line to get a train from Clifton Forge to

Gladstone. Just the minimum. There was still weeks

and hours—many, many hours, manhours to be spent

building the roadbed out, resurfacing some tracks, re-

dumping some places that were weak, that were low.

Hundreds and hundreds of hours of telephone poles, erect-

ing those, unloading those.

We had things what we call slide fences that were

full of debris. Slide fence is a type of fence that sets the

signal when a rock falls down and into the fence, it

causes the red signals so the trains have to stop. None.

of those operated so you were really in a blind as to

whether there was a rock on the track along these bluffs

where you have cliffs along the track. All of that had

to be cleaned out, rebuilt. There was so many, many

things had to be done.

Side tracks washed completely away. [187] All this

had to be rebuilt.

Q If you use the ten-day—approximately ten-day pe-

riod in which it took to put the track back into at least

minimum operation, how long did it take, Mr. Frost, to

get the James River subdivision back, if you will, to even

approaching the level of pre-flood 1985?

! A The middle, end of March 1986. We worked all

winter and had to go into roadbed, working on tracks,

yard tracks, sidings, lesser used tracks. It took all winter

to get these in good shape.

* * e *

[189] Q Now, along the tracks of the James River

subdivision, are there what are referred to as power

switches?

A Yes, there are.

a teen

6a

Q And what is your understanding of what a power

switch is?

A A power switch is one that is remotely controlled.

That is, the movement of the switch, the changing from

switch points to line the train from either number one

or two track or into a siding or down the main line, it’s

controlled from Richmond, which is our central dispatch-

ing office.

Q And what effect. did the flood have on the power

switches?

A Well, the flood, it—most of the switches were cov-

ered with water. I’d say almost probably ninety percent

of them; and it deposited a lot of mud and debris in and

around the switches, particularly inside of them. It

knocked down these telephone lines which carries the

signal from Richmond, so without any signal, the switches

lay dormant, they can’t even be used. And of course they

were immediately cleaned up, but until the signal lines

were put back, they couldn’t be in full operation.

[190] Q Okay. I take it in addition to power switches,

there were manual throw switches as well or hand throw

switches?

A Oh, there is plenty of hand throw switches on the

main line and of course most all yard switches are man-

ual.

Q Now, were there some areas along the James River

subdivision that required little or no repair?

A There was some areas around on the subdivision

that didn’t need any repair.

* * * *

[191] Q Are you familiar, Mr. Frost, with a power

switch that’s located at mile post 143?

A Yes,I am.

Q Is that location referred to as Tyree?

A Yes. Its location is Tyree east end double track,

Tyree.

Q Is that a power switch?

A Yes, it is.

Ta

Q Now, was that switch to your knowledge knocked

out or made inoperable as a result of the flood?

A It was made inoperable electrically because of the

flood because of the signal damage, because of the dirt

damage inside the machine itself.

* * * *

[193] BY MR. PALMORE:

Q Mr. Frost, what was the geneval [194] condition

of the switch area at Tyree after the flood?

A After the flood, the general condition at Tyree was

no apparent damage. Of course, there was certain

amount of debris, but over in the ditch lines. There

wasn’t much—really wasn’t any on the track itself.

There was some sand and a little bit of debris got stuck

in the switch points from the flowing of the water. As

far as roadbed damage, that is the ground beyond the

end of the ties, there was next to nothing.

Q What maintenance did—strike that.

What maintenance was performed at the switch area,

if any then, from the time that the water subsided at the

Tyree switch area until late May 1986?

A We hadn’t done anything there through May ’86.

Q Put any gravel down?

A No. We didn’t dump any ballast or gravel.

* * +o *

[196] Q Tell the jury, if you will, Mr. Frost, the

difference in throwing a power switch as opposed to one

that’s normally operated [197] on hand throw.

A Well, a power switch, like it says, is—normally

should be thrown by power, and when you hand throw a

power switch, you’re doing something that should only

be done in an emergency situation, which is what we had

at the time. And in comparison to a regular hand throw

switch, they are a little more difficult to throw. And

some of the reasons are a typical hand throw switch has

switch points that are only sixteen-and-a-half feet long:

8a

two points at sixteen-and-a-half feet long each, whereas

this particular power switch—and most of them are—the

points are twenty-four or thirty feet long. Almost twice

the weight. And so you’re pushing twice the weight over

and back—with the help of the mechanism, of course,

you are pushing twice the weight over and back—as you

do on a normal hand throw switch in the yard situation.-

You know, in the yard where they’re more frequently

hand thrown, too.

[226] Q I believe you testified that you started your

work at Lynchburg?

A Yes, sir.

Q And Tyree is how much miles east of Lynchburg?

A Well, it’s within the city limits of Lynchburg, but

if you consider the yard office which sits at mile post 145

the center of Lynchburg, as far as the railroad is con-

cerned, it’s two miles east of Lynchburg.

Q Okay; and you all worked basically west to east?

A My little group did. West to east.

Q And that the Tyree area was within two miles of

that?

A Yes, sir. From our beginning point.

* * * *

ROBERT SMITH—DIRECT

[242] Q What function did you and your men play

in terms of responding to that damage?

A At first, you have to clean the mud out of these

switches. And you learn a little more each flood you go

through. If you don’t wash them out before the mud

dries them, then it’s almost _an impossibility to clean

them up. Then, you have to tear them down, wash them

out. We use high pressure water pumps, wash the mud

out of them, and put them back together, which the

motors in them are ruined. We have to put new motors

back in them. They are non-salvageable.

9a

Q I’m going to ask you if you will to direct your

attention specifically to the power switch at Tyree, Vir-

ginia, mile post 143. Are you familiar with the one I’m

talking about?

A Yes, sir.

[243] Q Okay. Was that power switch knocked out

as a result of the flood?

A Yes, sir, it was.

Q Now, with respect to putting the switches back on

line if you will, will you tell the members of the jury in

which direction, from what end of the James River sub-

division did you work?

A See, the way they carry the equipment is the way

the system is designed, you have to start from west and

work east. You can’t go to the east and work west or go

in the middle, because the way it’s engineered, you have

to work from west to east, because the electronic equip-

ment that we use comes from Richmond to Clifton Forge,

then works back east, and it has to be put back in suc-

cession. :

Q Based upon your position as supervisor of signals,

Mr. Smith, do you know when the power switch at Tyree

was placed back on line?

A I believe it was February the 19th.

Q Of 1986?

A Yes, sir.

Q As of February 19, 1986, Mr. Smith, had the—

had the result of or the damage that was [244] caused

by the flood along the James River subdivision been com-

pletely fixed or repaired?

A Repeat that, please.

Q In terms of the condition of the trackage on the

James River subdivision, as of February 19th, was there

still work being done along the way?

A Yes, sir. Now, February the 19th, we put every-

thing back to work from Clifton Forge to Tyree. We

still didn’t have it working from Tyree to Gladstone.

Q All right, sir; and you continued to do that?

A Yes, sir.

m a * *

10a

APPENDIX B

Listing of Corporate Affiliations Prescribed by

Rule 28.1 of the Rules of the Supreme Court

of the United States

Pursuant to Rule 28.1 of the Rules of the Supreme

Court of the United States, Respondent the C & O states

that it has merged into CSX Transportation, Inc. The

parent of CSX Transportation, Inc. is CSX Corporation.

CSX Transportation, Inc.’s_ subsidiaries, not wholly

owned, and affiliates are as follows:

Akron and Harberton Belt Railroad Company (The)

Akron Union Passenger Depot Company (The)

Allegheny and Western Railway Company

Augusta and Summerville Railroad Company

Baltimore and Philadelphia Railroad Company (The)

Beaver Street Tower Company

Belt Railway Company of Chicago

Central Florida Pipeline Corporation

Central Railroad Company of South Carolina (The)

Central Transfer Railway & Storage Company

Centralia and Webster Springs Railroad Company

Chatham Terminal Company

Chicago and Western Indiana Railroad Company

Clearfield and Mahoning Railroad Company

Cleveland Terminal & Valley Railroad Company

(The)

CSX Services, Inc.

Dayton and Michigan Railroad Company

Dayton and Union Railroad Company

Delaware and Soundbrcook Railroad Company

First Georgia Development Corporation

Fruit Growers Express Company

Home Avenue Railroad Company (The)

Lakefront Dock and Railroad Terminal Company

(The)

Monogahela Railway Company (The)

lla

Norfolk and Portsmouth Beltline Railroad Company

North Charleston Terminal Company

Paducah & Illinois Railroad Company

Richmond-Washington Company

RF&P Corporation

Terminal Railroad Association of St. Louis

Trailer Train Company

Winston-Salem Southboard Railway Company

Woodstock & Blocton Railway Company