Transcript of Record — Mary Genevieve Pennell, Administratrix of the Estate of Jay Allen Pennell, Deceased, Plff. In Err. v. Philadelphia & Reading Railway Company
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"SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, vou. 1913
0. 8460
“MARY GENEVIEVE PENNELL, ADMINISTRATRIX OF THE
* EBTATE OF JAY ALLEN PENNELL, DECEASED, PLAIN-
TIFF IN ERROR, : | | : :
ve. -
PHILADELPHIA & READING RAILWAY COMPANY.
aol ERROR TO THE UNITED STATES CIRCUIT COURT OF APPEAIS FOR
THE THIRD CIRCUIT.
—— nn ee ee
FILED FEBRUARY 24, 1013.
(28,561)
(23,561)
SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1912.
No. 9386.
WARY GENEVIEVE PENNELL, ADMINISTRATRIN OF THE
ESTATE OF JAY ALLEN PENNELL, DECEASED, PLAIN
TIFF IN ERROR,
v8.
PILLADELPHLA & READING RATLWAY COMPANY,
IX ERROR TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR
THE THIRD CIRCUTT
INDEX.
Page
Transeript from the distriet court of the United States for the eastern district
of Pennsyvivania , 1
Docket entries
Writ of error.. . 2
Statement of claim a %° 4
¢ wee ‘ ; ; PETER T PCs SA ee
Jury.. ; : ba 7
Verdict. as : ern ae ; &
Bill of exceptions Ss
Evidenes for plaintiff... i “Ry ee 9
Testimony of Mary G. Pennell reeds 9
Frank Shellhamianer : 22
Morin Tc. WON. 65 0. ctscisce ink ake 36
Norman €,; BROVeF ... c. 6. i. wa ee ie 2
Carl LH. Fessler... ... ae eure 48
Arthur PL Hense! : Bone eae fe 53
M. F. Wise. ; PS ee eee 83
James BE. Meilon.... eee ID eat 61
Lawrence Weber... ... Ata ak ee ees 70
Jupp & Derweiter (1c. ), PRINTERS, Wasuinorox, D. C., Marcu 1, 1918.
~ Pr, WI AR EDEL! Bel iS LD te WE BRITT
ll INDEX
PUM POO 3 6. 53 cas veda ek PO he Seto wemh eee ce aware
Motion for instruction for defendant...0 20.00... Ne, oe Pasiaw’
Defendant offers no evidence. .....
Case argued to the jury.... |. aesents OMS Seeks
Charge of the court............ Ais yi ober Naa hen Ia isha A
Judge's certificate to bill of exceptions...... 00.2.2...
pacuon And Teas TOF NEW tial. eo. ce cs osc cee chi sece cava ven
RODIN Sconce eect ss ae Be cree Gag a Nisa wien 0
Priecipe for judgment... ...
FGGRMNENE .. 6.06.54... npty art ee Se ee
Assignments of error 2... 0.2... ie ae
Priecipe sur transcript of record... 0.0000... ...
Clerk's certificate .
Hearing and submission ....... dt eee:
WINN 5 5c ae sce en se TAS eta CPI
Judoment ...... ..... HS orp ne ALE ears nt
Assignment of errors ..... ee SAA De
Petition for writ of error... ..
Order allowing writ of error... ..
Bond on writ of error..
Writ of error...
Clerk's certificate .
Citation and service Pores kk Ws
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PES hs Satin a Minha Roe
DECEMBER SESSION, 1911.
George Demming
W734
W. C. Mason
912 March 2
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Mary G. Pennell, Administratrix
of the Estate of Jay Allen Pen-
nell, Deed.,
ts.
Philadelphia and Reading Rail-
way Company.
Praecipe for Summons filed.
Summons exit returnable the first
Monday of March inst.
Statement of Claim filed.
Rule to plead filed.
Summons returned ‘*served”’
and filed.
Order for the appearance of Wil-
liam Clarke Mason, Esquire,
for defendant filed,
Plea filed,
Order to place case on trial list
filed,
Jury called,
Verdict for defendant.
Motion for new trial filed.
Opinion, McPherson, J., refusing
motion for new trial filed.
Bill of Exceptions filed.
Praceipe for judgment filed.
Judgment accordingly.
Judgment filed.
Assignment of errors filed.
Petition for writ of error filed.
Order allowing writ of error
filed.
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TROATUNE GANAS PERIGEE rvs
2 Writ of Error.
Bond sur writ of error in the sum
of $100.00 filed.
Order approving bond sur writ
of error filed.
Writ of error allowed and copy
thereof lodged in Clerk’s office
for adverse party.
Citation allowed and issued.
Praceipe for transeript of record
sur writ of error filed.
‘* June 4+ Citation returned ‘tservice ae-
cepted’? and filed.
UNITED STATES OF AMERICA, ss.
Tue Presipent of true Unxiren Srares,
To the Honorable the Judge of the District Court of
the United States for the Eastern District of
Pennsylvania,
Greeting:
Because in the record and proceedings, as also in
the rendition of the judgment of a plea which is in the
said District Court, before vou, or some of you, be-
tween Mary G. Pennell, Administratrix of the Estate
of Jay Allen Pennell, Deed.. Plaintiff, against Phila-
delphia and Reading Railway Company, Defendant, a
manifest error hath happened, to the great damage of
the said Mary G. Pennell, Administratrix of the Estate
of Jay Allen Pennell, Deed. as by her complaint ap-
pears. We being willing that error, if any hath been,
should be duly corrected, and full and speedy justice
done to the parties aforesaid in this behalf. do com-
mand vou, if judgment be therein given, that then un-
der your seal, distinctly and openly, you send the ree-
ord and proceedings aforesaid, with all things concern-
ing the same, to the United States Cireuit Court of
Writ of Error. 3
Appeals for the Third Circuit, together with this writ,
so that you have the same at the City of Philadelphia
within thirty days, in the said United States Circuit
Court of Appeals, to be then and there held, that the
record and proceedings aforesaid being inspected, the
siid Cireuit Court of Appeals may cause further to be
done therein to correct that error, what of right, and
aceording to the laws and customs of the United States
should be done.
Witness the Honorable the Judges of the Dis-
trict Court of the United States, at Phila-
delphia, the 29th day of May, in the year
(SEAL) of our Lord one thousand nine hundred
and twelve.
Hexry B. Ross,
Deputy Clerk of the District Court
of the United States.
sofore McPurrson, J.
Allowed :—
BY THkE COURT.
Attest:
Hexry B. Ross,
Deputy Clerk.
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wer
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4 Plaintiff’s Statement of Claim.
IN THE
DISTRICT COURT OF THE UNITED STATES,
EAsteERN Disrricr oF PENNSYLVANIA,
December Term, 1911. No. 1734.
—_ ——_—
MARY G. PENNELL, a citizen of the State of Marvy-
land, and Administratrix of the Estate of Jay
Allen Pennell, Deceased,
ves.
PHILADELPHIA & READING RATLWAY COM-
PANY, a Corporation of the State of Penns: iva
nia.
PLAINTIFF’S STATEMENT OF CLAIM.
Filed March 4, 1912.
The plaintiff, Mary G. Pennell, being a citizen of
the State of Maryland, and Administratrix of the Es
tate of Jay Allen Pennell, Deceased, seeks to recover
from the defendant, the Philadelphia & Reading Rail-
way Company, a Corporation of the State of Pennsy!
vania, the sum of Fifty thousand dollars ($50,000.00),
upon the eause of action of which the following is a
statement:
The plaintiff, Mary G. Pennell, as Administratrix
of the said Estate, brings this action for the benefit of
Mary G. Pennell, widow of Jay Allen Pennell, de
eeased, and Anna BE. Pennell, infant daughter of said
Jay Allen Penneil, deceased, aged about two years and
six months. Said plaintiff also brings this action
under and in accordance with the provisions of the
Acts of Congress, approved April 22, 1908, and April 5,
1910, being an Act of Congress and an Amendment to
Plaintiff’s Statement of Claim. a)
the same relating to the liability of common carriers
by railroad to their employees in certain cases.
The defendant, the Philadelphia & Reading Rail-
way Company, is a common ‘arrier corporation, en-
gaged in the business of transportation for hire, both
of freight and passengers, and is engaged in Interstate
and Foreign Commerce, being incorporated for this
purpose under the laws of the State of Pennsylvania.
On and about the 31st day of December, 1911, said
Jay Allen Pennell, the husband of said widow, Mary
G. Pennell, and father of said child, was employed (and
had been for some considerable time previously) by
said defendant corporation in the capacity of fireman
on an engine or locomotive, belonging to and controlled
by said defendant corporation, and pulling, drawing
and hauling one of defendant’s train of cars, carrying
interstate and foreign commerce and tratlic, engaging
in commerce between several States, and on its way
from a point near Harrisburg, Pennsylvania, to a
point near and at Hagerstown, Maryland, and on and
about the ears, engines, appliances, machinery, track,
roadbed and other equipment used, owned, controlled,
operated and directed by said defendant corporation in
said interstate and foreign commerce and trafic.
While said Jay Allen Pennell, on and about said
date, was engaged in the proper, careful and necessary
performance of his duties as fireman of said locomo-
tive of said train, and when said train had arrived at a
point near what is known as Moore’s Mills, near Mount
Holly, Cumberland County, Pennsylvania, without any
negligence or carelessness whatsoever on his part. and
due entirely to the negligence, carelessness and over-
sight of defendant corporation, its servants and em-
ployees, its failure to supply proper, necessary and
safe devices, instruments, machinery, appliances and
apparatus, its failure to have proper and needed in-
spection, testing and replacement of parts, devices and
apparatus, and due to the failure of said defendant
Si ola
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6 Plaintiff’s Statement of Claim.
corporation to observe, abide by and earry out the re-
quirements, directions and commands of the Acts of
Congress approved March 2, 1893, amended April 1,
IS96, approved Maret 2, 1903, and approved April 14,
1910, being an Act to promote the safety of employees
and travelers upon railreads by compelling common
carriers engaged in interstate commerce to equip their
cars with automatic couplers and continuous brakes.
and their locomotives with driving wheel brakes. and
for other purposes, and the various amendments to
said Act, otherwise known as the Safety Appliance
Acts, and the rules and directions of the Interstate
Commerce Commission formulated and proclaimed wn-
der and in accordance with said Acts, the coupling and
parts between the said locomotive or engine and the
tender following, holding and attaching the two to-
gether, broke, gave way and failed, thereby throwing.
precipitating and allowing to fall, said Jay Allen Pen-
nell, between said engine and tender, and causing said
Jay Allen Pennell to fall to the ground and track be-
low, whereby he was run over, crushed, and otherwise
grievously and fatally injured, so that he died within
a very short time afterwards.
And by its usage and practice, causing and allow-
ing said coupling and parts to break, give way and
fail, it is especially and particularly charged by plain
tiff that defendant corporation violated and disre-
garded the provisions and requirements of the Acts of
Congress mentioned and referred to in the preceding
paragraph, popularly known as the Safety Appliance
Acts.
By reason of the death and killing of said Jay
Allen Pennell, in the manner as above deseribed, said
widow and child are deprived of the fellowship and
companionship of husband and father, are robbed and
deprived of his support and maintenance for all time
to come; and said widow is put to great expense and
loss for funeral expenses and burying her said de-
ie ie
~I
Plea.—Jury.
ceased husband, and otherwise thrown absolutely on
her own resources and personal efforts and the mercies
of a eallous and cold world for the sustenance and live-
lihood of herself and child, and altogether damaged in
the sum of Fifty thousand dollars ($50,000.00) as above
set forth.
Wherefore plaintiff brings this suit.
Grorce DEMMING,
Attorney pro Plaintiff.
PLEA.
Filed March 7, 1912.
Defendant Railway Company pleads—Not Guilty.
Wa. Ciarke Mason,
Counsel for Defendant.
To Clerk of said Court.
JURY.
And afterwards, to wit, on the 15th day of April,
1912, a jury being called came, to wit:
Charles A, Stein ieorge T. Moxey
Henry D. Allen D. M. Leopold
S. Harvey Thomas — KB, C. Gery
George W. Chapman Ernest E. Parker
A. Li. Rhoads F. M. Borden
J. KF. Power Jacon B. Naftzinger,
who were respectively sworn or affirmed to well and
truly try the issue joined. :
s Verdict.—Bill of Exceptions.
VERDICT.
And afterwards, to wit, on the 16th day of April,
1912, the jurors aforesaid upon their oaths and aflirma-
tions respectively do say that they find for defendant.
BILL OF EXCEPTIONS.
Be it remembered, that in the said term of Decem-
her came the said plaintiff into the said Court, and im-
pleaded the said defendant in a certain plea of Tres-
pass, &e. in which the said plaintiff declared (prout
narr) and the said defendant pleaded (prout pleas).
And thereupon issue was joined between them.
And afterwards, to wit, at a session of said Court,
held at the County aforesaid before the Honorable
John B. MePherson, Judge of the said Court, the 15th
and 16th days of April, 1912, the aforesaid issue be-
tween the said parties came to be tried by a jury of
the said County for that purpose duly impaneled
(prout list of jurors), at whieh day came as well the
said plaintiff as the said defendant, by their respective
attorneys; and the jurors of the jury aforesaid impan-
eled to try the said issue, being also called, came, and
were then and there in due manner chosen and sworn
or affirmed, to try the said issue; and upon the trial
the counsel of the said Mary G. Pennell called the
following named witnesses and produced the fol-
lowing evidence (prout evidence offered by plaintiff,
as shown by the the stenographice transeript filed here-
with: and thereupon the defendant offered no evidence ;
which was all the evidenee produced by both sides, and
thereupon the Court charged the jury as follows(prout
charge of the Court, as shown by the stenographie
transcript filed herewith and approved by the Court):
Mary G. Pennell. 9
Before Hox. Joun B. MePuerson, J, and a Jury.
Philadelphia, Pa., Monday, April 15, 1912.
Present:
Greorce Demnine, Ese, representing the
plaintiff ;
W. Crarnke Masox, Esg., representing the de-
fendant.
PLAINTIFE’S EVIDENCE.
Vrs. Mary G. Pexseu., having been duly sworn,
was examined and testified as follows:
By Mr. DemMinc:
Q. Where do you live now?
A. Bloomshoro, Maryland.
Q. Where did you live on December 31, 1911, last
year?
A. Harrisburg, Pennsylvania.
(). Was Jay Allen Pennell your husband?
\. Yes, sir.
Q. By whom was he employed?
\. The Philadelphia & Reading Railway Com-
pany.
Q. And in what eapacity?
A. Fireman.
(). On what kind of a locomotive?
A. A freight train.
A freight locomotive?
3 Yes, sir.
Q). How long had vou been married to him?
\. Three years
(). Have you your marriage certificate?
\. Yes, sir. iM: irriagwe certificate produced.)
Mr. Demaixe: Mr. Mason, do you want to
see it?
ae
LIL LOK G ELITIST EIT LIT HID
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aa ee ne ee Se a eee
10 Mary G. Pennell.
Mr. Mason: No: she said she is his w idow :
there is no doubt about it.
By Mr. Demnine:
Have you any issue by your husband any
children?
A. One.
Q. What is the name of this child?
A. Anna Elizabeth.
Q. Anna Elizabeth Pennell?
A. Yes,
Q). A little girl?
A. Yes.
(). Tlow old is she?
A. She is two and a half vears.
(). That is the only child vou have?
\. Yes, sir,
(). Have vou taken out letters of administration
on your husband's estate?
A, Yes, sir.
@. (P vai shown witness.) Are those the letters?
\ Yes, si
Mr. ao MING: The letters of administration
are offered in evidence, as follows:
The State of Marvland.
To All Whom These Presents Shall Come or May
Concern:
Know Ye, That on the second ¢ lay of February
in the vear of our Lord one thousand nine hun-
dred and twelve, Letters of Administration on the
personal estate of Jay Allen Pennell, late of Wash-
ington County, deceased, were regular lv granted
unto Mary G. Pennell by the Orphans’ Court of
said County, duly thereunto elected, commissioned
and qualified according to the Constitution of the
State of Marvland, aforesaid, and on the same day
and vear aforesaid the said Mary G. Pennell came
into the said Conrt, and accepted of the said ap-
wa
Mary G. Pennell. 11
pointment, and gave bond in the penalty of S100,
with security, which was approved by the said
Court. for the faithful performance of her trust
as \dministratrix as aloresaid, and that she is still
the acting Administratrix of said estate.
In Testimony Whereof, 1, Thos. E. Hi!
linrd, Register of Wills for said County, do
hereunto set my hand and aflix the publie soa!
of my office, this second day of February,
A ae Aten
(SEAL) Thos, BK. Hilliard,
Register of Wills.
— |
State of Marviand, Washington County, to Wit:
1. Wm. Gassman, Chief Judge of the Orphans”
Court of Washington County, in the State of
Maryland, do hereby certify that Phos, Ih. Hilliard
is the Register of Wills in and for the County
aforesaid, and that the foregoing attestation ly
him is made in due form and by the proper officer,
In Witness Whereof, 1 do hereunto sel
my hand and aflix my seal, at Hagerstown, in
said county, second day of February. .\. 1).
Wie.
Win. Gassman,
(L.S.) Chief Judge.
State of Maryland, Washington County, to Wit:
l. Thos. EK. Hilliard, Register of Wills for
Washington County. in the State of Maryland, do
hereby certify that Win, Gassman, Esq. who ap
pears to have taken and signed the foregoing at-
testation, was at the time of taking and signing
the same, and still is, the Chief Judge of the Or-
phans’ Court of Washington County aforesaid,
duly thereunto elected, commissioned and qualified
according to the Constitution of the State of Mary-
land aforesaid, and to all his acts as such full faith
TSSPEI?
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Mary G. Pennell.
and credit are and ought to be given, as well in
Courts of Justice as thereout.
In Testimony Whereof, I do here ‘unto set
my hand and aflix the public seal of my office
this second day of February, A. D. 1912,
(SEAL) Thos. FE. Hilliard,
Register of Wills for Washington
County.”
By Mr. Demauina:
(). They were taken out in Bloomsboro, Marvland !
A. Hagerstown.
(). That is the County seat?
A. Yes, sir.
Q. What was the last vou saw of your husband
alive?
A. Three o’eloek on Sunday morning.
Q. Three o’clock on Sunday morning?
A. Yes, sir.
Q. What date?
A. December 31st.
Q. The 31st of December, 191]
\. Yes, sir.
Q. And what was the occasion? What was he
doing then?
A. He was going to work.
Q. Tle was going to work?
A. Yes, sir.
Q. He went to work as fireman for the Philadel
phia & Reading Railway road that morning?
A. Yes,
Q). What time that morning did he leave?
A. He left about 3 0’¢lock.
In the morning?
A. Yes.
Q. It was dark?
A. Yes.
Q. Do you know what time his crew left for Hag-
erstown?
oC oarrel
Ofer oar,
Mary G. Pennell. 13
A. 3.50, 1 think.
Q). 3.50?
AL 3.30,
Q. And left Rutherford yards, was it?
Mir. Masox: Unless she knows, you had bet-
ter wait until you get somebody who does know.
By Mr. DemMine:
(). He left your home in Harrisburg:
A. Yes.
(). Where did vou live in Harrisburg at that time?
A. 312 North Street.
Q. What was the next you knew:
\. I did not hear anything until 10 o’elock Sun-
day morning, that he was killed.
(). That is the same morning he left?
A. Yes, sir.
(). In what way did you get word?
Tar Courr: Never mind these ummportant
details.
By Mr. DemMine:
Q). What sort of aman Was your husband? How
old was he?
A. Thirty-two years old.
(). How about his height? How tall was he?
He was about five feet eleven inches.
low much did he weigh?
One hundred and seventy-five pounds.
QO. What was the condition of his health?
A. Tt was good.
Q. You say good. Had you ever known him to
ever lose a day on account of illness?
\. Now sir. When he was burned that time. That
is all. He was burned onee. ‘That was all.
Q. He was burned once?
A. Yes.
> am
Co HK le
ry . a
Q). That was while he was performing his duties?
A. Yes.
2
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14 Mary G. Pennell.
Q. Did you ever know him to have medica! atten.
lion outside of that burn?
A. No, sir.
Did he have any organic trouble that you know
of?
A. No, sir.
Q). Do you know of your own knowledge how much
he earned?
A. An average of $85 a month.
Q. $85 a month?
A. Yes.
(. How was he paid?) By the month or by the
week, or what?
A. By the month.
Q. What was the lowest he exrned that you know
of, as fireman?
A. Well, about S65,
(). What was the highest he ever earned?
A. He did earn S102.
(). $102?
A. Yes, sir
The average vou think was about $85?
AL Yes,
Q. How much of that money would he give you
for the support of vourself and your child?
A. He brought it all home and gave it to me,
(). Gave it all to vou?
A. Yes.
Q. How much then would vou give him each
mouth for his own use?
A. Five dollars.
(). Is that all?
A. Yes, sir.
(). About 89?
A. Yes, sir.
And the rest was used how?
A. To keep np the home expenses,
Q). For yourself and child in the home?
Mary G. Pennell. 15
A. Yes, sir. 3
(). What were your funeral expenses ? 4
AL $102. %
Mr. Mason: | object to that. I do not think t
that is an item of damage. Is that an item of 2
damage in this suit?) [do not think it is an item
of damage in this suit, because, as T understand f
it. all that she can recover would be the value of ;
his life to the family and not any expenses. e
Tue Covrr: ‘Lam not prepared to say that, i
under the Act of Congress. 3
(Objection overruled.) e
(Exception noted for defendant, by direction
of the Court.)
By Mr. Deming:
Q. That bill has been rendered to you?
A. Yes.
Q. And von are, as administratrix, responsible for
it?
A. Yes, sir.
Cross-eramimation,
sv Mr. Mason:
(Q). When you say you know how much your hus-
band earned, how do you base your knowledge ?
A. He would bring it home and give it to me.
(). Do vou recollect how mue hy he gave vou the last
ibonth before his death, in November, for instance?
A. He was not working all during the month of
November.
(). So that there were some times during months,
some days during months, that he did not earn any-
thing. Is that right?
\. Well, he was net working at all during the
mouth of November. e
Q. None at all during the month of November? :
LRIT M ATESY Y YETI PRE NEN aE ERIE i ai Rey
FS OR rae ae ee
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rer Po Fo ahs WE RS ANE SNE BA
AAS Seiwa
16 Mary G. Pennell.
= No.
How about the month of October? Do you
Sieh how much he gave you that month?
A. No, sir, | do not.
(). How much did he give vou in the month of
September?
A. I think $70.
Q. Do vou remember how much it was in August?
A. I do not
(). How did he give von his w ages? Did he give
vou the check or did he eash it?
A. No, he had the cheek cashed,
(). He had the chee k cashed and then brought you
home: some money
A. Yes, sir.
(). And vou cannot recollect how mueh it was in
October?
= No, sir.
Just how de vou - the definite figures that vou
wave oe Demming, then?
A. Weill, it was an average of 385.
(J. What do vou mean by an average of $85?
A. Well, that is what it was.
(). How do you recollect that if you cannot give me
the amounts?
A. T just cannot speak of that now.
Q. Was not it nearer to $65 as a usual thing than
it was to $85?
A. No, sir.
If ft should show vou that your husband only
received in Aun e, TT, $64.70; July, 1911, $26.37;
August, 1911, $34.04: Se ‘ptember, 1911, $64.82: October,
191] $76.08: Nae ie » IST, $10.37, and Dikaaber .
1911, $99.50, would not vou think that was nearer to the
Seuonants that he received in wages than what vou have
told us?
A. Those amounts you have mentioned. he was
to camp for about two months, during July and August
fare RO ae i
Mary G. Pennell. 7
he was at camp, and, of course, he was not working
then,
(). He was not in camp in June, was he?
A. No.
He was not in) camp in September?
A. No.
He was not in camp in December?
A. No, but he was burnt in November and he was
not working then.
(). And he was not working in part of December:
A. No.
(). You say yeu only allowed him five dollars 2
vu for his own use’
A. That is all he asked me for.
(). How about his clothes? Did not he ever buy
clothes?
A. Yes, clothes.
That was extra?
A. Of course, he did not buy many clothes.
(). You do not include his expenses in the tive
dollars a month, do you?
A. Well. no.
Q. About how much would it eost your husband a
ont, in addition to the five dollars a month that vou
allowed him?
A. Well, he very seldom bought very many clothes.
One e a vear was all he bought.
Did he have any ether expenses at all?
z No, sir.
(). Nothing except the five dollars?
‘f No, sir.
(). You are familiar with your husband’s signa-
ture, are you not?
A. Yes, sir.
(). T show you his application to the Relief
elation and ask you whether that is his signature there’
A. L's es, sir.
Asso-
(Application to the Philadelphia & Reading
SO RCO NRE
TRE
PPR TIM By
NORA MIRIAM A .
rs TEEPE RET NS IT HN AL CE ALY DCE LANCOME Rte G Smee se Piet
: ™ tye LITT NPLATE Any SD Om Oa Rect 2
al a RN NE ONES EAS APA RIS CMTE RDO (5
“apt tigen
Is Mary G. Pennell.
Relief Association marked for identification ‘Kyx-
hibit A.**)
By Mr. Mason:
Q. 1 show you a release to the Philadelphia &
Reading Relief Association, under application No.
I2so18, and ask you whether that is vour signature?
A. Yes, sir.
(Release marked for identification ‘* Exhibit
a
By Mr. Mason:
(J. T show you a receipt of the Philadelphia &
Reading Relief Association, dated January 15, and ask
you whether that is vour signature to that?
A. Yes, sir
(Receipt marked for identification ‘* Exhibit
1).?*)
ay Mr. M ASON :
Q). And cheek of Drexel & Company, signed by the
Treasurer of the Philadelphia & Reading Relief As-
sociation, dated January 2, 1912, endorsed hy vou. Is
that vour signature?
A. Yes, sir.
(Cheek marked for identification ‘* Exhibit
(' fal |
Redirects raimination.
By Mr. Demin:
(). You have identified vour signature on one of
these papers, or all of these papers?
A. Yes.
(). When that so-called release was signed, do you
remember the circumstances under which it) was
signed?
A. Yes, sir.
(). Just tell the Court and jury under what. cir-
cumstanees vou signed that release.
Now GDM Le Na 5 el Sl “ sac ee S a aides s ee RT! -
oun se RATS A MT HANS RA tat PGS SA | oye A ae ATW Lead,
. = u
Mary G. Pennell. 19
Mr. Masox: | eannot see under what condi-
tions that would be materiat.
Tur Covre: It is cross-examination, for one
thing.
Mr. Masox: This is his witness. Even if he
Were eross-examining my Witness [ cannot see
the materiality of it in this ease. 1 would object
to it.
Tur Court: Tf you ask the question, how are
you to then object to it, that it is not material?
Mr. Mason: Lasked her whether she signed
that release.
Tur Cover: Yes. Then is not it cross-ex
amination te know the circumstances wider which
she signed it?
Mi. Mason: This is his witness.
Tur Cover: Yoru opened the question in yours
Cross-e\anination.
Mr. Mason: | do not think it is material.
By Mr. Deawina:
(). Tell the circumstances under which you signed
that release,
A. Beeause PE needed the money.
(). | know that. Where was that release signed?
\. In Harrisburg, in Alderman Windsor’s office.
). And who was present?
A. The Alderman and [E think the relief clerk.
) ‘The man who eame from the Reading Railroad
with the cheek and the release?
A. Yes, sir.
Q). Who else?
A. And vou.
(). And L was present?
A. Yes.
(). Just say what you stated at the time you signed
that release.
Gee, Spee
RRO ort.
RTT aS
SRT Reps
Mary G. Pennell.
Mr. Mason: I object to that. I do not want
Mr. Demming to lead us into a realm of immaterial
things.
Tue Covrr: You opened this question your.
self,
Mr. Mason: I identified certain papers.
Tur Covurr: You opened the question your-
self. It was not cross-examination and you opened
the whole subject by your question.
Mr. Mason: | was simply saving time. Sup-
pose Thad put this witness on the stand?
The Courr: Lam not criticizing vou at all,
but you opened up a new question by your ques
tion. ©
Mr. Mason: My thought would be this, that
would her testimony, as to what she said, be evi
dence in this ease? Of course, | would put her
back on the stand and have her identify these
papers,
Tue Courr: TL see no objection to her testify
ing to what took place at that time.
(Objection overruled.)
(Exception noted for defendant, by direction
of the Court.)
By Mr. Dewayne:
(). At the time vou signed that release, did you
lodge a protest with the Alderman?
A. Yes, sir; [ did.
(). And protest that you were only signing for
the relief money ?
A. Yes, sir.
Q. And for nothing else?
A. That is all.
Q. And that was expressly understood at the time
vou did so?
Mary G. Pennell.
A. Yes, sir.
Q). When Mr. Pennell was in camp-—you have said,
in reply to the gentleman on the other side, that Mr.
Pennell, during some of these months he asked you
about, Was in camp?
A. Yes.
(). Did he receive money?
State?
A. Yes, sir.
(). And that money was paid to you also, Was it?
A. Yes, sir.
(). In order to show the kind of a man he was and
the condition of his health, have you his picture?
A. Yes, sir.
(). Have you a recent picture, taken before lhis
death?
A. Yes, sir: daring camp TP lave one.
(). The camp of Ith?
A. Yes.
(). Have you those pictures with you?
A. Yes, sit.
(). Let us see them.
Was he paid by the
(Pietures produced.)
) Which is Mr. Pennell?) That is he, is it?
A Yes, sir,
(). Which one is that?
\. The second one.
The second one from the right on the back row?
Nu *
A. Yes, sir.
fle belonged to the National Guard?
N
A. Yes.
). And that aceounts for his uniform?
A. Yes, sir.
Re-cross-cramination
By Mr. Mason:
Nk |
Q). At the time that vou signed this release which
RT TE LT LOHR,
—_
Se OE FEES
2
5 Sth ml
a
"REEL EEE SIO EERE LR RE EA AES
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Fen Fe aa
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A AL Fe Dien A DO tetra MOOT yu el et tlh aay Bee, I eglaean bth rele an de
22 Frank Shellhammer.
you have identified in the Alderman’s offiee you un-
derstood what was in that release, did you not?
A. Yes, sir.
Q. And did not the Alderman tell you that you
must sign it without any qualifications or he would not
let vou sign it in his office?
A. No, sir.
Q. That you must sign it as the release that is set
forth to be, or he would not witness your signature,
and you would have to take it somewhere else?
A. No, sir.
Q. And did not you sign it with that understand
ing?
A. No, sir.
PRANK SHetiouamMer, having been duly sworn,
Was examined and testified as follows:
By Mr. Demaine:
Q. Where do vou live?
A. T live at 1192 Cherry Street at present, Harris.
burg.
Q. Your business is what?
A. Locomotive engineman.
Q. And you work for the Philadelphia & Reading
Railway Company, the defendant here?
A. Yes, sir,
Q. How long have vou worked for them?
A. TL have been working for them for about seven
years,
Q. Were vou the engineer on this locomotive on
Which Pennell was killed?
A. T was.
Q. You were extra engineer then?
A. Yes, sir.
(). Not a regular engineer for them?
A. No, sir.
Q. You were going at the time of this death from
where to where?
Frank Shellhammer. 23
A. From Rutherford to Hagerstown.
(). Rutherford yards, | think you eall them, do you
not, near Harrisburg, Pennsylvania?
A. Yes.
(). To Hagerstown, Maryland?
A. Yes, sir.
(). How mary cars had you on that train?
A. Forty-four, | think.
(). Were they loaded or empty?
A. Some were loaded and some were empty; most
of them empties.
(). In addition to the forty-four cars, you had the
caboose, had you, or do vou include that?
A. No, sir: that is not included; that is separate.
(). That is in addition? That would make torty-
live?
A. Yes.
Q. And the engine and the tender:
A. Yes.
Q). What was the number of your engine?
A. 1568,
Q. What time did you leave Rutherford?
A. Leould not tell the exact time of leaving.
() About?
A. T think we left about close on to 5 o'clock.
(). In the morning?
A. Yes,
Q. OF December 31, 1917?
A. Yes.
(). About where did the accident happen?
A. About a mile and a half east of Moore’s Mill.
(). East of Moore’s Mill?
A. Yes.
(). That is in Cumberland County, Pennsylvania,
is it not?
A. Yes.
Q. What sort of a fireman was Mr. Pennell?
A. Tle was a first-class man as a man and as 2
workingman.
oe
;
x
;
y
D4 Frank Shellhammer.
@. A eapable fireman?
A. Yes, sir.
Q. Was his work satisfactory ?
A. Yes,
(). Had vou known him for some time?
A. T had known him for at least a vear or so.
Q. Was he «a man of industrious habits?
A. Yes, he was. as far as | know,
Q. Working whenever he could?
A. Yes, sir.
(). How about his health?
A. 1 do not know anything about his family af-
fairs or health.
(). [do not mean his family. His health. Was he
a healthy man?
A. T don’t know anything about his health.
Q. Did vou ever know him sick?
A. 1 don’t know that T know.
Q. Do vou know how much he was earning a day
at that time?
A. I do not.
(. Or a month.
A. No.
(). Tell the Court and jury in your own way lew
the aceident happened,
A. Well, we were running along about fifteen miles
an hour when I felt the application of air, and looked
back and saw my engine was pulling away from. the
tender, and | released the brakes on the engine and
kept the engine away from the train to avoid the col-
lision, After the engine had stopped TI left the engine
come to av stop and hunted up Mr. Pennell, and found
him under the front truck of the fifth car.
(). You found him where?
A. Under the front truck of the fifth ear.
(). Under the front truck of the fifth car?
A. Yes.
(). Then the tender and four cars had gone over
him?
Frank Shellhammer. 25
A. Yes, sir.
() What kind of an engine was this?
A. It was what we eall an I-S8 e¢lass.
(). The 1-8 class?
A. Yes.
(). Where was your cab?) In the middle?
\. The eab is located on about the middle of the
boiler.
(). About the middle of the boiler?
A. Yes, sir.
(). And where would the fireman stand?
A. The fireman has a platform that is built on te
the tank.
Q). Back of you?
A. Back of the rear of the boiler, back of the tire-
box part of the boiler.
Q. That would bring him about how many feet
back of you?
A. About twelve feet, as near as | can tell.
(). Could you see him from vour position?
A. No, sir.
Q). What was the last you saw of Pennell?
A. LT eannot recall seeing him anywhere after I left
CGrantsville.
(). Grantsville is how far from the place of the
accident?
A. About eight or ten miles, as near as | can tell.
| took water at Grantsville. That is the last [T reeatl
seeing him.
(). Where was Pennell’s proper position? Where
should he have been?
A. On the platform of the tank.
(). By the platform of the tank, what do you mean?
A. Where the fireman had to work to get coal to
feed to the fire-box.
(). By the platform of the tank you mean that pro-
jection of the engine that goes over the opening he-
tween the tender and the locomotive?
FEN NO PORE DD Rr iar AR
po NP RE EI IE 0 OT ed toe AOD Ba
26 Frank Shellhammer.
FY A. There practically is not any opening. The
3 engine and tender are coupled about that close (indi-
3 cating).
. (). About how close?
A A. About that close.
r Q). The engine and tender?
A. Yes.
‘$ Q. How many inches do you call that?
: A. About six or eight inches, as near as | can tell.
(). The platform and that sill of the tender came
Within about six inches of the sill of the locomotive.
Is that what vou mean?
A. Yes, sir.
(). Is not there something that goes over that open-
ing?
A. No, nothing more than there are two aprous
under each fire door, but they are not down as low
as the tank. They are a little ways above the tank,
to avoid the coal, while vou are shoveling it in’ the
doors, from dropping on the track,
Q. To avoid what?
A. It is te avoid the coal from dropping to the
tracks.
Q). To prevent the coal from dropping through
there to the track?
A. Yes.
(). Is not that there also for the purpose of the
fireman standing upon it?
A. No.
(). It is not?
A. No.
() Does not he, in the course of his duties, have to
stand on it?
A. No: it is about that far above the floor of the
tank.
Q. Where does the fireman stand on that engine?
A. On the platform of the tank.
(). With regard to the opening between the engine
and the tender, where does le stand?
a fot
vd
Frank Shelihammer. Ly
A. The same place. That opening does not con-
cern him any. That is in front of him.
(). Do vou mean he straddles the opening with his
feet?
A. No: the opening is in front of him, just as |
tell vou.
(). The opening is in Front of you?
A. Yes, sir.
(). How far in front of him?
A. That platform, as near as 1 can tell, is about
four or five feet wide.
(). Four or five feet away?
A. Wide.
(). Four or five teet wide?
A. Yes. from the engine to the doors that hold
the coal.
Q). Was that tender loaded with coal?
A. Yes. it was loaded leaving Rutherford.
(). How far tront would the coal come?
A. The coal did not come to between about three
or three and a half feet to the rim of the tank platform.
(). Three to three and a half feet of what?
A. Of the rim of the tank platform. There is a
rin that tums around the tank platform to avoid the
coal from rolling on the tracks.
() And that rim is to keep the coal back, to keep
it in place?
A. To keep it from rolling on the tracks.
(). Then Pennell was standing in front of the rim,
Wis he not?
A. No. he was standing back of the rim. The rim
is rieht around the edge of the tank, as though the rim
was around there Cindieating).
(). Would Pennell stand near this crack, this open-
ing. between the locomotive and the tender?
A. He would practically stand about two and a
half feet away from the opening.
Q. Two and a half feet away?
ee eee
MOR TTI FY Ry
sae Ne
«7 “Ss
ei uke aa ots
= | ad Sie na Sh el Cems PORN rected CE) VAS IRE ty lel 5 tacoma Adee SS
Us Frank Shellhammer.
A. Yes.
Q. Depending upon what he was doing at the
time?
A. Yes.
Q). If he would step up to the door of the fire-box
he would be practically right over it, would he not?
A. No, he would not be over it. He would not get
over it, but he would be closer to it.
(). Very close to it?
A. Yes.
Q. You looked back. You felt the air pressure
going on?
A. Yes, sir.
(). You looked back, and vou saw the train. vou
say, falling back?
A. Following the engine.
Q. It was following vou?
AL Yes,
Q. But you could see vou were making a space be
tween the locomotive and the tender?
A. Yes.
Q. Did you know where the air came from that
caused this thing to happen?
A. Yes, | certainly knew where it eame from, but
I did not know where the break was.
Q. You knew it came from the train?
A. Yes.
(). But you did not know what ear it came from?
\. No, 1 did not know where the air was applied
from.
Q. Had vou applied the air from the engine?
»
A. No, sir.
J. How did vou know that?
A. Because T did not apply it. | know T did not
apply it.
Q. Had vou a gauge right in front of vou?
A. Sure.
Q. You could tell by that gauge that the air did
not come from the engine?
-_
PELL RD >. 4A at . 2
ET SE SR, BN OE ERT GEESE S LER: DANY BS oe BO
Frank Shellhammer. 2
A. Pcould tell by that gauge that the air was leav-
ing the engine by some cause of a parting or bursting
of some kind.
(). By that vou mean the air hose between the
tender and the engine had broken, and the air was
leaving the engine. Is that what you mean?
A. Sure.
You have a lever there in the engine by whieh
you ean put the air on the entire train, have you not:
A. It puts itself on automatically.
(). It did just at the time of the accident, but in
cause vou see something ahead of you on the track you
could put the air on from the engine, could you not.
A. Yes.
Q. Where was that lever located?
i.
A. The lever is located right aside of vou,
Q. Right beside vou?
A. Yes.
(). Had vou touched the lever or done anything
to it?
A. No, aif.
(). You had nothing to do with the air going on?
A. Nothing whatever.
Q). 1 just wanted to bring out the tacts. Tam not
charging vou with having done it. We want to get the
fact. Did you see your gauge going backwards at the
8
time?
I saw the train coming down,
When vou felt this air going on, what first
called vour attention to it?
A. Lfelt the brakes applying.
You felt the sensation?
A. You could feel the compression of the brakes
on the drivers, and that draws your attention to look
at the gauge.
You felt that through vour body instinetively :
you knew something had put the air on?
A. 1 felt the drivers grinding, and the first thing
30 Frank Shellhammer.
that would draw your attention is to look at the gauge,
to see if the air is leaving, and | did, and at the time
| looked at the gauge I shut the throttle and looked
back and saw where part was, and I saw where part
Was, and [ released the brakes on the driver and ke pt
the engine away from the tender to avoid a collision.
Had your gauge been indicating any leakage
before that?
A. No, [did not have any trouble whatever with
the air, Nothing else on the trip.
( ‘iti at all before that?
ca
d.
A.
Q. Ne iis to call your attention to any leakage
anyvw heres on the train?
A. No, sir.
(). Why, if the air had been put instantly on the
whole train, as vou afterwards ascertained, why had it
been put upon the drivers of vour engine at the same
time?
= It did.
And then how do vou — that your engine
pie away from the tender
Because the engine was working steam. and
ica Was no steam working the cars,
You were then forging straight ahead, knowing
nothing had happened?
A. Yes.
(). Not knowing anything had happened?
A. Yes.
That caused vou to go ahead?
\ Yes.
- When you finally got stopped yon say vou
found Fennell under the truck, of the front truek of
the fifth ear:
A. Yes, sir.
What was his condition?
Tue Covrr: TL suppose it is conceded that
he died?
Frank Shellhammer. 31
Mr. Mason: Undoubtedly; ves, sir.
By Mr. Demnine:
(). He died almost instantly after that?
A. The only sign of life that there was in the body
any more was breathing, and he breathed for about
twenty minutes after we found him.
(). Did you examine to see what caused the engine
and the tender to part?
A. No, nothing more than we found the pin right
alongside of him, and afterwards, while putting the
train away, we found the hose uncoupled.
(). But you did not—
A. 1 did not examine the hose coupling. 1 did not
see it.
(). You mean the hose of the car?
A. Yes.
(). You are not talking about the hose of your lo-
comotive?
A. No, the hose on the ear.
(). You did not go back and examine it?
A. No.
(). You found the pin, vou said, alongside of Pen-
nell?
A. Yes.
(). What pin was that?
A. The tender pin of the pulling bar.
(). The tender pin?
A. Yes.
(). What condition was it in?
A. Well, to my mind the pin was a clean break.
(. Was it broken?
A. Yes, it was broken.
(). It was broken?
A. Yes.
(). About what part of the pin was broken?
A. About the center of the pin. It was broke
about the center of the pulling bar.
Q. The center of the pin?
8 REO DORMS RN RARE 00%
Krank Shellhammer,
A. Yes.
(). Do you know where that pin is, or what became
’
A. Edo not. | do not know where the pin is.
(). Did von look at the casting on the drawing bar?
A. T aid.
(). Was it broken?
A. No, sir.
). Did you look for the pin on the locomotive it-
self on the other end of the drawing bar?
A. Not particularly,
(). There was nothing to indicate that was broken!
A. Nothing to indieate it: was broken, because the
bar Was fast in it.
(). The tender is an entirely separate car from the
locomotive, is it not?
A. Yes, sir: they are coupled with a draw bar,
() And the kind of coupling between the tender
and the locomotive was a draw bar and pin?
A. A draw bar and pin, ves, sir.
(). The couplings on all the other cars of that train,
and from the tender to the first car, were what kind?
A. Antomatice couplers,
(). This, then, was the only draw bar coupling on
that entire train?
A. Fee, aie.
~
Cross-eramination,
By Mr. Mason:
4). The coupling between the engine and tender is
in the nature of a permanent coupling, is it not?
A. Yes, sir,
(). And attached to the engine is a draw bar?
A. Yes, sir.
(). And that fits into the voke of the tender?
A. Yes.
(). And the pin is dropped down to bind those two
together?
Frank Shellhammer,. 33
A. Yes.
(). That is the pin you refer to?
A. Yes, that is the pin.
(). That pin, you said, was broken about in the
center?
A. About in the center of the pulling bar, ves, sir.
(). It was a clean break, as 1 understand you to
say ?
A. Yes, sir.
(). When you left Rutherford, how far after you
had left did the accident happen?) About how many
miles?
A. As nearias TP can tell, about thirty-four or
thirty five miles,
(). And had you made any stops between Ruther:
ford and the place of the accident?
A. Yes, sir, | did,
(). Had vou left any cars off?
A. No, sir.
(). Those were through cars, | understand?
A. Yes, sir, the same cars that we had on leaving
Rutherford,
Q). What was the character of the track that you
ran over from Rutherford to the place of the aecident,
so far as grades are concerned?
A. Well, the track varies, up grade, down grade
and level.
() And what was there from the time you left
Rutherford and until you felt the air go on immediately
before the accident, that indicated anything wrong with
any portion of your train.
A. There was nothing whatever.
(). Wad there been any pulling motion on your
train at all?
A. No, sir.
(). From your engine could you look back and
see Pennell in the tank?
A. No, you could not, unless he would be leaning
out on the right side.
34 Frank Shellhammer.
Q). And when you felt the engine pulling away,
and when vou looked back, could vou see the tank at
that time?
A. T could see it making an opening between the
engine and the tender,
4). But vou could not see in the tank?
A. No, T could not see in.
(). About how far did the balance of the train
nove after your engine before it stopped?
A. According to indications it must have moved
four car lengths, and then a tender length.
(). That is to say, when vou got back and found
Pennell he was lving between the two rails under the
front truck of the fifth ear Is that right?
A. Yes, sir,
(). And you stopped your engine as soon as vou
saw the train was under control by air?
A. As soon as the train stopped T left the engine
come closer, ves, sir,
Re ine ct-ea amination,
iy Mr. Demnine:
(). Did vou look at that easting underneath the
tank or tender, where the pin comes down from the
top, and the bottom is held by a casting there? Did
you look at that?
A. That is what vou call the voke where the pin
voes through.
(). You call it a voke?) Did you look at that?
A. The voke was all right.
(). That was all right?
A. Yes,
(). Was it worn at all?
A. No.
(). You are sure of that. are vou?
A. It did not show any signs of wear whatever,
(). By a clean break of the pin, what do vou mean?
Do vou mean broken straight across?
MQ
oe et
Frank Shellhammer. 30
A. Not actually straight across, because it was not
a straight break. It was kind of a slanting break, but
it was a solid break. The iron was solid.
(). You say the iron was solid?
A. Yes, sir.
(). That is what you mean by a clean break?
A. That is what | mean by a clean break.
(). You say now the train was going about fifteen
miles an hour?
A. Yes,
(). Do you remember seeing me in Tarrisburg and
telling me it was twenty?
A. No, sir, |-did not tell you anything of the kind,
if vou recollect,
Q). You think it was fifteen?
A. Yes, sir.
() At the place where vou were running, whit
was the grade?
A. Ht was practically level where the accident lap-
pened.
(). Level grade?
A. Yes.
Q). And do you reeall about the roadbed there?
Was it an ash roadbed?
A. Yes, sir, an ash roadbed.
Q). And were vou on a straight track or a eurve?
A. Itisa slight curve where the accident occurred.
(). A slight curve? To the right, to the left?
A. To the left.
(). Had the rear portion of the train gotten on that
curve vet?
A. The rear portion was on the reverse curve.
(). The reverse curve?
A. Yes.
(). A compound curve?
A. Yes, sir.
(). That is, the rear portion was going this way,
and the front was going that way (indicating) ?
RRA. Pe AAAI Tait TD MRI REDE A: BDO I VE A me oy aE riehieieeintiaieens
Morris K. Walley.
A. Yes.
(). Forming slightly a letter S?
A. Yes.
(). Is that right?
A. Yes, sir.
Morris K. Watney, having been duly sworn, was
examined and testified as follows;
By Mr. Demaina:
(). Where do vou tive.
A. Harrisbure.
Q. And the street number?
A. 1415 Swatira Street.
(). What is vour business?
A. Conductor; freight conductor,
(). On what road?
A. Philadelphia & Reading.
(). How long have vou been with them?
A. About eight vears,
(). How long have vou been conductor?
A. Almost seven vears, between six and seven.
Q. You were the conductor of Pennell’s crew ?
A. Yes, sir.
(). Will vou tell us first how long vou had known
Mr. Pennell?
A. To had known him possibly a year and a half
before the accident.
(). What kind of a man was he with regard to his
health?
A. As far as T know, he was healthy.
(). Was he a large, strong man?
A. Yes.
Q. With regard to his habits, was he industrious?
A. Yes, sir.
Q. Was hea man of good habits?
A. Yes, sir.
Q. Do you recall the time of this accident?
RN a tet MO DALE ODEO TEER . rere) aN, nee
Morris K. Watley. 37
A. Yes.
(). Just tell the Court and jury in your own way
what vou know about it.
A. We were going along. We had left Rutherford
about 4.50 that morning.
() December 31, 1911?
A. Somewhere from 4.30 too o'clock. Everything
had moved along in the usual way until the accident oc-
curred about one mile east of Moore's Mill.
Q). You were going from Rutherford to where?
A. To Hagerstown, Maryland.
Q). The whole train bound to Hagerstown?
A. Yes, sir.
Q). Tell us what vou know about the accident,
A. That is about all PE know. Thad ridden in the
caboose from Rutherford to the point of the accident.
When we went up around there we had made the usual
stops that morning—stopped for water and stopped
at the Hall stops. When we came to that point, as a
matter of course, the first thing | looked out to see
What was the trouble, and could see no trouble along
there. The brakeman wot off at one side and T had
started on the other side, when [heard the brakeman
say that the engine had parted and the fireman was
underneath it.
(). What first called your attention to it?) The
stopping of the train?
A. The stopping of the train, ves, sir,
(). You were in the cuhoose?
A. Yes, sir.
Q. Then what did vou de, come forward to the
engine?
A. Yes, sir.
(). And you were among those who found Pennell?
A. No, sir, I did not find Pennell. | did not get
there until after they had taken him out from under
the train,
Q. Did vou examine the couplings there at the en-
vine?
| el CER CE ee Ree NE ORD eee eee ge ee ene
=
2B
3S Morris K. Walley.
A. At the engine?
(). Yes. Did you look in to see what had happened!
A. Yes, sir.
Q. What did vou find had happened?
A. The tank pin had broken— the pulling bar pin
in the tank end had broken.
Q). And that allowed the engine and tender to sep
arate?
A. Yes, sir.
(). Had anything else up there broken?
A. No, sir; there was nothing broken except the
engine and tank were broken apart.
(). That coupling between the tender and the en-
gine was an old draw bar and pin coupling?
A. Yes, sir,
Q. Was that the ouly coupling of that class on that
Whole train?
A. The only coupling of that class?
(). Yes.
A. Yes, sir,
(). What were the other kind of couplings?
A. Automatic couplings.
Q. They were all automatic?
A. Yes, sir.
Q. Exeept that?
A. Yes, sir.
Q. What caused that coupling to break? What
Was it that put the strain upon it?
A. The air hose parted in the train, causing the air
to apply the emergeney and it broke the pin between
the engine and tank.
Q. Where did the air hose part?
A. Between the first and second car from the ca-
boose,
(). The first car from the caboose and the second
car from the caboose parted from the air hose?
A. Yes, sir.
Q). That would he the forty-fourth car and the
forty-third car?
Morris K. Walley. , 39
.
-
. Yes, sir.
~ Have vou the numbers of those cars?
A. No, sir, | have not.
(). Did vou bring vour train book with vou?
A. No, T have not.
Q. LT subpoenaed vou to do it, didn’t 12) Did vou
vet it?
A. Yes.
Mr. Mason: | can give vou the numbers if
you want them,
Mr. Demaine: | have the numbers. You can
see if those are the numbers.
Mr. Mason: Tf vou have the right numbers
1 am willing to concede they are the numbers,
~
—
By Mr. Demnuine:
Q. Would vou reeall those numbers if [ read them
to vou? 83224. Is that one?
Tur Courr: Is that of any consequence
whatever?
Mr. Demuine: Possibly not.
By Mr. Demaine:
Q. Did vou examine those couplings yourself?
A. No, sir, T did not.
Q. You sent someone else back?
A. After the accident T sent the brakeman back
from Moore’s Mill and we put the train away with the
engine following.
Q. How do vou mean ‘tput the train away’?
A. Shoved it up into the siding at Moore’s Mill.
(). Who shoved it up?
A. The following train.
Q. Do vou mean the engine muneoupled from the
following train?
A. Yes,
(). And pushed vour train into the siding?
A. Yas.
te te PACA DF t Ed Lent lee. CRs ee TS
+) Morris K. Walley.
e
(). You could not use vour own engine?
A. No, sir.
(). Where was that train made up?
A. At Rutherford.
(). Did vou find all the automatic couplings intact?
A. Yes, sir.
(). After this accident?
A. Yes, sir. ”
(). No other coupling had broken except the draw
bar and pin?
A. That was the only coupling.
(). Did vou examine that pin to see whether there
were any defects in the pin that broke at the tender?
A. T saw the pin, ves, sir.
(). Well, what was its condition?
A. It was a clear break, a clean break.
Q). Straight across?
A. Well, not) directly straight across. Almost
straight.
Q. What became of that pin?
Mr. Mason: We have got that.
By Me. Denia:
Q). What did yon do with the pin?) To mean the
crew?
A. We left it with the engine.
Q. What part of the engine?
A. The upper part of it was in the tank. If Tam
not mistaken, the lower part would drop out and it was
put on the front of the engine.
(). Did von examine the other part of the coupling?
A. Yes, sir,
(). The draw bar?
A. Yes, sir.
(). What was the condition of that?
A. The draw bar was all right. The draw bar was
intaet.
(). 1 think vou said vou did not examine the eoup-
ling or the air hose; you, personally ?
~ newly
Pinna 2006 8 RAE AS ALS CA EME ES Seal tre
Morris K. Walley. 41
A. No, sir, T did not examine it.
4). You yourself do not know what caused that air
hose to part, do vou?
A. No, sir.
Cross-exramiination,
By Mr. Mason:
Q. At the point between the forty-fourth and
forty-third ear, where the air hose had parted, the cars
had not separated?
A. No.
(). The cars were coupled together?
A. They were coupled together, ves.
(). And there were no couplings on that train hae
separated at all?
A. No, sir.
(). Your caboose was at the tail of the train, was
it?
A. Yes, sir.
Q. And when you went up to the front vou found
that the pin in the tank had been broken clean and the
engine drifted away?
A. Yes, sir.
(). In order to put the engine in on the siding you
vot the engine from the following train and coupled up
and pushed it to Moore’s Mill?
A. Yes, sir.
(). Were you there when they coupled the engine
up to the engine and pushed it in?
A. No, sir, 1 was not.
Re-divect-examination,
sy Mr. Dem™ine:
(). What kind of a roadbed was it there?
A. Practically level at that point.
(). I mean the composition. What kind of ballast
was it?
42 Norman ©, Shover.
A. It is an ash ballast.
(). Ash ballast?
A. Yes, sir.
(). Not small stones?
A. Well, ash and cinder ballast, | should say.
(. Ash and cinder?
A. Yes,
Q). And do vou agree with the preceding witness
that the rear of the train was on one curve and the
front on the other?
A. Yes,
(). A compound curve?
A. Yes.
Re cross-crani imation,
By Mr. Mason:
(). What kind of curves were they : Were they
slight eurves, or mneh of a eurve?
A. They were not very sharp curves, and with
forty-four cars the engine is around one as the eaboose
is coming around the other.
(j. Sort of a slight thin letter S?
A. Yes, sir.
Norman C. Suover, having been duly sworn, was
examined and testified as follows:
By Mr. Demoina:
~
). Where do vou live?
\. Harrishure.
). What street?
\. 348 Neetarine Street.
c
N
c
~
Q. What is vour business?
A. Flagman.
Q. For what road?
A. Philadelphia & Reading.
). How long have vou been a flagman?
~
seg
Norman (. Shover. 45
A. Two vears. PT have been examined that long.
Lhaven’t been flagging that long.
Q. You have been a brakeman part of the time,
have vou?
A. Yes, sir.
Q). You were a flagman on this train where Pennel:
was killed?
A. Yes, sir.
(). Where were vou at time of the accident
A. Sitting in the caboose.
J). The conductor was there, and who else?
A. The brakeman.
. Which brakeman?
. The middle brakeman.
». That is whe?
A. Fessler.
Q). At the time of the accident, what was the first
vou knew about it?
AL The only thing | knew, the brakes went into
emergency and | got off and the conductor and brake-
man went up: Twent back to protect the rear end.
Q). They went up to the engine?
A. They went up to the front end, ves.
Q). And vou walked back to flag the following
train?
A; Yea, sir.
() At that time did you know what caused: the
train to stop?
A. T did not.
(). How soon after that did vou find out?
A. L did not find out until the brakeman came back
and told me.
Q). Which brakeman told you?
A. Fessler.
Q. What did you do then?
A. He eame back and explained what they were
voing to do, to hold that engine up behind us and shove
the train up to Hiuntsdale and pull it back on the east-
44 Norman C. Shover.
ern siding. He came back and told me to eut the engine
off behind us and shove the train to Huntsdale and
pull it down into the eastern siding to Moore’s Mill.
Q. When did you know what was the cause of put
ting the air on the train?
A. After the brakeman came back and told me,
Q. He told you about it?
A. Yea.
Q. Then what did vou do?
A. We coupled the air hose up between the first
and second car from the rear end.
Q. You walked up to the last car and the next to
the last car and looked in there, did you?
A. No, I did not look in there.
d. Didnt vou go up and look at it?
A. No; the brakeman coupled the hose up).
’. You went up, too, didn't you?
A. No.
d Didn't you go up there?
\ No, sir.
Q. Didn't vou look at that coupling on that air
hose?
A. No, sir.
(). You remember seeing me, don’t you?
A. T remember seeing you.
Q. Didn't you tell me that you looked at the coup-
ling on that air nose?
A. No, sir; vou asked me if the air hose was worn.
I said there may have been, and 1 said there may have
been too much slack in the drawhead to cause it. That
is the statement I gave you.
Q. Didn't vou say the air hose was worn?
A. No, sir.
(Q. And in your opinion the draw bar had too much
slack there?
A. No. You said, ‘‘Was the air hose worn?” [|
said, ‘There may have been.
(). You did noi see the air bose yourself?
Norman C, Shover. 45
A. No; the brakeman coupled the air hose up-
Fessler,
Q). Didn't you look at it yourself?
A. No, sir.
(). That is whet you say now! :
A. That is what | do.
J. You did not see that at all at any time?
Tur Cover: He has said that seven times
now, Mr. Demming. Do not ask him to say it any
more,
by Mr. Demuine:
’. Do vou know what caused that air hose to part?
A. I do not.
J. Where was that air hose put together?
A. At Moore’s Mill; east of Moore’s Mill.
J. In the first case. Where was tie train made up?
A. At Rutherford.
d. There is where the air hose was coupled?
A. Yes, sir; there is where it was coupled, | guess,
as far as | know.
(). You did not see the coupling apparatus between
the locomotive and the tender?
A. No, sir.
4). You don’t know what broke up there?
A. No, Sift.
Cross-coaiuiwation,
By Mr. Mason:
(). You snid to Mr. Demming that the air hose was
coupled up in the Rutherford vard?
A. Yes, sir.
Q). Who coupled it up, do vou know!
A. Tlon’t knew. T don’t mind whether they were
coupled up or whether we coupled them up.
Q. When you got the engine from the train that
Was following you to couple up to the rear of your
train, it was then pushed on ahead and put in on the
siding at Moore’s Mill, was it?
46 Norman C. Shover.
A. He pushed it up to Huntsdale and pulled it
hack on the eastern siding at Moore’s Mill.
Q. About how far is Huntsdale, do you remember?
A. Well, it is about a mile. | guess, or more.
Q. Then vou brought it back to Moore’s Mill?
A. Yes, sir.
(). When vou pushed it and pulled it back was the
air hose coupled up avain?
A. Yes, the air hose was coupled up. Fessler
coupled the hose up.
Q. While vou were there?
A. No, | wasn’t there at the hose.
Q). Were vou on the train as it went up to Hunts
dale and back again?
A. Yes; Twas stationed about five or six ears up
When he started to shove up.
. Was there any trouble with the air lose going
up to Tuntsdale and baek to the siding at Moore's
Mill?
A. No, sir.
(). After the emergeney was applicd do L under
stand you to say that vou got off the caboose and went
hack and did not make any examination of the train
yourself?
A. No, T did not. TP went back to protect the reas
end.
Re-divect-e.s amination.
Dv Mr. Deaaina:
(). Where did vou make an examination?
A. At Rutherford. Everything was O. Kk. leaving
Rutherford.
Q). Then it was all coupled up?
A. Yes, sir: everything was coupled up leaving
Rutherford.
(). You did not couple the air up vourself?
A. PE won't say whether [did couple it or not.
(). You don’t remember tiat?
A. [don’t remember that.
PRD ae
Norman C. Shover. 47
Q). You said in answer to Mr. Mason that there
was no trouble when the train backed on the siding
with the air hose?
A. There was no trouble after it was coupled up
and pushed up.
Q. The engine did not couple up the air hose,
did it?
A. Sure. He had to couple the air to the cab and
run through the train to shove the train up.
Q). Did the engine couple up to the air hose?
A. No, T coupled the air hose up on the engine, an]
the brakeman coupled it up between the first and see-
ond car. | stationed myself about five or six cars from
the rear end and looked for a signal going around
those curves.
(). With the air hose coupled on, that engine then
pushed the train on to the siding, didn’t it?
A. It pushed it up and pulled it in the siding.
Q. That is, pushed it up until the engine got clear
of the switch end then it eame back on the siding with
the train?
A. Ran it back in the siding, ves.
Q. You mean during that interval there was no
further trouble with that air hose?
A. No, sir. .
Re-cross-eramination,
sv Mr. Mason:
Q. When you said you had made an inspection at
Rutherford, did von make an inspection yourself of the
train before you took it out?
A. Me and the middle brakeman.
(). You and Fessler?
A. Yes, sir.
Q. When the engine behind vou came up and
coupled up to the train to push it up to Huntsdale, |
understood you to say that you coupled up the air hose
F 48 Carl H. Fessler.
=
2 to the engine and Fessler coupled it up between these
two cars?
A. Yes, sir.
Cart HH. Fesster, having been duly sworn, was ex-
amined and testified as fellows:
sv Mr. Deminea:
Q. Where do vou live?
. Vermoyne, Pennsylvania.
Cumberland County?
Yes, sir.
What is vour business?
Brakeman,
Kor the Reading road?
. Yes, sir.
Were vou the brakeman on this train?
. Yes, sir.
What do vou know about the accident?
. Well, after leaving Rutherford, after inspect-
ing our train, and making several haul stops along the
road, the brakes went into emergency at Moore’s Mill.
At Moore’s Mil! the brakes went into emergency and
we inspected the train there.
(). Where were vou at that time? -
A. In’ the caboose.
(). The first vou knew, T suppose, was when the
train began to stop?
A. Yes, sir.
(). Then vou went out to find out what was the
cause for it?
A. Yes, sir.
(). Is that right?
A. Yes, sir.
(). Where did you go?
A. Went up along the right side of the train.
Q. Up to the engine?
A. Yes, sir.
~
~
~
. —™ » . ~~ -* . .
Oe Oe Ow OE we Ow
Carl HI. Fessler. 49
Q. You found out what was the trouble up there,
did vou?
A. Yes, sir.
Q. IT suppose vou examined the coupling there
and the broken knuckle between the engine and the
tender?
\. Yes, sir, | did.
. Did vou see what was broken?
~ <OR,. mar
(). What was it?
A. The pulling bar pin on the tender,
(). Did vou look at the broken pin?
A. Yes, sir: LT examined it.
(). What did vou do with the pin?
Q
A
A. 1] threw it on the front of the engine— the lower
part of if.
(). Was that the last vou saw of it?
A. Yes, sir.
(). You don’t know where it is now?
A. No, sir.
Was it?
A. TL think it was the latest.
(). It was a draw bar and pin, anyway?
A. Yes, sii
(). What other couplings were on that train be-
sides that draw bar and pin?) What kind of couplings
had the other cars and the tender and the locomotive it-
self?
A. 1 don’t quite understand you.
(). You say between the tender and the locomotive
was the draw bar and pin coupling?
A. Yes, sir.
Q. What other kind of couplings were on that
train besides that?
A. Different couplings.
Q. With regard to the draw bar and pin. Was
there any other draw bar and pin coupling on that
whole train beside that?
Q). That was an old-fashioned draw bar and*pin,
~ ema
. ™
i a0 Car! IL. Fessler.
a
A. That was the only one,
Q. The others were automatic couplings, were they
not?
A. Yes, sir.
Q. Was there any other coupling broken or given
in the accident, with the exception of that draw bar
and pin?
A. That is the only one | know of.
(). You examined the whole train, did you not, and
went under it?
A. Yes, sir.
(). The conductor sent vou back to couple wp this
air hose, did he not?
A. Yes, sir.
Q. What did vou find when vou got back there bhe-
tween the forty-fourth and forty-third ears?
A. We coupled the engine that was following us to
our train, and after turning the air in from the engine
I discovered there was an air hose parted between the
next to the last and the last ear.
(). Was that the cause for the train stopping, tho
air going on the train?
A. T think it was.
(). And that was the reason why the strain was put
upon the locomotive, was it?
A. LT think so.
(). Which caused this pin to break?
A. Yes, sir.
(). Did vou look at that air hose?
A. Yes, sir.
(). Did vou put it together again?
A. Yes, sir.
(). What was the condition of the couplings on
that air hose?
A. O. K.; T think so.
Q. You think so?
A. Yes, sir.
(). Were they worn?
Carl H. Fessler. ol
A. No, sir.
(). Did vou examine them to ascertain whether or
not they were?
A. No; I did not examine them closely.
(). You did not examine them closely?
A. No, sir.
Q. You don’t know whether they were worn or
A. TE don’t think they were,
(). You did not examine them to ascertain?
A. No, sir.
Q. You coupled them up and then went away?
A. Yes, sir.
Q. Was there absolutely any explanation around
there why that air hose should come apart that vou
saw?
A. No, sir.
Q). Did vou look at the draw bars on the couplings
on those two curs?
A. No, sir: I did not.
Q. You did not examine them?
A. No, sir.
(. Did anybody else do it, that vou know of?
A. No, sir.
Cross-ceaamination,
Bv Mr. Mason:
(). As | understood you to say to Mr. Demming,
vou made an inspection of your train before vou left
Rutherford?
A. Yes, sir.
(). What part in the inspeetion did) vou play?
What did vou do?
A. LT examined the front part of the train.
(). What was vour inspection? What did vou do?
A. Well, we looked over the air hose and the coup-
ling,
Q. From the time vou left Rutherford until the
52 Carl HL. Fessler.
time of the accident was there any trouble at all with
the air hose or couplings anywhere?
A. No, sir.
(). After you coupled up the engine that came up
to the rear of the train and started the air in from the
engine, | understand that vou saw it escaping from be
tween the car next to the caboose and the car in front
of that?
A. Yes, sir.
Q. Then who went up and coupled up that air
hose? You?
A. I did.
Q. In making the coupling of that air hose was
there anything about the coupling that indicated any-
thing wrong with it?
A. No, sir.
Q. After it was coupled up, what was done with
the air from the engine?
A. Turned into the whole train.
Q. Turned into the whole train except the engine
of your train?
A. Yes, sir,
Q). Then what was done with vour train?
A. It was shoved to Huntsdale. From there it
was pulled in the eastern passing siding.
(). During the time that it was taken to Huntsdale
and brought back to the siding at Moore’s mill, was
there any trouble with the air at all?
A. No, sir.
(). Any trouble with any of the couplings on the
train?
A. No, sir.
Re-divect-examination,
By Mr. Demnina:
Q. That is, during the time that this engine was
putting on freight on the siding there was no further
trouble with the air hose? That is what you mean, is
it not?
q
a
4
§
Arthur Py Lensel. 53
A. Yes, sir.
Q. That is all vou know about it?
A. Yes, sir.
Arructr P. Wexsee, having been duly sworn, was
examined and testified as follows:
By Mr. Demaine:
(). Where do vou live?
A. Harrisburg.
(. What street?
A. 44 Balm Street.
(). What is vour business?
A. Brakeman?
@. On the Reading road?
A. Yes, sir.
(). Were vou brakeman of this crew when Pennell!
was killed?
A. Yes, sir
(). Tell us what you know of the accident.
A. Well, | was on the left-hand side of the engine,
and the first thing T felt the brakes applying, and |
turned around and saw the tank swaying away from
the engine, and then | heard the engine man release
and ran away with the engine. When the engine came
to the siding he held his engine and | got off and found
the man,
Q). Did vou see Pennell at all at the time of the
accident?
A. Afterwards.
(). You saw him afterwards?
A. Yes, sir.
(). You did not see how he fell in between?
A. No, sir.
Q. The engine parted at the place where he was
standing, didn’t it?
A. 1 judge he was there, ves, sir.
(). That was his place, as a fireman?
wi “rascal
o4+ Arthur P. [ensei.
A. Sure; ves, sir.
(). You were in the cab of the engine itself at the
time?
A. Yes, sir.
(). Riding on the opposite side from the engineer
or on the same side?
A. On the opposite side. On the left hand.
(). Could you tell from that position whether or
not the engineer put the air on?
A. Yes, sir; T could,
Q. Did he do it or not:
A. He did not.
Q. Was the air coupled up to the engine at the
time of the accident?
A. Well, it sheared away when the accident oc
curred,
Q. Did vou just proceed on?
A. Yes, sir; certainly,
(). Could you tell whether or not when the air went
on the rest of the train, whether it went on the engine
too?
A. When it went on the rest of the train?
(). Yes. Whether it went on the wheels of the en-
gine at the same time?
A. Certainly; ves, sir.
Q. And yet the engine pulled away?
\. Well, he had released it.
d. THe released the air?
\. Sure,
~
d. You saw this gap appearing between the en-
gine and the tender?
A. Yes, sir,
Q. And the air was on the engine at the same
time?
A. He released it then.
Q. He released it afterwards?
A. Sure,
Q. Did vou go back?
a
2 vt eee
~~
.
wt
M. F. Wise.
A. Yes, sir.
(). Did you examine this coupling between the en-
gine and the tender?
A. No, sir.
(). You did not examine it to see what broke?
A. No, sir.
(). You don’t know what broke?
A. IT know what broke, certainly.
(). What was it?
—o.
-_e
c
A. The coupling pin.
Q. A big coupling pin, was it?
A. Yes, sir, ‘The pulling bar pin.
(). Did vou examine that break?
A. No, sir; I did not.
Q. You don’t know what kind of a break it was?
A. Ne, sir.
Q. Did vou go back to see this air hose between the
last car and the next car to it?
A. No, sir.
Q. You did not see that at all?
A. No, sir.
Q. Do vou knew who did see that?
A. I don’t know anything about that back there,
the rear of the train.
Q. Do you know who coupled the cars in the first
instance in the Rutherford vards?
A. No, sir; IT do not.
Q. They were the same ears that you started with
from Rutherford, were they not?
A. Yes, sir.
(No cross-examination. )
M. FL Wiser, having been duly sworn, was exam-
ined and testified as follows:
By Mr. Demnine:
(). Where do you live?
Fea a ae UM bd eles Asis ih RTT
a6 M. F. Wise.
\. 327 Cresson Street, Harrisbure.
). What is vour business?
A. Wreck master.
Q. You are the foreman of the wreck crew ?
A. Yes, sir.
). Do you remember the date of this accident?
A. Yes, sir.
J. You went down there with the wreck train?
a —.
(). When you went down there what did you see
and what did you do?
A. We found the train on the eastern siding, and
we got the engine at the western end of the western
siding, and we backed it up and got the tender at the
western end of the eastern siding, and coupled it up,
and came to Moore’s Mill, and we got word to come
hack and examine the air hose on the last two cars. So
we went on up throngh the eastern siding, and coupled
up the rear of the train with our engine, and tried the
air on those last two cars, and set the brakes and they
worked all right. Then we stretched them up to see
if there was any trouble with the couplers, and |
noticed when the conpler pulled apart that there was a
pin broken. We stretched the couplers apart to see
if there was any trouble, anything in the vokes or any-
thing, and we didn’t see anything.
(). You did not see anything?
A. No, sir.
Q. At that time when vou tested them, how much
air was in there on the cars?
A. The train line pressure is 70 pounds.
(). Do you know whether or not those reservoirs
had been filled up?
A. Well, we waited about five or seven minutes, |
suppose, anyhow.
Q. You waited that time?
A. Yes, sir.
(). And you coupled them up?
SPOTS ON PAGE
WT eet TEI ee PND n oT TRS ek AT A hs AYA Ah : RO RE ae
M. F. Wise. a7
A. Yes, sir.
Q. You looked at those couplings of the air hose,
did you?
A. Yes, sir. TP coupled those myself.
Q). Is it not true that one or both of them were
worn?
A. No, sir; not to my recollection,
Q. Just take one of them. Was not one of them
worn?
A. Noysirm No leak at all whatever.
(). Tam not talking about a leak. But from your
evesight, before you coupled them up.
A. No, sir, T did not see any defect of any kind.
Q). Did vou examine them to find out whether or
not they were worn?
A. Well, not any more than coupled them up. 1
picked one up with my right hand and one with the
left, and coupled them together, the same as we do.
Was not one of them worn?
No, sir; net to any extent at all.
(). Well, to some extent it was worn?
A. Yes.
(). It was worn?
A. But there were no holes or anything worn in it.
It was all practically a new hose.
Q. Lam not talking about the hose. Tam talking
about the coupling part itself.
A. The connection part?
Q. Yes.
A. No. I did not notice any defect.
Q. You did not notice that?
A. No. There was no leak of any kind, and |
worked them up and down to see if there was anything.
Q. But one of the couplings was somewhat worn?
A. Yes, sir, That had been on for some time.
Q). Do vou know what it was that was worn? Was
it not the collar that was worn?
A. No, sir.
().
A.
Ber Se Ses |
ies
i
?
oats Coe Satee
DS M. F. Wise.
Q. Which part was it?
A. Well, LT mean the air hose had been worn some
months, vou know.
(). Lam speaking about the couplings.
A. Oh, the couplings?
Q). Yes.
A. No. I did not notice any wearing about them.
Q. Didn't you notice that one of those couplings
Was worn?
A. No, sir. T saw no air leaking or anything that
l saw.
(). You are speaking abont when you coupled
them together, and then you stood and listened to hear
if there was any air?
A. Yes, sir; and worked them up and down to see
if there would be any side play, and I did not find any.
(). Before you put the couplings together, did vou
look at the coupling parts at all?
A. Yes, sir. The gaskets?
. Yes.
A. Yes; the gaskets.
(). Was not one of those couplings worn around
the collar?
A. Not to my recolleetion.
(). Do you remember distinctly or not?
A. Yes, sir.
(). What did you mean awhile ago when vou said
one of them was worn?
A. Well, that had been on for some time. One
had been. 1 don’t know how long. I did not look to
see the date7 Or anything.
(). Was that a Westinghouse or a—
A. No, sir; | did not notice that.
(). You did not notice that?
A. No, sir; I did not notice what the name was, or
anything of that kind.
Q. You coupled them up, and vou did not hear
anything escaping?
we las TS eh eM i OY A ak ip RAN OR a RD SE
M. F. Wise. a9
A. No, sir.
Q. Is that a fair test, to couple them up, and then
just listen?
A. Yes, sir. I worked them up and down to see
if there was any play.
Q. Shouldn’t you put in soapsuds or hold a toreh-
light up to make a full test?
A. You do that in the shop, when vou connect the
joints together,
Q. Is that the regular road test?
A. Not to my recollection, no.
Q. You did not test it that way?
A. No.
(). You simply tested it by sound?
A. Yes, sir.
(). That is right?
A. Yes, sir.
Q). It is an ash roadbed there, is it not?
A. Yes.
(. And a level track?
A. Yes.
Q. Did you examine the drawbars on those two
cars?
A. No. IT was walking up there to get the engine
and this tender, and [ noticed they had squeezed the
engine together. There was no Wear, or anything.
There was not much slack between the engine and ten-
der, because we had to shove the bumpers together to
get the pin down.
Q. | do not mean between the engine and tender.
I mean between those two cars where the air hose was.
FM No.
Q. You did not examine those drawheads?
A. Yes. I looked at the ones
Q. The drawheads?
A. The drawheads. Any more than the knuckles
were Worn on one, and the pin was broken in one coup-
ler.
WIP te mee et caw
'
Sayre ei
O* lth oe Seaeas
60 M. F. Wise.
The pin was broken?
A. Yes, sir, There was a pin broken. The pin
was found back on the road.
By Tire Covrr:
Q). You are talking of the pin up at the engine?
A. No. That car coupling pin. ‘The drawhead
pin.
By Mr. Deane:
That is in an automatie coupler
\ Yes, sit
. Did vou examine the drawheads of those cars
to see ve there was any unusual play there?
A. Play, vou mean, between the knuckles?
Q). Yes. So as to extend the space between the
ears When they were in motion?
A. No. We did not pull it too far.
Did vou examine it?
A. Yes, sir, We stretched it up with our engine
the whole train, They were very good cars,
Then vou left them alone?
A. Yes, sit
Cross-cramination,
Bv Mr. Mason:
As [understand it, vou vourself made an ex
amination of this air hose between these two ears?
A. Yes, sir. | was standing between the two ears.
(). And you coupled them up?
A, Ves, si’.
Q. And you moved them up and down to see the
A. Yes, sir. Two or three times.
Q. Before the engine was coupled up and the air
Was turned into the whole train?
A. No. Just those two ears.
After vou got the full air line pressure, the
regular 70 pounds pressure, put on those cars, you
stretched them to see the play?
— Pe te ee BA RESO EOE SIL IONE TS BEG MG TOE KIER IS, Ue TG RS | a en eS Sea Ee
James EK. Mellon. 61
A. Yes, sir; and to see whether there would be any
effect or any trouble.
Q. And there was no unusual play between the
two couplers?
A. No, sir.
(). Not enough to cause any trouble at all with the
air hose?
A. No, sir; not at all,
Q. The air hose retained its position after that test
Was made?
A. Yes, sir.
Q. Did you go with the train up to the siding, or
Was the train on the siding when you got there?
A. Phe train was on the siding.
James KE. Menton, having been duly sworn, was
examined and testified as follows:
By Mr. Dewaine:
(). What is vour business?
A. Mechanical engineer,
Q. Just tell the Court and jury what experience
vou have had as a mechanical engineer,
A. My first experience consisted in an apprentice-
ship ina machine shop, to learn the machinist’s trade,
the Nixon Locomotive Company in Seranton. 1 was
promoted from the shops to the drawing offiee, and af-
ter my apprenticeship | left the Nixon Company and
went to work for the Lackawanna Railroad. | was
With them in the capacity of a draftsman, chief drafts-
man, and mechanical engineer for a period extending
over twenty vears,
(. Were vou investigator for them of wrecks?
A. Yes, sir.
Q. The causes of wrecks and things of that sort?
A. Yes, sir.
(. Where are vou now?
62 James BE. Mellon.
2 ‘. With the American Engineering Company, in
5 this city.
: (). Are you acquainted with couplings of air hose
and couplings between cars, railroad ears, and locomo-
‘ tives and tenders?
% A. Lam.
j (). Will you deseribe the parts of couplings be-
2 tween air hoses,
(Couplings produced. )
\. These are the couplings of the air hose.
(). Just demonstrate how that works.
(Witness demonstrated couplings. )
\. The gaskets, which prevents the air from es-
capine, are set in grooves inside of this casing.
(). Gaskets are pieces of rubber?
A. Yes, sir.
(). To make them hold tight together?
A. Yes, sir.
(. And the rubber hose is attached?
A. Rubber hose is attached to the ends and ex-
tends from this point here (indicating) to the cars on
each side,
(). Those couplings are at the lowest point on
the loop of the hose?
A. Yes, sir.
(). Hanging between the ends of the ears?
A. Yes, sir.
(). Just demonstrate to the Court and jury how
those are coupled, in what position you have got to
bring the hose te couple them.
(Witness again demonstrated coupling. )
A. Slightly above a horizontal plane. Just about
say five degrees.
{). In other words, in order to get those couplers
coupled, you have got to bring tiiem up like this (indi-
cating) and couple them, and then you drop them
down?
James EK. Mellon. 63
A. Drop them down into position.
(). And they remain in that position down below?
A. Yes, sir, They are held together by the elas-
ticity or the compression of the rubber, acting upon
these flanges on the inside of the lugs.
Q). How is it possible—under what conditions is it
possible for that air hose to come apart after those
couplers have once been coupled and while the train is
in motion?
A. It is possible to come apart by vuleanizing of
the rubber, and drying out they become hardened and
shrink. So that the thickness of the gaskets decreases,
and while the surface may remain tight and the air not
escape to any appreciable extent, still the thiekness of
the gaskets decreases, and allowing the slackness to
occur bevween the flanges, making them more liable to
come apart. Then, these flanges beeome worn through
use and abuse. By ‘abuse’? | mean that conductors
and trainmen, not caring to get on their knees between
the cars to uncouple these knuckles, frequently they
will lift the coupling and signal the engineer to go
ahead and force those things apart by the cars separ-
ating. That wears and damages these flanges, and
each time that these are separated the knuckles receive
some damage, until in time it becomes very susceptible
to separation by any vibration or the breaking of the
draw-bars between the cars.
Q). Is it possible for that air hose coupling to
come apart if it is in good condition?
A. LT cannot see that it would, if it was in good eon-
dition, unless, as [ described, the coupler was lifted out
and the train separated.
Q. What coupler do you mean was lifted out?
A. The couplers of the train. The drawheads.
When they become worn they are susceptible to coming
apart, with some slight disturbance.
Q. With a slight disturbance?
A. Yes, sir.
| A TN TL os
4 James EF. Mellon.
(). If there was excessive play in the drawheads of
the coupling apparatus on the cars, would that have
any effect on them coming apart?
A. That would tend to separate them, if they were
hot worn.
4). You heard of the manner in which this accident
oceurred, described by the witnesses?
A. 1 did.
(). If those coupling parts were in good condition,
could they possibly have come apart in your opinion
in that accident?
(Objected to.)
(Objection sustained, )
(Exception noted for plaintiff by direction of
the Court.)
(). Is one of those couplers that vou have in your
hand there worn?
A. It is, to some extent.
(). The gaskets in those couplers that vou have
there are absolutely new?
A. The gaskets are new,
(). Those were just put in there?
A. Yes, sir.
(). Are the other parts worn outside of that?
4 A. Yes, sir.
‘ (). And that is what vou mean by the worn part of
the coupling, whieh would allow it to come apart?
2 A. Yes, sir.
; Q). Could those couplings come apart in any other
. Way possibly with that coupling properly hanging
down and the train in motion, unless they were worn,
or unless there was excessive play in the drawheads of
the coupling?
A. T can conceive of a condition where they would
come apart. Tf they were struck a violent blow at the
bottom, throwing them up in the air. But that is a
, mighty unusual condition.
4
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2
td
x
;
2
tre Pie ae
James EF. Mellon. 65
Q). Is that likely or prebable along a railroad
track?
A. No, it is not.
(). Outside of that, that is the only possible excep-
tion vou can think of?
A. That is the only exception T can think of.
(). Putting those aside for the moment, are you
familiar with the drawbar in the coupling apparatus
hetween the engine and the tender?
A. Yes, sir.
(). Is it any part of a fireman's duty to inspect
that or to know anything about it?
A. No, sir; it is not.
(). is it any part of a fireman’s duty to inspect
or know about the couplings of an air hose?
A. No, sir.
Q. At the present time is or is it not proper prac-
tice to have simply the drawbar and coupling between
the engine and tender?
(Objected to.)
Tue Covrr: You have not laid a proper
foundation for any such question as that.
By Mr. Demnine:
(). Is or is not the drawbar and the pin the only
connection at the present time required between the lo-
comotive and the tender?
(Objected to.)
(Objection sustained.)
(Exception noted for plaintiff by direction of
the Court.)
Q. Is or is it not proper to have as the only eon-
nection between the locomotive and the tender the
drawbar and the pin?
(Objected to.)
(Objection sustained.)
OR rt oi ow tc ee ee ee ee ee wee ek
66 James FE. Mellon.
Q. Are you familiar with the connections in use
at the present time on railroads between locomotives
and tenders?
A. Tam.
(). What are those connections?
Mr. Mason: Let us have his experience a lit-
tle bit more definite.
eee
$ sv Mr. Mason:
z (). What has been your experience in inspecting
# such connections?
: A. In designing of locomotives for twenty years;
& in inspection of locomotives at Baldwin’s, Dunkirk.
* and Schenectady,
; Q. For what roads?
: A. For the Lackawanna railroads.
: (). No other railroad?
: A. No,
(). Then all vou would testify to would he what
E Was the custom on the Lackawanna Railroad?
A. Well, as far as the application of different de-
Vices is concerned, Tam familiar with what other roads
use, through my studies and through an examination
of locomotives being built for other roads in these dif-
: ferent shops.
Mr. Mason: | am perfectly willing to have
him answer that question, with that qualification.
By Mr. Demaina:
Q). You are thoroughly familiar with the methods
adopted on all roads, are vou not, in the east?
A. Yes, sir.
(). Will vou tell us what those methods are?
A. In addition to the drawbar, they have on some
roads, namely, the Pennsylvania, two additional or
supplemental drawbars, what are called radial bars,
one on each side of the main or central drawbar, sep-
arate, so as to accommodate the curving of the loeomo-
tive around curves. Those two bars are of smaller di-
a SEE EE AT WR OER PR NED ENE Rue BOLL SAL Rae bus ORANGE te Sein
James EK. Mellon. G7
ameter than the pin and the main bar, and are ar-
ranged so that the two pins on the supplemental draw
bars or radial bars are about half of the area of the
main pin. On other roads it is almost standard prac-
tice, instead of the radial or supplemental drawbars,
to use chains,chains secured to the back heads or frame
heads of the locomotive, and hooked in with hooks into
the I-bolts through the sills of the tenders, one on each
side of the center,
Q. What is the purpose of those chains and radial
bars?
A. Incase of the failure of the main drawbar, that
they will take up the shock and prevent the separation
of the engine and tender.
(). In ease of the failure of the main drawbar and
pin?
A. Yes, sir.
Q. You are counting the pin connecting the draw-
bar as part of the main coupling apparatus?
A. Yes, sir.
Q. They should be sufficient to hold them together
if main drawbar gives?
A. That is correct.
Q. You say they are called safety chains for that
purpose, | suppose?
A. Safety chains.
Q. Which are the stronger, the automatic coup
lings or the drawbar and pin?
(Objected to.)
(Objection sustained.)
(Exeeption noted for plaintiff by direction of
the Court.)
(). You have heard it testified here that when the
wreck crew got to this point and examined these eurs
that the foreman of the wreck crew put the two coup-
ling parts together of the air hose and listened to hear
if there was any air coming out, and because he did not
eee — Wh EEN id SAE NARI PAB GLE IS DENN V8 Bi ELEN BR YN A hE TET
GS James E. Mellon.
hear any he thought they were in good condition. Is
that a fair test?
Mr. Mason: T[ object to that. That is not all
he said. That is not a fair representation of what
the wreck master said.
Tue Courr: No: it is not.
By Mr. Demnine:
(). You heard the testimony of the foreman of the
wreck crew?
A. Yes, sir.
3
%
3
.
5
4 (. Will you tell us, to determine whether or not
3 those couplings were in good condition, whether or
<
z not that was a proper test?
i (Objected to.)
A (Objection sustained. )
Q. As L reeall the facts, the wreck master testified
that he came there and he put the ends of this air hose
together, and he stood there and listened to hear if any
air was escaping and he did not hear any air. Now,
would that be a fair test of that coupler?
(Objected to.)
(Objection sustained. )
aebiceg
Q. Do you recall hearing the wreck master say
he tested it*in any other way except that?
(Objected to.)
(Objection sustained. )
Q. Tam reminded that the wreck master testified
that when he came there the train was on the siding;
that he put the air hose together, and he waited there
for seven minutes, and he heard no. air escaping.
Would that be a fair test?
(Objected to.)
Tue Court: IT really shall not rule on that
any more, Mr. Demmine.
Ao aeeaereanaaaaliemaieaaa SEO NA wl ie AO eT ™ PaO EGAN ARIES ANTES cic SSS NS 2
James KB. Mellon. 60
(Exception noted tor plaintiff by direction of
the Court.)
By Mr. DemMine:
Q. What would be a fair test to determine wheth-
er or not that coupling between the cars was in proper
condition?
(Objected to.)
(Objection overruled. )
A. As recommended by Westinghouse and other
air brake companies, and as used on nearly all roads,
if they want to determine whether the air is escaping.
That is the use of a torch or soap suds, placed around
the coupling. If the air is escaping the air will force
soap bubbles up through the gasket, or by the use of
the torch, if the air is escaping it will blow the flame off
at right angles.
(). Can you trust to your ear alone to determine
whether or not it is?
A. No, sir; you cannot.
Cross-eramination,
By Mr. Mason:
(. You have given us an expert opinion as to the
proper test. Did vou ever know of a soapsud test bhe-
ing applied by a member of a crew putting the air hose
together that had come apart, before he started his
train again?
A. L have known of tests to be made by air brake
inspectors.
Q. But after an air hose had come apart on a
train that was on the road to its destination, did vou
ever know of the test that vou have referred to being
applied before the starting of the train?
A. After a separation on the road?
(). Yes.
A. No; I did not.
70 Lawrence Weber.
Q). It is done in the shops where they have facili
ties for making those tests?
A. It is done on the road at inspection points.
Lawrence Weer, having been duly sworn, was
examined and testified as follows:
By Mr. Demnine:
(). Where do vou live?
A. Kast Riverton, New Jersey.
Q. What is your business?
A. Locomotive engineer.
Q. What roads have you been employed by?
A. Pennsylvania Railroad.
(). Are you familiar with the couplings on air
hoses?
2 A. Yes, sir.
Q. Will you tell us after the air hose is once
— coupled between ears and the train starts out on the
~ road, under what conditions it is possible for that air
hose to part?
;
2
a
§
:
4
:
:
K
Mr. Mason: | should like to have the privi-
lege of cross-examining this gentleman.
By Mr. Mason:
Q. You say that your capacity in service has been
that of an engineer?
A. Yes, sir.
Q. As an engineer for what road?
A. Pennsylvania.
(). Are vou employed there now?
A. No, sir.
Q. When did vou leave?
A. I left in 1911.
Q). How long were you emploved as an engineer?
A. In the neighborhood of eight years.
Q. What were vour duties as an engineer, insofar
as they related to air hoses?
TS eS A SNE a CE NL ALLE PER LUNES ELS 6
Lawrence Weber. 1
A. All the duties appertaining to air.
Q. As an engineer was it your duty to inspect the
air hoses on the train?
A. Yes, sir; on the engine. With the same coup-
lings.
(). The same couplings?
A. Yes, sir.
Q. The air hose on the engine is where?
A. On the front of the engine and on the back of
| the tender, and also between the engine and tender.
| (). On the front of the engine?
| A. On the front of the engine.
Q. And between the engine and tender?
A. Yes, sir.
(). And at the rear of the tender?
A. Yes, sir.
(. You say it was vour duty to inspect that air
jose?
A. Yes, sir; and all couplings of air hose on the
engine.
By Mr. Demnina:
Q). Before vou were an engineer, what were your
duties on the railroad?
A. Fireman.
(). Before that what were vou?
A. A brakeman.
Q). During those different employments did you
come in contact with air hoses and couplings ?
A. Yes, sir.
Q. Did vou have experience with them?
A. Yes, sir.
By Mr. Mason:
Q. Was it your duty as a fireman to inspect the
hose also?
A. No, sir; ] made it a habit, for my own knowl-
edge.
Q. That is to say, vou did something that the other
firemen were not accustomed to doing?
SS ie ha ate ABN a eeu
SEE SERRE SEER Se BNA SY IS ae eh Bis Cee a SPOT PID A DRM SD Nat oe eT
¢2 Lawrence Weber.
A. Yes, sir, It was just only for my own benefit
that 1 did it.
By Mr. DemMina:
(). As a brakeman was it your duty?
A. Yes, sir.
Q. After the air hose is once coupled between
ears, and the train starts out, running along the road,
under what conditions is it possible for that air hose
to come apart?
A. Well, there are a few ways for that air hose
coupling to come apart; namely, by wearing of coup-
lings, and also slackage in the drawhead, and also go-
ing around curves where the air hose would be a little
short, and that would cause them to separate.
: (). If they were too short?
A. Yes, sir.
Q). Those conditions that vou have mentioned—
you have mentioned three—are they normal conditions
or defects?
A. Well, two of them are normal conditions, and
one is a defeet.
Q). What do vou mean by a normal condition?
A. A normal condition is one that you are very
likely to find in a coupling at most any time, which
would cause the air hose coupling to separate.
Q). That is a defect in the air hose coupling, then?
A. Yes, sir.
Q). There must me a worn condition of the coup-
ling part, or too mueh play in the drawheads of the
couplings between the errs, or the hose too short?
A. Too short or coupled under the car too far.
Q. If the couplings on the air hose are in normal
condition, or are proper, without any wearing, and
they are properly coupled, and there is no give in the
drawhars, is there any possible way by which they
could come loose?
A. No, sir.
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a ——— aerate ee ee a ee eee sola
Lawrence Weber. i3
Cross-eaamimation,
By Mr. Mason:
(). I understood you to say that the play between
the couplers might eause the air hose to come apart?
A. Yes, sir.
Q. That would be only where the air hose was only
so short that when the cars separated it would pull the
coupling of the air hose apart, would it not?
A. No, sir. Running on gerade it would un-
couple.
(). | do not understand you, then. What do you
mean when you say the play between the couplers
would be such as to uncouple the air hose?
A. It would mean that if the two draw head coup-
lings had a certain amount of play in there, one of the
two of them, would cause enough give there to make
that air hose uncouple itself.
Q. That is, if the give was enough to be a strain
on the air hose?
A. Yes, sir.
Q. You heard Mr. Mellon testify that the way the
air hose hangs, in a sort of a half loop down below, a
blow, if it were hard enough on that, would knock
it up enough to uncouple the air hose. Do you agree
with that?
A. No, sir.
Q. You do not think Mr. Mellon’s testimony is
correet on that?
A. No, sir, The brake riggings would clear the
object out of the road before it would come in contact
with it.
(). Tam not asking if you ever saw an object hit it.
I am asking you whether vou agree with Mr. Mellon’s
statement that if there were something that did hit it. it
could uncouple the air hose?
A. IT could never say I ever saw that.
Q). Do you say it is so? Would a blow on that air
hose uncouple it?
TEE ORD OAL NIT Nd Wis ay UE > Sah te ELBE Ak a BADER: CO RIN ead IBA PABLO NOt a, Ae ay
74 Lawrence Weber.
A. From underneath?
Q. Yes.
A. No, sir.
< (). Isn’t that the way the air hose is uncoupled?
% It is lifted up and then uneoupled?
a A. Yes, sir; with the pressure taken off.
3 (). And if there was a blow that lifted it up,
4 wouldn’t it uncouple, as Mr. Mellon said it would?
& A. Not with the pressure on it. That is, if the
; train was going on its regular gait or on movement.
q (). You have never seen it happen?
$ \. No, sir.
oat
4). Will vou say that it conld not possibly happen,
as Mr. Mellon said it eould?
3 A. No; T could not say.
(). You could not answer that question?
A. T could not answer that question.
vel odtink
Re-direct-examination,
sv Mr. DemMina:
(). If the coupling parts are worn, as you have de-
seribed, just illustrate to the court and jury how those
things will come apart, without having to move far?
A. Here is a bar, | think, slightly worn, with new
gaskets in, There is not very much trouble at all to
separate them.
(Witness uncoupled couplers.)
Tue Witness: That has two new gaskets.
(). You are not lifting these up far, are you?
A. No, sir. [have not lifted them more than an
inch.
(). That is due to the worn condition of that eoup-
ler? ,
A. That is due to the worn condition of this one
coupler.
Mr. Mason: Please try that again.
(Witness coupled and uncoupled couplers.)
Be het ee oe) ee eis eer eee es DPE EN AMINE SENET ane AE MSA = Pel deh’, a
Charge of the Court. 7)
By Mr. DeMMING:
Q. Of course, you are not exerting nearly as much
strength as the train would pulling on it?
A. No, sir, and I am sick at the present time; not
in health.
Piaintire Rests.
Defendant’s counsel moved for binding in-
ey structions.
Defendant offered no evidence.
Counsel for defendant and plaintiff argued
the ease to the jury on behalf of the respective
parties.
Adjourned until Tuesday, April 16th, 1912, at
10 o’elock a.m.
Philadelphia, Pa., Tuesday, April 16, 1912, 10 a.m.
Present: Parties as before noted.
CHARGE OF THE COURT.
Hox. Joun B. McPuerson, J.
Gentlemen of the jury: [have no doubt you all
are aware of the fact that in actions of this kind, based
upon a charge of negligence, it is the duty of the plain-
tiff to establish negligence. It does not follow merely
because an accident has happened and some one has
been injuredthat the person charged with responsibility
is obliged to bear it, because if he has not been at fault,
of course, he cannot be obliged to bear the misfortunes
that have fallen upon another person. There are acei-
dents that are unexplained, as our experience almost
every day teaches us, the burden of which must lie
just where it happens to fall. The only way in which
such a burder can be transferred from the shoulders
oF
y
x
»,
+.
Lesiuhethdlt DOL te tae aS oe
Paras Hs
se heh Rs Ne
SE RAY SIE CRS > HEIN VR RRINNS. BRR WIG LES LEN MNS sine WOR ON EN
76 Charge of the Court.
of one person to another is because the other has been
at fault, and, therefore, the rule in the Courts, and the
rule of common sense is that where one person charges
another with liability for an injury it must be proved.
Now that is the rule here in this case. Of course, the
very first question in every such case is whether there
is evidence upon that subject which would support a
finding that the charge has been made out. Now |
have had these notes copied, and they were put in my
possession last evening, and [ have very earefully ex-
amined them, and, as it is my duty to do, in the first
instance Tam bound to say whether I think there is
evidence in the case to support the charge of negli-
genee that is contained in the plaintiff’s ease. All |
can say to you, and T need not trouble you with the
details upon that subject, is that T find nothing in the
case to justify the charge of negligence, that would jus-
tify me in submitting it to the jury. It seems to me.
as faras Tecan make out from what has been offered
in the case, an unexplained accident, one for whieh
there is no account that would support the charge of
negligence made against the defendant company, and
it, therefore, becomes my duty to instruct vou to ren-
der a verdict in favor of the defendant.
(Exception noted for plaintiff to the direction of
the Court to the jury to render a verdict in favor of
the defendant, by direction of the Court.)
The jury rendered a verdict in favor of the de-
fendant.
And thereupon, the counsel for the said Mary G.
Pennell, Adm., plaintiff, did then and there except to
certain rulings of the Court and to the aforesaid
charge and opinion of the said Court, and inasmuch
as the said rulings and charge and opinion, so excepted
to, do not appear upon the Reeord:
PRN Se SB SS MOS DY 2a OE DSU: pentti emetenednieen deat eaaeiioe ak Lae Oe a lie
Opinion. v4
The said counsel for the said Mary G. Pennell,
Adm., plaintiff, did then and there tender this Bill of
Kixeeptions to the opinion of the said Court, and. re-
quested the seal of the Judge aforesaid should be put
to the same aecording to the form of the statute in
such case made and provided. And thereupon the
aforesaid Judge at the request of the said counsel for
the plaintiff did put his seal to this Bill of Exceptions,
pursuant to the aforesaid statute in such case made
and provided, this 18th day of May, 1912.
Joun B. McPuerrson, (1. s.)
Judge.
MOTION AND REASON FOR NEW TRIAL.
Filed Apr. 19, 1912.
Counsel for the plaintiff hereby moves for a new
trial in the above ease, this, the 19th day of April, 1912,
and assigns in support thereof the following
REASON:
The learned Trial Judge erred in directing the
jury to bring ina verdict for the defendant.
Grorck DemMMING, ~
Counsel for Plaintiff.
April 19, 1912.
OPINION.
Filed May 10, 1912.
MOTION FOR NEW TRIAL.
McPuerson, Judge,
That a locomotive engine—that is, thewhole engine
—is a ‘tear’’, was decided in Johnson vs. Railroad Co..
196 U.S. 1; and it was accordingly held, that the rear
Bas MirceeT- MEV Ia be TMF i Ew - a * -
i 7s Praecipe for Judgment.—Judgment.
*
3
‘abe
end of the tender, where the train is attached, must be
' equipped with an automatic coupler. But no decision
has been cited that requires an automatic coupler be
j tween the engine proper and its tender, and there
j seoms to be no reason for requiring it at that point.
7 | have read again the notes of testimony, and am
; still unable to find any evidence of the defendant’s neg:
7 ligence, No presumption of fault exists in this class
3 of cases: the doctrine of res ipsa loquitur does not ap-
3 ply; and in the absence of evidence all that ean be said
; is that the liability of the defendant for this deplorable
accident was not proved,
The motion for a new trial is refused.
Pah athe EEA
PRAECIPE FOR JUDGMENT.
Filed May 21, 1912.
To Clerk of U.S. District Court:
Enter judgment upon the verdict in favor of the
defendant in above case.
Wa. Crarke Mason,
Counsel for Defendant.
JUDGMENT.
Filed May 20, 1912.
Before McPurrson, J.
And now, to wit, this 20th day of May, 1912, in
accordance with praecipe filed, judgment is hereby en-
tered on the verdict in the above entitled case in favor
of the defendant and against the plaintiff,
BY THE COURT.
Attest:
Leo A. Liuy,
Deputy Clerk.
—
ee:
fat RR TO Aa OIRO tt te ARE GUI SIRES NING RANA IY a RTA TTR ee RUA al On ci ag
Assignments of Error, 7
ASSIGNMENTS OF ERROR.
Filed May 29, 1912.
And now this, the 20th day of May, 1912, plaintiff,
through her counsel, assigns as error the following:
1. The learned tria! Judge erred in directing the
jury to find a verdict for the defendant.
> The learned trial Judge erred in refusing to
allow the following question to be put by plaintiff's
counsel and answered (page 64):
(). If those coupling parts were in good con-
dition, could they possibly have come apart, in
your opinion, in that accident?
(Objected to.)
(Objection sustained.)
(Exeeption noted for plaintiff by direction of
the Court.)
2 The learned trial Judge erred in refusing to
allow the following question to be put by plaintiff's
counsel and answered, and to allow plaintiff's wit-
nesses to go into the following line of testimony (page
G7):
Q. Which are the stronger, the automatic
couplings or the drawbar and pin?
(Objected to.)
(Objection sustained.)
(Exception noted for plaintiff by direction of
the Court.)
Grorck DeMMING,
Atty. for Plaintiff.
ee ee CORAM ERS VENEREOL wae VN OEE Ete on RMA GBA OD BAU
80 Praecipe sur Transcript.
PRAECIPE SUR TRANSCRIPT.
Filed May 29, 1912.
To the Clerk of the United States District Court,
Eastern District of Penna.:
Sir:
In making up the transeript sur writ of error in
the above entitled case you are to include the following
papers:
Docket Entries,
Writ of Error,
Statement of Claim,
Plea,
Bill of Exceptions,
Motion for New Trial,
Opinion,
%
4
Judgment,
5 Assignments of Error,
~ and no others.
>
=
: Grorce DemMMine,
Atty. for Plaintiff.
9-29-12
Siri oh deagpeaaile
Pc BE REA AH
aah RRA a Sie
Brisinze::
— ha SBE — —
Clerk’s Certificate. s1
Unrrep Srates or AMERICA, pe
se .
Eastern Distrricr or Pennsyuvania. ¢
I, William W. Craig, Clerk of the District Court
of the United States for the Eastern District of Penn-
sylvania, do hereby certify that the annexed and fore
going is a true and faithful copy of pleas and proceed
ings in the case of Pennell v. Philadelphia & Reading
Railway Company, No. 1734, December Session, [11,
as per praecipe filed, a copy of which is annexed here
to, now remaining among the records of the said court
in my office.
In Testimony Whe@reot, | bave hereunto sub
seribed my name and atlixed the seal of
the said Distriet Court at Philadelphia,
this 14th day of June, in the vear of our
(SEAL) Lord one thousand nine hundred and
twelve, and in the one hundred and thirty
sixth vear of the Independence of the
United States.
WinuiaMm W. Crate,
Clerk District Court, US.
RRR EEE ESSA EE TIRE, Fo) SORENTO Gd RAE SEP SO care TG
82 MARY GENEVIEVE PENNELL, ADM’X, ETC,. Vs.
In the United States Circuit Court of Appeals for the Third Cireuit,
October Term, 1912,
No. 1646 (List No. 62).
Marky GENE\ EVE Penneni. Adm’x. Plaintiff in Error,
Vay
Prinapenriia & Reaping Ramway Co., Defendant in Error.
And afterwards, to wit, on the Fourth day of December, 1912,
come the parties aforesaid by their counsel aforesaid. and this case
being called for argument sur pleadings and briefs. before the Hon,
George Gray, Hon, Joseph Buttington. Cireuit Judges, and Hon.
John Rellstab, District Judge, and the Court not being fully advised
in the premises, takes further time for the consideration thereof,
And afterwards, to wit. on the twenty-seventh day of January,
I913, come the parties aforesaid by their counsel aforesaid, and the
Court now being fully advised in the premises, renders the following
2
;
decision :
: In the United States Cirenit Court of Appeals for the Third Cirenit.
# October Term, 1912.
a No. 1646.
3
3 Mary Gexevieve Pexvens. Administratrix of the Estate of Jay
3 Allen Pounell, Deceased, Plaintiff Below and Maintil in Error.
Y Vs,
“ PHinapenrnia & Reaping Rayeway Company, Defendant in Error.
; In Error to the Distriet Court of the United States for the Eastern
‘ District of Pennsvlvania.
: Before Gray and Buflineton. Circuit Judes, and Rellstah. District
: Judge,
z Burrinerox, Clrenit Indge :
4 In the court below, the plaintiff, Mary G. Pennell, brought suit
under the provisions of the acts ef April 22. T9OS, and April 5,
¢ 1910, relating to the linhility af inter
Mt roads to their ey Iplovees In cert:
5 Readine Railwar Company,
state Common carriers by rail:
‘in cases, against the Philadelphia &
to recover damages for its alleged neg-
) ligence, causing the death of Jav \llen Pennell, her hushand and its
> emplovee. While working as a fireman on a locomotive of the de-
fendant company hauline a freieht train in interstate commerce
> the forward part of the engine hroke loose from the tender and Pen-
> nell, who at the time Was standing above the coupling, fell on the
Apirate 3! ow
a RNR RD EE NE SI RT EIT SRA LD TSA BNI Rit RN EDAD ID ce
PHILADELPHIA & READING RAILWAY COMPANY, 83
track, was run over and killed. The negligence charged was an al-
leged violation by the railroad of the act of Congress of Mareh 2,
1898, which, plaintiff contended, required it to place automatic
couplers between the forward end of a locomotive and its tender.
The act provides: “Tt shall be unlawful for any such common carrier
to haul, or permit to be hauled or used on its line, any car used in
moving Interstate traffic not equipped with couplers coupling auto-
matically by impact, and which can be uncoupled without the neces-
sity of men going between the ends of the cars.” In Johnson vs.
Southern Pacific Company, 196 UL 8. 16, the word “ear” was held
to include a locomotive and that a railroad was bound to equip en-
gines with automatic couplers, “since engines have occasion to make
couplings more frequently” than cars. On the theory that the effect
of that decision is to hold “that the engine is a ear and that the
tender is a car, each separate and apart from the other,” it is now
contended that when these parts are coupled together to form a loco-
motive, it must be by an automatic coupler. We cannot agree to
such a construction. To do so would be to lose sight of the real pur-
pose of the act. The law was not passed to secure stronger car
couplings, for the old-fashioned link and pin were, when once made,
and considered solely as couplings, possibly stronger and more re-
liable connections than automatic ones. It was the constant killing
and maiming of men incident to going between the bumpers to
couple and uncouple cars that the law sought to avoid and not to
ensure the stability of the coupling after it was made, much less the
stability between the parts of a locomotive itself. Tf the instability
or insecurity of couplings after they were made had also been a
recognized evil, and if Congress had meant to remedy such evil, the
requirements of the act would have extended not merely to the auto-
matic character of the couplings, but also to their strength and
durability. The union of engine and tender is in large measure a
permanent one, and the act of joining the two is of such rare oecur-
rence and is so alien to transportation, and an aecident resulting
from the joining of such parts so unheard of, that Congress could not
have had it in view to require an automatic coupler at that point.
Agreeing. as we do. with the conclusion reached by the court be-
low, that “no decision has been cited that requires an automatic
coupler between the engine proper and the tender, and there seems
to be no reason for requiring it at that point.” the judgment is
aflirmed.
Endorsed: No. 1646. Opinion of the court. Received and Filed
97
January 27, 1913. Saunders Lewis. Jr., Clerk.
84 MARY GENEVIEV® PENNELL, ADM’X, ETC., VS.
In the United States Circuit Court of Appeals for the Thiird Cireui
October Term, 1912.
No. 1646 (List No. 62).
Mary G. Pexne ct, Plaintiff in Error,
vs.
PHILADELPHIA & Reapinc Raiwway Co., Defendant im Error.
In Error to the District Court of the United States for the Easter
District of Pennsylvania.
This cause came on to be considered on the transcript of recor
from the District Court of the United States, for the Eastern Distric
of Pennsylvania, and submission of briefs by counsel.
On consideration whereof, it is now here ordered and adjudee
by this Court, that the judgment of the said District Court in thi
rause be, and the same is hereby affirmed. with costs.
JOHN B. McPITERSON,
Circuit Judge: ;
&
*
Al
?
a
4
3
4
Philadelphia, January 27, 1913.
Endorsed: No. 1646. Order aflirming judgment. Received anc
Filed January 27, 1913. Saunders Lewis, Jr., Clerk.
; In the Supreme Court of the United States,
Mary GeNevirve PENNELL, Administratrix of the Estate of Ja
Allen Pennell, Deceased, Plaintiff in Error and Plaintiff Below,
vs.
PHILADELPHIA AND ReEApING Raitway Company, a Corporation of
the State of Pennsylvania, Defendant in Error and Defendant
Below.
Assignment of Errors.
And now comes Mary Genevieve Pennell. Administratrix of the
Estate of Jay Allen Pennell, Deceased, plaintiff in error, and makes
and files this her assignment of errors:
First. The Circuit Court of Appeals for the Third Circuit erred in
entering judgment affirming the judement of the District Court
of the United States for the Eastern District of Pennsylvania on the
verdict entered on the twentieth day of May, 1912. in favor of said
defendant in error and against said plaintiff in error.
Second. The said Circuit Court of Appeals erred in not reversing
the said judgment of the said District Court. and in not remanding
said cause to said District Court for a new trial.
Third, The said Circuit Court of Appeals erred in not sustaining
the first assignment of error upon the record in said cause. said as-
signment of error being as follows:
er eo i ae Se ese anne ee ee eee ey eee
PHILADELPHIA & READING RAILWAY COMPANY. 85
“The learned trial judge erred in directing the jury to find a ver-
dict for the defendant.”
Mourth. The said Cireuit Court of Appeals erred in not sustaining
the second assignment of error upon the record in said cause, said
assignment of error being as follows:
“The learned trial judge erred in refusing to allow the following
question to be put by plaintiff's counsel and answered:
(). If those coupling parts were in good condition, could they pos-
sibly have come apart, in your opinion, in that accident?
(Objected to.)
(Objection sustained. )
(Exception noted for plaintiff by direction of the Court.)”
Fifth. The said Cireuit Court of Appeals erred in not sustaining
the third assignment of error upon the record in said cause, said
assignment of error being as follows:
“The learned trial judge erred in refusing to allow the following
question to be put by plaintiff's counsel and answered, and to allow
plaintiff's witnesses to go into the following line of testimony :
Q. Which are the stronger, the automatic couplings or the draw-
bar and pin?
(Objected to.)
(Objection sustained. )
(Exception noted for plaintiff by direction of the Court.)”
Sixth. The said Cireuit Court of Appeals erred in rendering
judement against the plaintiff in error and in favor of said defend-
ant in error for costs of suit in said circuit court of appeals.
Seventh. The said Circuit Court of Appeals erred in holding that
the Acts of Congress approved March 2, 1893, amended April 1,
L896, approved March 2, 1903, and approved April 14, 1910, being
known as the Safety Appliance Act, did not require the placing of
an automatic coupling between the locomotive and the tender of a
train engaged in Inter-State commerce.
Wherefore, the said Mary Genevieve Pennell, Administratrix of
the Estate of Jay Allen Pennell. Deceased, plaintiff in error prays
that for the errors aforesaid and other errors appearing in the record
of said United States Circuit Court of Appeals in the above entitled
cause to the prejudice of the plaintiff in error the said judgement of
the United States Cirenit Court of Appeals be reversed, annulled, and
for naught esteemed, and that said cause be remanded to the United
States District Court for the Eastern District of Pennsylvania for
such further proceedings in said cause as may be determined upon
by this Honorable Court to the end that justice may be done in the
premises,
GEORGE DEMMING,
CHARLES H. BURR,
Attorneys for Plaintiff in Error.
Endorsed No, 1646, Assignment of errors. Received and Filed,
February 18,1918. Saunders Lewis, Jr.. Clerk.
=
:
3
x
=|
4
:
x
3
2
>
86 MARY GENEVIEVE PENNELL, ADM’X, ETC., VS.
In the Supreme Court of the United States.
Mary GENEVIEVE PENNELL, Administratrix of the Estate of Jay
Allen Pennell, Deceased, Plaintiff in Error and Plaintiff Below,
PHILADELPHIA AND Reapinc Raitway Company, Defendant in
Error and Defendant Below.
Petition for Writ of Error.
To the Honorable the Chief Justice and the Associate Justices of the
Supreme Court of the United States:
Mary Genevieve Pennell, \dministratrix of the Estate of Jay
Allen Pennell, Deceased, the above plaintiff in error, feeling herself
aggrieved by the final judgment entered against her in the above
entitled case on the 27th day of January. 1913, by the Circuit Court
of Appeals for the Third Circuit, which judgment affirmed a judg:
ment of the District Court of the United States for the Eastern Dis-
trict of Pennsylvania, also entered against her in the same case on
May 20th, 1912, and directed judgment to be entered in favor of
the Philadelphia & Reading Railway Company, defendant in error,
comes now by her attorney, George Demming, Esq., and shows that
the above action was begun in the District Court of the United States
for the Eastern District of Pennsylvania; that the jurisdiction of
such District Court was not entirely dependent upon the opposite
parties to the suit being citizens of different states, but that the suit
arose under laws of the United States; and that petitioner is there-
fore entitled to a writ of error out of the Supreme Court of the
United States in accordance with Section 241 of the Judicial Code.
Petitioner, therefore, prays that a writ of error may be allowed to
the Supreme Court of the United States, and also that an order be
made fixing the amount of security for costs which the plaintiff in
error shall give and furnish upon said writ of error. and that, upon
giving said security, all further proceedings in this Court be sus: —
pended and staved until the final determination of said writ of error |
by the Supreme Court of the United States. |
And vour Petitioner will ever pray. ete.
MARY GEN-EIVE PENNELL,
Administratrix of the Estate of
Jay Allen Pennell, Deceased.
STATE OF PENNSYLVANIA,
County of Dauphin, ss:
Mary Genevieve Pennell, being duly =worn according to law, de-
poses and says that she is the plaintiff in error in the foregoing case
and petition, that the statements contained in the petition are true,
and that the writ of error therein prayed for is not taken out for the
purpose of delay, but because she feels that an injustice has been
done bv reason of said judgment.
MARY GEN-IEVE PENNELL.
“ -_ — : af
PHILADELPHIA & READING RAILWAY COMPANY. 8i
Sworn and subscribed to before me, this, the 5th day of February,
1913.
[ SEAL. ] WILLIAM L. WINDSOR, Jr., Alderman.
My com. expires Ist Mon. in May, 1913.
Endorsed: No. 1646. Petition for writ of error. Received and
Filed Feb. 13, 1913. Saunders Lewis, Jr., Clerk.
And now, this, the 12th day of February, 1913, upon considera-
tion of the foregoing petition and aflidavit, and upon motion of
George Demming, Esq., Attorney for the Plaintiff in Error, and
upon filing this petition for a writ of error and assignments of error,
it is ordered that writ of error be, and it hereby is, allowed, to have
review in the Supreme Court of the United States of the judgment
entered herein and all the record, proceedings, etc., of the case and
in any wise thereto pertaining, and that a citation be issued ad-
dressed as prayed for, returnable within thirty days hereafter, upon
the entry of security in the sum of two hundred and fifty Dollars,
that a supersedeas be granted and proceedings stayed upon this writ
of error.
By the Court:
GEO. GRAY,
Circuit Judge.
IEndorsed: No. 1646. Order granting writ of error. Received
and Filed Feb. 18, 1913. Saunders Lewis, Jr., Clerk.
In the Cireuit Court of Appeals of the United States in and for the
Eastern District of Pennsylvania, in the Third Circuit.
Circuit Court of Appeals, October Session, 1912.
No. 1646.
Mary GENEVIEVE PENNELL, \dministratrix Est. of J. Allen Pennell,
vs.
PuivapeLtpuia & Reaping Rwy Co.
Know all men by these presents, That Mary Genevieve Pennell,
Administratrix of the Estate of J. Allen Pennell, is held and firmly
bound unto Philadelphia and Reading Railway Co. their executors,
administrators, or assigns, in the sum of Two hundred and 50/100
dollars, lawful money of the United States of America, to be paid
unto the said Philadelphia and Reading Railway Co. their executors,
administrators, or assigns, to which payment well and truly to be
mace ft do bind and oblige my heirs, executors, and administrators,
joint and severally by the-e presents.
Sealed with my hand and dated this 17th day of February, A. D.,
1912,
88 MARY GENEVIEVE PENNELL, ADM’X, ETC., VS.
Whereas, the above named Mary Genevieve Pennell heretofore
citizen of the State of columenced an action in the Cireui
Court of Appeals of the United States, in and for the Eastern Dis
trict of Pennsylvania, in the Third Circuit, against the said Phil:
delphia and Reading Railway Co.
Now therefore the condition of -his obligation is such that if th
above named Mary Genevieve Pennell in the said action shall pra
on demand, all costs that may be adjudged, or awarded agailis
Philadelphia and Reading Railway Company, as aforesaid in
action; then this obligation shall he void, otherwise the same sli!
be and remain in full foree and virtue,
Signature of Principal Waived by Surety.
FIDELITY & DEPOSIT COMPANY
OF MARYLAND,
HERMAN HOOPES,
; Resident Viee-President.
‘
:
;
Attest:
[ SEAL. | I. WILL,
Resident Assistant Secretary
Sealed and delivered in the presence of—
——__- -——.,
Endorsed: No. 1646. Bond on Writ of Error for Supreme Court
Received and Filed Feb. 18, 1918. Saunders Lewis. Jr, Clerk.
Unitep States or America. ss:
The President of the United States to the Honorable the Judges o:
the United States Cireuit Court of Appeals for the Third Circuit
(Greeting:
Because in the record and proceedings, as also in the rendition
of the judgement of a plea which is in the said United States Cireni:
Court of Appeals, before you, or some of you between Mary Gene.
vieve Pennell, Administratrix of the Estate of Jay Allen Pennell
Deceased, Plaintiff in Error, and Philadelphia & Reading Railway
Company, Defendant in Error. a manifest error hath happened
to the great damage of the said Mary Genevieve Pennell, as |)
her complaint appears. We being willing that error, if an
been, should be duly corrected end full and speedy justice done to
the parties aforesaid in this behalf. do command vou, if judgment
he therein given, that then under your seal, distinctly and openly,
you send the record and proceedings aforesaid, with all things
concerning the same, to the Supreme Court of the United States.
together with this writ, so that you have the same within thirty
days, in the said Supreme Court 6f the United States, at the City of
Washington, District of Columbia. to be then and there held, that
the record and proceedings aforesaid being inspected, the said
Supreme Court of the United States may cause further to be done
Vv hat!
Br RAG a a i hk OT Cee EN BRL ORT DN at, PRE EST SIE LSAT IS UNA eo de
PHILADELPHIA & READING RAILWAY COMPANY. 89
therein to correct that error, what of right, and according to the
laws and custome of the United States should be done.
Witness the Honorable Edward D. White, Chief Justice of the
Supreme Court of the United States, at Philadelphia, the Sth day of
February, in the year of our Lord one thousand nine hundred and
thirteen.
SAUNDERS LEWIS, Jr.,
Clerk United States Circuit Court of
Appeals for the Third Cireuit.
Allowed by the court.
GEO. GRAY, Judge.
Uxirep STATES OF AMERICA,
Kastern) District of Pennsylvania,
Third Judicial Civenit, set:
I, Saunders Lewis, Jr., Clerk of the United States Circuit Court of
Appeals, for the Third Cireuit, do hereby Certify the foregoing to
be a true and faithful copy of the original transcript of record and
proceedings in this court, in the case of Mary G. Pennell, Plaintitl
in Error, and Philadelphia & Reading Railway Company, Defend-
wit in Error, No. 164¢ October Term, 1912, on file and now re-
maining among the recor ls of the said Court, in my oflice.
In testimony Whereof, 2 have hereunto subscribed my name and
allixed the seal of the said Court, at Philadelphia, this Nineteenth
day of February in the year of our Lord one thousand nine hundred
and thirteen and of the Independence of the United States the
one hundred and thirty-seventh.
| Seal United States Circuit Court of Appeals, Third Circuit. ]
SAUNDERS LEWIS, Jr...
Clerk of the US. Cireuit Court of Appeals, Third Cirenit.
Uxirep STATES OF AMERICA, ss:
The President of the United States to Philadelphia & Reading Rail-
way Company, Greeting:
You are hereby cited and admonished to be and appear at the
Supreme Court of the United States, to be holden at the City of
Washington, District of Columbia, within thirty days, pursuant. to
a writ of error filed in the Clerk’s office of the Supreme Court. of
the United States, wherein Mary Genevieve Pennell, Administratrix
of the Estate of Jay Allen Pennell, Deceased, is Plaintiff in Error.
and vou are Defendant in Error, to show cause, if any there be, why
the judgment rendered against the said Plaintiff in Error as in the
said writ of error mentioned, should not be corrected, and why
speedy justice should not be done to the parties in that behalf.
Witness, the Honorable Edward D, White, Judge of the Supreme
Court of the United States, at Philadelphia, the 18th day of Feb-
* Seen CT eee
3d Cirenit. Term No. 986.
trix of the estate of Jay
vs. Philadel Company. — Filed February
24th, 1913. File No. 23,561,
90 MARY G. PENNELL, ADM'X, ETC,
, VS. PHILA, & READING RY. co.
ruary, in the year of our Lord one thousand nine hundred and
thirteen.
GEO. GRAY, Judge.
I hereby accept service of the within citation, ete.
WM. CLARKE MASON,
Counsel for Philadelphia & Reading
Railway Company, Defendant
Feb’ry 19, 1913,
Endorsed on cover: File No, 23,561. U. S. Cireuit Court Appeals,
Mary Genevieve Pennell, administra.
Allen Pennell, deceased. plaintiff in error,
phia & Reading Railway
ae ree ‘
phoash
Be ga
ve toe
IN THE
Supreme Court of the United States,
Mary GeNEVIEVE PENNELL, Adminis- }
tratrix of the Estate of Jay
Allen Pennell, Deceased,
Plaintiff-in-error and
Plaintiff below,
ooiens | Oct. Term, 1912.
No. 986,
PHILADELPHIA AND Reapinc Ratiway
Company, a Corporation of the
State of Pennsylvania,
Defendant-in-Errorv and
Defendant below.
And now, to wit, this third day of March, 1913,
comes Mary G. Pennell, as administratrix of the
estate of Jay Allen Pennell, deceased, by her attorneys,
George Demming and Charles H. Burr, and moves
this court to advance to such early date as may be eon-
venient to said court for argument on writ of error
to the United States Cireuit Court of Appeals for the
Third Cireuit, in the ease of Mary G. Pennell, admin-
istratrix, ete., vs. Philadelphia and Reading Railway
Company, in which the said Mary G. Pennell, adminis-
ARAB ETON PD
2
si Ms lbs ee |
tratrix, is plaintiff-in-error, and the Philadelphia and
Reading Railway Company is defendant-in-error, and
the said Mary G. Pennell, administratrix, herewith files
her petition to this Honorable Court praying that argu-
ment upon the aforesaid writ of error may be advanced,
GEORGE DEMMING,
CILARLES TH. BURR,
Attorneys for Plaintiff.
I hereby aceept service of the petition herein.
WM, CLARK MASON,
Attorney for Defendant.
3
Many Gexevireve Pennens., Adminis- }
tratrix of the Estate of Jay
Allen Pennell, Deeeased,
Plaintiff-in-error aud
Plaintiff below,
a ee No. 986.
Priapenpua AND Reaping Ratiway
Company, a Corporntion of the
State of Pennsylvania,
Defendant-merior and
Defendant below.
To the Hlonorabl the Judy 5s of the Supre de Court of
the United States?
The petition of Mary G. Pennell, as administra-
trix of the estate of Jay Allen Pennell, respectfully
shows:
1, That on or about the second dav of Mareh, 1912,
your petitioner began a suit at law against the Phila
delphia and Reading Railway Company under the
Railroad Mmplovers’ Liability Aets of Congress of
1908 and 1910, to recover the sum of hifty Thousand
Dollars ($50,000) for the death of plaintiff's intestate.
The negligence alleged, infer alia, was the failure of
the defendant to comply with the Safety Appliance
Aets, and particularly the provisions of said Acts re-
quiring the locomotives or ears used in trains engaged
in interstate commeree to he equipped with automatic
couplers.
2. That at the trial of the said eanse, it was shown
that while a freight train was traveline frou. Harris-
burg, Pennsylvania, to THagerste cu, Marvland, en
gag in interstate commeree, the coupling between
L Oct. Term, 1912.
eats |
SCI RB Deere is |
4
the locomotive and the tender broke and gave way;
that plaintill’s intestate, the fireman on the locomotive,
working in his proper position over this coupling, fell
through the gap occasioned by the parting of the coup.
ling and was almost instantly killed. There were forty
four cars attached to the locomotive to which auto
matic couplings iver attached, and every one of these
automatic couplings held. Between the locomotive and
the tender there was no automatic coupling, but an old
fashioned draw bar and pin coupling. This alone
broke.
3. That no evidence was offered on the part of the
Railroad Company, and the trial judge directed the
Jury to find a verdict for the defendant.
4. That in refusing a motion for a new trial the
learned trial jndge expressed his reasons for refusing
to allow the plaintiff to recover in the following words:
That a locomotive engine—that is, the whole
*engine-—is a ‘car,’ was decided in Johnson vs.
Railroad Co., 196 U.S. 1:and it was accordingly
“held, that the rear end of the tender, where the
“train is attached, must be equipped with an auto.
“matic coupler, But no deeision has been cited
“that requires an automatic coupler between the
“engine proper and its tender, and there seems
“to he no reason for requiring it at that potnt.?”
® That the learned Court of Appeals for the Third
Cireuit aflirmed the judgment of the court helow, con-
cluding with these words:
“Agreeing, as we do, with the conclusions
“reached by the court below, that ‘no decision has
‘been cited that requires an automatic coupler
* ‘hetween the engine proper and the tender, and
***that there seems to be no reason for requiring
“it at that point’ the judement is aflirmed.’?
5
6. That your petitioner is advised by counsel
learned in the law, and therefore avers, that the learned
trial judge and the learned Court of Appeals for the
Third Cireuit erred in so construing the decision in
Johnson vs. Railroad Company, and that the decision
in Johnson vs. Railroad Company is emphatically to
the effect that locomotives as such were within the
provisions of the Safety Appliance Act of 1893,
Further, that any and all doubt upon the subject is re-
moved by the amendatory Act, approved Mareh 2, 1903,
in which the provisions of the aforesaid Act are ex-
pressly declared ‘*to apply to all trains, locomotives,
“tenders, cars and similar vehicles, used on any rail-
**road engaged in interstate ecommeree.”’
Your petitioner submits that the interpretation
made by the trial court and the Cireuit Court of Ap-
peals would operate to make meaningless the use of
the word *‘locomotives’’ if said Aet be construed to
have no application to the attachment of automatic
couplers between locomotives and tenders.
7. Your petitioner further shows that the railroads
of this country have negleeted and refused generally to
place automatic couplers between the locomotives and
the tenders of trains engaged in interstate commerce,
and that under the proteetion and authority of the de-
cision of the Court of Appeals for the Third Cireuit
in the ease at bar such a condition will continue for a
space of several vears until this ease be reached in its
ordinary course upon the docket, unless this Honor-
able Court will, in view of the general interest to the
community, and in view of the imperiling of the lives
and limbs of the employes of the various railroad eom-
panies, advance this case for argument to the end that
the railroad companies of the United States may as
soon as possible, and not at the expiration of some
et
ute or
6
Years, be foreed to comply with the provisions ef the
Safety Appliance Acts of Congress.
8. Your petitioner would further
respectfully sng-
vest that the suceinetness of the
issue involved might
render this ease one suitable to be heard on the sum
mary docket.
And your petitioner will ever pray, ete.,
MARY G. PENNELL,
As Administratrix, etc.
By her attorneys,
GEORGE DEMMING,
CHARLES H. BURR.
IN THE
Supreme Court of the United States.
Mary Genevirve PeNNetn, Adminis- }
tratrix of the Hstate of Jay |
Allen Pennell, Deceased, |
Mlaintiff-in-error and |
Plaintiff below,
Oct. Term, 1913.
No. 469.
Us.
PumapetpHia axnp Reaping Rateway |
Company, a Corporation of the |
State of Pennsylvania,
Defendant-in-error and
Defendant below,
WRIT OF ERROR TO THE UNITED STATES
CIRCUIT COURT OF APPEALS FOR THE
THIRD CIRCULT.
And now, to wit, this thirteenth day of Oetober,
1915, comes Mary G. Pennell, as administratrix of the
estate of Jay Allen Pennell, deceased, by her attorney,
George Demming, and moves this Court to advance for
argument, to such early date as may be convenient to
said Court, the ease of Mary G. Pennell, administra-
trix, ete., vs. Philadelphia and Reading Railway Com-
pany, in which the said Mary G. Pennell, administra-
trix, is plaintiff-in-error, and the Philadelphia and
9
Reading Railway Company is defendant-in-error, and
the said Mary G. Pennell, administratrix, herewith
files her petition to this Honorable Court praying that
argument upon the aforesaid writ of error may be
advaneed,
GEORGE DEMMING,
Attorney for Plaintiff-in-Error.
[ hereby accept service of the within motion and
petition.
Attorney for Defendant.
o
Mary Genevieve Pennett, Adminis.
tratrix of the Estate of Jay |
Allen Pennell, Deceased,
Plaintiff-in-error and
Plaintiff below, |
Oct. Term, 1913.
No. 469,
US,
PiiLapenPiia axp Reapixe Raiway
ComMPANY, a Corporation of the
State of Pennsylvania,
Defendant-in-error and
Defi ndant below. J
IN ERROR TO Th UNITED STATES CIRCUIT
COURT OF APPEALS FOR THE THIRD
CIRCUIT.
To the Honorable fhe Justices of tha Supreme Court
of the United Slates:
The petition of Mary G. Ponnell, administratrix
of the estate of Jay Allen Pennell, deceased, respeet-
fully shows:
1. That on or about the second day of Mareh, 1912,
your petitioner began a suit at law against the Phila-
delphia and Reading Railway Company under the
Railroad Employers’ Liability Aets of Congress of
1908 and 1910, to recover the sum of Fifty Thousand
Dollars ($50,000) for the death of plaintiff's intestate.
The negligence alleged, inter alia, was the failure of
the defendant to comply with the Safety Appliance
Acts, and particularly the provisions of said Acts re-
quiring the locomotives or ears used in trains engaged
in interstate commeree to he equipped with automatie
couplers.
+
2. That at the trial of the said eause, it was shown
that on December 31st, 1911, while a freight train was
traveling from Harrisburg, Pennsylvania to Hagers-
town, Maryland, engaged in interstate commerce, be-
‘ause of the sudden stopping of the train occasioned
by a bursting air hose at the rear of the train, the
coupling between the locomotive and the tender broke
and gave way; that plaintiff's intestate, the fireman on
the locomotive, working in his proper position over
this coupling, and without any negligence whatsoever
on his part, fell through the gap oceasioned by the part-
ing of the coupling and was almost instantly killed.
There were forty-four cars attached to the tender to
all of which automatic couplings were connected, and
every one of these automatic couplings held. Between
the locomotive and the tender there was no automatic
coupling, but an old fashioned draw bay and pin coup
ling. This alone broke.
3. That no evidence whatever was offered on the
part of the Railroad Company, and the trial judge di-
rected the jury to find a verdict for the defendant.
4. That in refusing a motion for a new trial the
learned trial judge expressed his reasons for refusing
to allow the plaintiff to recover in the following words:
That a locomotive engine—that is, the whole
‘‘engine—is a ‘ear,’ was decided in Johnson vs
‘Railroad Co., 196 UL S. 1; and it was accordingly
‘held, that the rear end of the tender, where the
“train is attached, must be equipped with an auto
‘*matie coupler. But no decision has heen eited
“that requires an antomatie coupler between the
“engine proper and its tender, and there seems
‘to he no reason for requiring it at that point.’
5. That the learned Court of Appeals for the Third
Cirenit afirmed the judgement of the court below. eon
cluding with these words:
5
‘*Avreeing, as we do, with the conelusions
**reached by the court below, that ‘no decision has
***heen cited that requires an automatic coupler
** *hetween the engine proper and the tender, and
** ‘that there seems to be no reason for requiring
‘it at that point’ the judgment is affirmed.’’
6. That your petitioner is advised by counsel
learned in the law, and therefore avers, that the learned
trial judge and the learned Court of Appeals for the
Third Cireuit erred in so construing the decision in
Johnson vs. Railroad Company, and that the decision
in Johnson vs. Railroad Company is cmphatieally to
the effeet that locomotives as such are within the
provisions of the Safety Appliance Act of 1893.
Further, that any and all doubt upon the subject is
removed by the amendatory Act, approved Mareh 2,
1903, in which the provisions of the aforesaid Act are
expressly declared **to apply to all trains, locomotives,
“tenders, ears and similar vehicles, used on any rail-
‘road engaged in interstate commeree,”’
Your petitioner submits that the interpretation
made by the trial court and the Cireuit Court of Ap-
peals would operate to make meaningless the use of
and ‘tenders’? if said et
he construed to have no application to the attachment
of automatie couplers hetween locomotives and tenders.
,’
the words ‘locomotives’
7. Your petitioner is informed and believes that
several other aeeidents of an exactly similar nature
have oceurred on railroads in various sections of the
country, and where the same defense and reply to de-
mands for indemnification by injured parties have been
made as in her case. The speedy decision of her case
by the highest court of the land is, therefore, a matter
of publie import.
8. However this may be, and aside from the gen-
eral importanee of the determination of this matter,
Sec |
6
your petitioner strongly feels that there must surely
he some legal redress for her for the loss of her de-
ceased husband under the circumstances as narrated
above, where he was properly and fully discharging his
duty, entirely without any carelessness on his part,
and where there is at least a serious question and doubt
whether the statutory duties of his employer were ful-
filled,
%. Your petitioner was made a widow by reason of
this accident, with one small child, a girl, to support,
and was left destitute and entirely dependent upon her
own efforts for sneh support of herself and her ehild.
Mor nearly two vears now she has struggled to do this
and carry on this unsuceessful litigation in an effort to
seeure What she believes to be her rights.
If, in the wisdom of this ( ‘ourt, it is consistent with
the other prior and probably more important business
before it, and not trespassing and engrossing too mueh
upon the rights and time of other litigants, she prays
this Court to fix an early time for the argument and
disposal of her writ of error, As she is advised by her
counsel that the hearing of her ease would consume hut
a comparatively brief space of time, she suggests to
the Court, if neeessary, that her ease may he placed on
the summary docket,
Mor all of which relief your petitioner respeet fully
prays.
MARY G. PENNELL,
Administratrix of the Estate of
Jay Allen Pennell, Deceased.
By her attorney,
GEORGE DEMMING.
FILED
"OV 15 1913
No. 469. october ‘retin WHR...
IN THE .
Supreme Court of the United States.
MARY GENEVIEVE PENNELL, Adwministra-
trix of the Estate of Jay Allen Pennell,
Deceased,
Plaintiff in Error and Plaintiff Below,
vs.
PHILADELPHIA AND READING RAILWAY
COMPANY, a Corporation of the State of
Pennsylvania,
Defendant in Error and Defendant Below.
Writ of Error to the United States Circuit Court of
Appeals for the Third Circuit.
BRIEF FOR PLAINTIFF IN ERROR.
GEORGE DEMMING,
Attorney for Plaintiff in Ervor.
International, | 236 Chestnut St
Be. AI ate regenes
PRT RETA ED EAE GRIEG PER ORTON Ot eS
Names of the Parties
Statement of the Case (Presenting suceinetly the question in-
volved and the manner in which it was raised)......... 3
on
Specitication of the Errors relied upon
“I
PIGUET ts pax Seer Tenner AL ee eee
wi)
Liha
$s duet
Be Markie IPs
sie bis
Lie eG ee
ALPHABETICAL LIST OF ALL CASES REFERRED TO, TO-
GETHER WITH REFERENCES TO PAGES WHERE CITED.
Benson vs. Railway Co., 75 Minn. 163
Chicago, Burlington & Quincy Rwy. Co. vs. U. S., 220 U.S
Delk vs. St. Louis and San Francisco |
ROR. Co, 220:0. S520.
East St. Louis Connecting R
Fleming vs. Southern Railway Go, Wai Ny C47
Johnson vs. Southern Pacitie VO, set. Se
Kansas City, ete, Railroad Co, vs. Crocker, 95 Ala. 412
Mayor, ete. vs. Third Ave. ROR. ¢ o. 117 N. Y., 404 and 646.
Phila. & Reading Rwy. Co. vs. Winkler, 4 Pennewell's Del iN
ports, 38,
Safety Appliance Acts of Conaress of 1893, 1903 and 1910 .
St. Louis and Mountain, ete. R y. Co. vs. Taylor, 210 U.S. 281.
Thomas vs. Georgia R. R. and Rankine Co., 3 Ga,.22?
United States vs. Lacher, 134 U >. O24 -.
Ck) ee
NWy. Co. vs. O'Hara, 150 I). 580......
ve
Pave
12
10
: a7
IN THE
Supreme Court of the United States.
Mary Genevirve Pexnenn, Adminis. }
PHILADELPHIA AND Reapina Rarway
tratrix of the Estate of Jay |
Allen Pennell, Deceased,
Plaintiff-in-error ana
Plaintiff below,
= | Oct. Term, 1913,
: No. 469.
Company, a Corporation of the
State of Pennsylvania,
Defendant-in-error ana
Defendant below.
WRIT OF ERROR TO THE UNITED STATES
CIRCUIT COURT OF APPEALS FOR THE
THIRD CIRCULT.
Action «x Trespass Unper tue Raitroap En-
pLoyerS’ Liapiurry Acts or Concress or 1908 anp
1910, By THE Wipow, Appornrep ADMINISTRATRIX,
oN Benaur or Herserry axnp Her Ixrant Daveu-
TER FOR THE ALLEGED WronGruL Ki_uinec or Her
Husspanp Wuire Empioyep spy tHe Derenpant
AND Due vo Its ALLEGED NEGLIGENCE IN Not Pro-
vipInG) Proper AND Necessary APPLIANCES AS
Requirep BY THE Savery ApreLiance Acts oF Con-
GRESS OF 1893, 1896, 1903 anp 1910,
aes: |
Orie.
5s ea bea
Sat SR Gal
nay
Rare ite 2 ae WES we - Oe ae a = — a
STATEMENT OF THE QUESTION INVOLVED.
The question involved in the present writ of error
is whether, under the facts of this case, the defendant
railroad company was guilty of negligence and guilty
also of a violation of the Safety Appliance Aets of
Congress, and whether the case should have been sub-
mitted te a jury to determine the amount of damages
to be awarded the plaintiff suing as administratrix.
STATEMENT OF THE CASE.
This suit was brought by Mary G. Pennell, admin-
istratrix of the estate of Jay Allen Pennell, deouneed,
on behalf of herself as the widow of said Jay Allen
Pennell, and his minor daughter. The suit was brought
under the ever Kmployers’ Liability Acts of Con-
gress of April 22, 1908, and April 5, 1910, against the
P iiladelphia and Reading Railway Company, a com-
mon carrier corporation incorporated under the laws
of the state of Pennsylvania, by whom the late Pennell
was employed in the capacity of a fireman on one of
its freight locomotives. The accident happened on
December 31, 1911. At the time of the accident Pen-
nell was firing on a locomotive pulling a freight train
from Harrisburg, Pennsylvania, to Hager ‘stown, Mary-
land, so there is no question as to the train bei ‘Ing en-
gaged in interstate commerce and the application
therefore of the Aets under which suit was brought.
About five o’clock in the morning of the above
date, and therefore dark, at a point near Moor’s Mill,
Cumberland County, Pennsylvania, as this freight
train, composed of forty-four freight cars, engine,
tender and caboose, was proceeding on its way, with
every member of the crew at his proper position, going
at a speed of about fifteen miles an hour, on a level
track, with a slight curve, suddenly and withons warn-
ing the air hose coupling between the last car and the
one next to it gave way and the hose fell apart. This
caused the air to be instantly put on the brakes of the
whole train, tending to bring it to a sudden stop.
There was necessarily considerable strain upon
the coupling apparatus of all the ears . Every car on
the train was coupled to its adjoining car by an auto-
matic coupling device, except the tender to the engine.
yd sss |
bce
eet
1
el
4
Every coupling on the train stood the strain and re-
mained intact, properly performing its function, except
the coupling between the tender and engine.
The engine was what the engineer described as an
I-8 class engine, with the engineer’s cab half-way up
the boiler, on the side, and the fireman working at the
end of the boiler and engine, about and over the space
where the tender and engine are coupled together,
The coupling between the tender and engine, and the
only coupling of its kind in the entire train, was the
old-fashioned draw-bar and pins. The pin at the ten-
der end of the coupling broke, allowing the engine to
pull away from the rest of the train before the en-
gineer knew of the existence of any trouble in time for
him to stop the engine and train. The fireman, Pen-
nell, working industriously in his proper position, fell
through the gap suddenly opening at his feet to the
track beneath, and before the train came to a complete
standstill was run over by five ears and almost in-
stantly killed.
From the evidenee, apparently the railroad erew
either did not look at the couplings on the air hose
which broke in the first instance, or, if they did, could
not recall what condition they were in, The foreman
of the wreck crew, sent for after the aecident, testified
that the air coupling ‘*was somewhat worn’? (page 57),
and plaintiff in error at the trial produced two experts
who testified positively that the coupling on the air
hose could not possibly come apart as it did unless
there was a defect in it of some sort.
The trial judge refused to let the case go to the
jury, and gave binding instruction for the defendant
in error, the railroad company.
The Cireuit Court of Appeals affirmed this judg-
ment.
ASSIGNMENTS OF ERROR.
First.—The Cireuit Court of Appeals for the First
Cireuit erred in entering judgment affirming the judg-
ment of the District Court of the United States for the
Rastern District of Pennsylvania on the verdiet en-
tered on the twentieth day of May, 1912, in favor of
said defendant in error and against said plaintiff in
error,
Second.—The said Cirenit Court of Appeals erred
in not reversing the said judgment of the said District
Court, and in not remanding said cause to said District
Court for a new trial.
Vhird.— The said Cireuit Court of Appeals erred
in not sustainng the first assignment of error upon the
record in said cause, said assignment of error being as
follows:
‘The learned trial judge erred in directing the
jury to find a verdict for the defendant.’
Fourth-The said Cireuit Court of Appeals erred
in not sustaining the second assignment of error upon
the reeord in said eause, said assignment of error being
as follows:
The learned trial judge erred in refusing to
allow the following question to be put by plain-
tiff’s counsel and answered:
Q. If those coupling parts were in good
condition, could they possibly have eome
apart, in your opinion, in that aeeident?
(Ohjeeted to.)
(Objection sustained. )
(Exception noted for plaintiff by diree-
tion of the Court.)’’
6
Fifth—The said Cireuit Court of Appeals erred
in not sustaining the third assignment of error
upon the record in said cause, said assignment of error
being as follows:
“The learned trial judge erred in refusing to
allow the following question to be put by plain-
tiff’s counsel and answered, and to allow plain-
tiff’s witnesses to go into the following line of tes-
timony:
Q. Which are the stronger, the automatie
couplings or the drawbar and pin?
(Objeeted to.)
(Objection sustained. )
(Exeeption noted for plaintiff by diree-
tion of the Court.) ”’
Sirth.—The said Cireuit Court of Appeals erred
in rendering judgment against the plaintiff in error
and in favor of said defendant in error for costs of suit
in said Cireuit Court of Appeals.
Seventh.—The said Cireuit Court of Appeals erred
in holding that the Aets of Congress approved Mareh
2, 1893, amended April 1, 1896, approved Mareh 2,
1903, and approved April 14, 1910, being known as the
Safety Appliance Acts, did not require the placing of
an automatic coupling between the locomotive and thie
tender of a train engaged in interstate commerce,
~)
ARGUMENT.
At the trial of this ease in the court below and in
the argument before the Cireuit Court of Appeals,
counsel for plaintiff in error contended that there was
sufficient evidence as to the defective condition of the
air hose couplings to take the case to the jury on that
point alone. Counsel for plaintiff in error still believes
that this is so and contends that the trial judge erred
in not holding that the evidence upon this part of the
case, meagre though it necessarily was, was yet suffi-
cient to carry the entire case to the jury. While it is
true that the doctrine of res ipsa loquitur does not ap-
ply as between master and servant, still there was some
affirmative proof of a defective air hose coupling,
which parted, and this proof, uncontradicted as it was,
should have been passed upon by the jury,
Nevertheless, so far as the main principle of this
appeal is coneerned, this is a minor matter and this
argument will not dwell upon it further, but will ad-
dress itself particularly to the other and more import-
ant subject in the ease, viz.: the facet that there was,
at the time of the happening of the aecident, an old-
fashioned draw bar and pin coupling between the en-
vine and tender, and that this broke, eausing thereby
the death of the fireman.
In the very beginning certain important points
may be taken as econeeded, thereby greatly simplifying
the case:
In the first place, since tlhe dead man was employed
as fireman on a locomotive drawing a train of through
‘ars from a point in one state to a point in another
state (pages 25 and 37) there ean be no question but
that he was employed in interstate commerce and that
8
the Railroad Employers’ Liability Acts of Congress ap-
ply to the ease, under which Acts the suit was brought.
In the next place, since at the time of the accident,
the dead man was working at his proper and required
duties and at his appointed and designated station
(page 25), there can be no question raised that his neg-
ligence in any way entered into the accident, and the
clement of contributory negligence therefore drops out
of the case.
In the third place, the evidence is undisputed, that
the coupling apparatus between this particular loco-
motive and tender was the old kind, consisting of a
draw bar and two pins, that this was the only coupling
of its kind in the whole train, and that every other ear
in the train was eoupled to its adjoining ear with the
comparatively newer and demanded automatie coup
ling device (pages 32 and 38),
In the next place, there is no dispute whatever
over the fact that every coupling in the train suecess-
fully withstood the strain and held firmly and intaet,
except the draw bar and pin coupling between the lo-
comotive and tender whieh yielded and broke (page
40),
And, finally, the evidenee in the ease is clear and
Without any contradiction that the tender, which was
coupled on to the locomotive with the draw bar and
pins, was an entirely separate and distinct ear and en-
tity in itself (pages 24 and 32).
The question then is, was the employment by the
defendant railroad company of this draw bar and pins
coupling between the locomotive and tender a viola-
tion of the Federal law and one whieh would make it
respond in damages for the death of this employee?
Plaintiff in error contends that it was.
9
What is the proper construction of the language
of the Safety Appliance Acts of 1893, 1903 and 1910?
The Act of Congress of Mareh 2, 1893, provides:
‘It shall be unlawful for any such common
earrier to haul or permit to be hauled or used on
its line any ear used in moving interstate tratlic
not equipped with couplers coupling automatically
by impaet, and which ean be uncoupled without the
necessity of men going between the ends of the
cars.”’
In construing and applying the requirements of
this Act as expressed in the above language to the facts
of the present case, plaintiff in error contends that the
courts must apply and construe these provisions with
regard to the primary object of the Aet, which is ‘to
promote the safety of employees and travelers upon
‘ailroads,’’ as set forth in the title of the Statute. Al-
though one purpose, and possibly the chief purpose,
in employing this language in this Act is to protect and
save brakemen who have to go in between ears to cou-
ple and uncouple them; vet the general purpose of the
Act is to obtain and bring about the safety of all rail-
road employees of whatever class, and the requirement
of the Act passed, as the expression of this purpose, is
universal and most forcible and sweeping in its lan-
guage, and should be so applied and construed in all
matters relating to the protection of railroad workmen
and t
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