# Transcript of Record — Mary Genevieve Pennell, Administratrix of the Estate of Jay Allen Pennell, Deceased, Plff. In Err. v. Philadelphia & Reading Railway Company > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0149%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1931 - **Citation:** 231 U.S. 675 ## Text "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 a | Fi 3 : wah Wate baal ane cng Fort ok ewe y, PES hs Satin a Minha Roe DECEMBER SESSION, 1911. George Demming W734 W. C. Mason 912 March 2 se . 4 . oe 7 se 8 8 ‘ am Co HK le ry . a Q). That was while he was performing his duties? A. Yes. 2 OG I ROE TPR L EPE RRM SETI tae yo RN PROD 27 pe BRE , Eee RETR aa et tay CRE Be AREER He ‘ is ven nat eS 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 Ci Cores EIR 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 “¥ Fen Fe aa n Pee te 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? ~ 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. 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 to specific railroad aceidents, For all the more reason should the trial judge in this ease have both literally and liberally construed this Statute, when plaintiff in error offered, as she here did, to prove that the automatic coupling device is stronger and mach safer than the old draw bar and pin, by reason of the diffusion of the stress and strain of automatie coupling devices, by their construction, through many parts, as compared with the old draw bar and pin coupling. “DONS ORIN ye ete Cheam oe ei ee a | 10 The facts of the accident themselves prove this, because the evidence shows, as previously stated, that every automatic coupling device inthe whole train held firmly and securely, and the one and only draw bar and pin coupling device tr the train was the one coup- ling that gave way and broke. The conclusion is, there- fore, logical and irresistible that, had there been the modern type of automatic coupling between the engine and tender instead of the old and obsolete one of the draw bar and pins, this accident, in all probability, would never have happened and this man’s life would have been saved. In construing these so-called ‘*Safety Appliance Acts,’ this Court has frequently held that these Acts are mandatory, and that the duty to have an automatie coupling is an absolute duty and can be evaded in no way, shape or form. St. Louis and Mountain, ete., Railway Co. vs. Taylor, 210 U.S. 281; Chicago, Burlington & Quiney Railway Co. vs. U. S., 220 U. S. 559. Delk vs. St. Louis and San Franciseo R. R. Co., 220 U.S. 580; To have held the defendant railroad eompany guilty of negligence upon the evidence in this case would have been the reasonable construetion of the Statute and one in line with the object aimed at by Congress. United States vs. Lacher, 134 U.S. 624. Likewise would it appear, that, in construing these Federal Statutes, the Supreme Court of the United States has held that the engine is a ear and that the tender is a ear, each separate and apart from the other. Johnson vs. Southern Pacifie Co., 196 U. S. 1. ll ‘ine learned trial judge below, in giving his opin- ion refusing a new trial, and the Cireuit Court of Ap- peals in upholding that opinion, state that the decision in the foregoing case does not hold that a tender should have an automatic coupling at the end where it is coup- led to the engine, but merely deeides that it should have one at the opposite end from the engine. It is difficult to see how or why one should attempt to differentiate between the two ends of the tender with reference to the construction and application of these Statutes of Congress. The only possible reason or plausible exeuse for so doing would be because in the Safety Appliance Act of 1893, the paragraph above quoted and referring to automatie couplers ends with the words ‘‘which can be uncoupled without the necessity of men going be- tween the ends of the ears.’’? The likely inference from this language, it might be maintained, is that the pro- tection of the Act is only intended to apply to rail- road brakemen or switchmen, engaged in coupling and uncoupling cars, But is not such a narrow and close construction hound to broaden to the more liberal one here eon- tended for in the light of the undoubted intent of these Statutes to generally and freely protect the lives and limbs of railroad employees while engaged in their hazardous occupation? And more especially, is this latter construction too comprehensive, when one con- siders all the undisputed facets of the present case,— the lack of contributory negligence, the holding intact of all the automatic couplings, the presence of but one bar and pin coupling which broke, ete.? The whole question seems to be, therefore: Is a tender a car within the meaning of these Statutes? If it is a car at one end, it certainly must be a ear at the other end, or where and under what rule is one 12 going to draw the line of division and say, here it ceases to be a car and the Statute does not apply? The tender runs on a set of wheels of its own, it is entirely separate and distinct from the engine, (page $2) and is only connected to the engine by a coupling device, the same as any other ear is connected to the adjoining one, Therefore, why attempt to make a distinction, especially when the desire for this dis- tinction is actuated only to justify the use of an infer- ior, unsafe, weak and antiquated coupling apparatus as proved in this particular accident? In the decision of Johnson vs. Southern Pacitie Co., supra, whieh the lower court held merely decides that a tender requires an automatic coupling device on the further end from the engine, the whole argument of the appellant in that case, and the briefs tiled, seem to be to the effect that a tender is a ear, distinet in itself, the same as any other ear ina train. A number of eases, from the various state courts, are cited to support this contention, as follows: Philadelphia and Reading Railway Co, vs. Winkler, 4° Pennewill’s Del. Reports, 387; Fleming vs. Southern Railway Co. 131 North Carolina, 476; Kast St. Louis Connecting Railway Co. vs. OHara, 150 11. 580; Kansas City, ete., Railroad Co. vs. Crocker, 95 Ala, 412; Thomas vs. Georgia R. Re and Banking Co., 38 Georgia, 222: Mavor, ete., vs. Third Ave. R. R. Co., 117 N. Y. 404 and 646; Benson vs. Railway Co., 75 Minn. 163. = 13 All these decisions are to the effect that a tender to a locomotive, and anything else, entirely supported by and running on its own system of wheels, is a ear. There is no perplexity as to the definition of the word car used in the Safety Applianee Statutes, and it has but one signifieation. Says the Standard Dictionary: Car: A vehicle for use on a railroad, usually mounted on trucks, and often provided with mech- anism for coupling, so as to form part of a train. Says Chamber’s 20th Century : Car: A vehicle moved on wheels, applied to very various forms. In America, applied to all velucles for railway traveling. Likewise, the Century Dictionary : Car: A wheeled vehicle or conveyanee. A vehicle running upon rails, Says Murray’s New English Dictionary : Car: A wheeled vehicle or conveyance. In the United States the term has become restricted almost entirely to vehicles designed for traveling on railways. Again, says Webster’s New International Die- tionary: Car: A vehicle moved on wheels.