Transcript of Record — Seaboard Air Line R. Co. v. Horton
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SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1913.
No. 691,
SEABOARD AIR LINE RAILWAY, PLAINTIFF IN ERROR,
v8.
JAMES T. HORTON.
IN ERROR TO THE SUPREME COURT OF THE STATE OF NORTH
CAROLINA.
INDEX.
Original. Print
Record from superior court of Wake county, North Carolina... 1
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Se MIN in eiccsains as oss scunnncdiccéaacanaceces 8 6
Statement of proceedings. . oo... 6... sce escccccescccucccs 11 8
SARUM 8D COMNIIAINE 6 5 oo ooo sss secs esevnccccsccccns.. 11 8
Answer to amendment to ENN ks <awacecccckxtnkecen 12 9
WUE Gaxeck seca ThTN ON CRR SERENA OSE EDA OEY Am NeLE OL OX CR 12 9
MHNME: MnB in kgeeteWSnee nanedduhexawenksS4aeutabejedc (cs 18 9
Motion to set aside verdict. &.........0.. .ceccccce se. 13 10
MONEE ah dns anedi wus Wun inns cinukeausieccacck Okun ca 13 10
ME MUN KLAN we shi vAnNSanousWeane cl snskecae caccaccss 14 11
Defendant's statement of COE GE MOORE. ook ia ccicsacce 15 11
Testimony of James T. Horton....................... 15 11
ct Boe Be OE Taine eae ipa 26 18
hes ngmpe Eh coapupnn ee Pe EE eg LD 28 20
Motion for nonsuit overruled... ...................... 28 20
Jupp & DeTweiLer (INc.), PRINTERS, WasHINoToN, D. C., OcToBER 10, 1913,
Original. Print
Testimony of A. E. Hopkins............... biases er 29
We ty MOMOONS Sc aceiescacevseas Piesens 34
Bre es UNI, 6s cib'u ska cKncsu een easenk 38
J. E. Brown...... TELE CREE ETT ere 41
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By SIN Siw kee wiens awh ane cenne 56
MN CUT NCC h ache NERD do eec a Na hake ewecccens 58
Testimony of Charles H. Murray................0.005 58
Wi UN a bc ok a ceeha ees 6 oS aca uAS 59
BONE NUON S cic dice bnedecas nse ceccaxs 61
eo Sy eee 66
Beste POWER, vin enc sd hasan sewands 6S
ws, eo REO CROCRTIBD) oo i sce ke caacas 71
ES ee NEE No Laka kcde Sid aso xg ada wea 72
Lewis Archer (recalled) ................ 73
Exhibit A—Report on condition of engine. ............ 73
B—-Report on condition of engine. ............ 74
(—Report on conditien of engine............. nm
D—Report on condition of engine.......... 0... 77
MEE Pn CCEA pA O UG ban oN aba dba ees & vax 78
F—Statement of J. T. Horton................ 7s
Sp MMOD ioe and ecbainn < ink SMGaes bak cauans 79
BC OPUCALG OF TOP. TRGTIIG. gai 6 ks 0 onc oceccaan 7
J—Statement of E. C. Horton................ 80
Defendant’s requests for instructions.................. S1
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yo TRO ee Ya ee ee i a a 98
Motions of defendant overruled... 2.2... ......0...0.00008 98
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PR rene AR 265 CRAG SAT WRC RAK Ave htecckienc abs 99
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Ee RT ne ae ee re nay ee 117
MN HEE SENN bang tee cae cacn Usk bOdeek ce cek Cocks as Seas 118
oneurring opinion by Clark, ©. J... sc cc ccc ccccccusccccens 133
Buepenting Upiniion Dy Brown; -J. oo... ccc ssc ccccccccccaccccs 134
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Clerk’s certificate...... SELON NRE CASE hi oe kobe ed tee wrk ‘ 176
SPABOARD AIR LINE RAILWAY Vs. JAMES T. HORTON, 1
1 Sixth District.
No. —.
Horton
against
S. A. L. Ramway.
(From Wake.)
Before G. 8S. Ferguson, J.
Defendant Appealed.
Caption,
Be it remembered, that at a Superior Court begun, continued and
held in and for the county of Wake, State of North Carolina, at the
courthouse in the city of Raleigh, on the seventh Monday after the
first Monday of September, 1912, it being the 21st day of October,
1912, before Honorable G. S. Ferguson, Judge presiding, the follow-
ing proceedings were had, to-wit:
Summons for Relief.
Wake County, in the Superior Court.
James T. Horron
against
Seapoarp Arr Ling Rartway.
The State of North Carolina to the Sheriff of Wake County, Greet-
ing:
You are hereby commanded to summon Seaboard Air Line Rail-
way, the defendant above named, if it be found within vour county,
to be and appear before the Judge of our Superior Court at a Court
to be held for the county of Wake, at the courthouse in Ral-
2 eigh, N. C., on the seventh Monday after the first Monday of
September, it being the 24th day of October, 1910, and
answer the complaint, which will be deposited in the office of the
Clerk of the Superior Court of said county within the first three days
of said term; and let the said defendant take notice, that if it fail to
answer the complaint within the time required by law, the plaintiff
will apply to the Court for the relief demanded in the complaint.
Hereof fail not, and of this summons make due return.
Given under my hand and seal of said Court, this 5th day of Octo-
ber, 1910.
W. M. RUSS,
Clerk Superior Court,
1—691
SEABOARD AIR LINE RAILWAY VS.
Prosecution Bond.
We acknowledge ourselves bound unto the defendant in this ac-
tion in the sum of $200; to be void, however, if the plaintiff shall
pay to the defendant all such costs as the defendant may recover of
the plaintiff in this action,
Witness our hands and seals, this 5th day of October, 1910.
J. T. WORTON., [sear |
J. S. HORTON. — [seat]
Return of Summons.
Received October 6, 1910; served October 10, 1910, by reading the
within summons and delivering a copy of the same to W. T. Hunt-
ley, agent at Raleigh, N. C., for Seaboard Air Line Railway, the ce-
fendant therein named.
J. I. SEARS,
Sheruf of Wake County,
By H. H. CROCKER, D.N.
And on the 9th day of November, 1910, the plaintiff James T,
Horton, by his attorneys, Messrs. Douglass & Lyon and Holding,
Snow & Bunn, comes and complains as follows:
Complaint.
Nortu Caro.ina,
Wake County:
In the Superior Court, January Term, 1910,
(Title of Cause.)
The plaintiff complaining of the defendant, alleges:
1. That on the 4th day of August, 1910, and some time prior
thereto and ever since that time, the defendant was and now is a cor-
poration duly chartered and organized and engaged in the operation
of a line of railway from Hamlet, N. C.. to Portstnouth, Va., via
Raleigh, N. C., and other points north and south thereof, outside of
the State of North Carolina.
2. That on the said 4th day of August, 1910, the plaintiff, who
was then and now is a resident of the county of Wake, State of North
Carolina, was a young man thirty-one vears of age, with perfect eves
and eyesight and otherwise physically and mentally sound, was in
the employ of the defendant as a locomotive engineer, and on said
day and date was engaged in running and operating a locomotive
engine of defendant and in the discharge of his duties as locomotive
engineer aforesaid, drawing a train of loaded freight cars, a part of
which said cars were loaded with goods, wares and merchandise
JAMES T. HORTON. 2
which the defendant had received for transportation and was trans-
porting from points inside the State of North Carolina to Ports-
mouth, Va., and other points outside of North Carolina over its said
line of railroad.
3. That it was the duty of the defendant to furnish to the plaintiff
a locomotive engine for the use of the plaintiff in the discharge of
his duties as locomotive engineer aforesaid that was properly
equipped with modern safety appliances that were in general use,
especially with a modern and safe water glass, such as was at that
time in general use upon railroad steam locomotives, for the purpose
of gauging the water in the steam boiler of the said locomotive and
such as would protect the plaintiff from injury to his person
4 while in discharge of his duties as locomotive engineer afore-
said and that would afford him a safe place where he might
discharge his said duties.
4. That in disregard of its aforesaid duty to the plaintiff on the
day and date aforesaid, the defendant negligently furnished to the
plaintiff a locomotive engine with which to draw the aforesaid cars
loaded with goods, wares and merchandise as aforesaid, negligently
and carelessly equipped with a water glass that was not modern in
its make and that was unsafe for use and that was of an inferior
grade and quality, and which water glass was known to the defend-
ant to be not modern in its make and unsafe for use and of an in-
ferior grade and quality and liable to burst and seriously and perma-
nently injure the plaintiff while in the discharge of his duty as loco-
motive engineer aforesaid.
5. That while in the discharge of his duty as locomotive engineer
as aforesaid, and while running and operating the locomotive engine
which the defendant negligently furnished as aforesaid to the plain-
tiff on the day and date aforesaid, negligently and carelessly
equipped with said defeetive glass not modern in its make and un-
safe for use as aforesaid and which was of an inferior grade and qual-
ity as aforesaid, at a point on the line of the defendant’s said rail-
road in the county of Wake, State of North Carolina, known as the
town of Apex. the plaintiff, as it was his duty frequently to do,
looked at the aforesaid water glass with which said engine was
equipped with said defective glass not modern in its make and un-
water that was in the boiler of said locomotive, and while he was so
looking, said water glass on account of its being defective as afore-
said and of inferior grade and quality as aforesaid and not modern
in its make as aforesaid was exploded and burst by the steam pre«
sure from said boiler, and pieces of flying glass therefrom were vio-
lently thrown thereby into the face and right eve of the plaintiff,
seriously, painfully and permanently wounding, cutting and
5 bruising his face and eyeball of the plaintiff's right eve and
almost totally destroying the vision of the plaintiff's right
eye, so that his trade. business and calling as a locomotive engineer
has been destroved by reason of said injuries and so that the plain-
tiff has been rendered totally unfit and unable to perform the duties
of his said trade, business and calling end has lost his employment
with the defendant on account thereof and is unable to obtain em-
a
4 SEABOARD ATR LINE RAILWAY VS.
— as a locomotive engineer with the defendant or any one
else,
6. That on account of the aforesaid negligence of the defendant
as hereinbefore set out, the plaintiff has been seriously, perma-
nently and painfully injured and rendered totally and permanently
unfit to perform the duties of his trade, business and calling, has
suffered great physical pain and mental anguish, has lost) much
time from his business, has been sorely inconvenienced, has spent
large sums of money for medical attention and medicines, and has
heen injured and damaged in the sum of fifty thousand dollars,
7. That at the time that plaintiff was injured as alleged in this
complaint, the defendant was engaged in interstate commerce, and
the plaintiff was employed and engaged in interstate commerce, and
brings this action under the Federal Employer's Liability Act passed
by the United States Congress and approved on the 22d day of April,
1908 and the amendments thereto.
Wherefore, the plaintiff prays judgment that he recover of the
defendant fifty thousand dollars damages, together with the costs
of this action, and for such other and further relief as he may be
entitled to in the premises.
DOUGLASS « LYON,
HOLDING, SNOW & BUNN,
Attorneys for Plaintiff.
Norrit Carona,
Wake County:
James T. Horrox, the plaintiff above named, being duly sworn,
deposes and savs that the foregoing complaint is true to his
6 own knowledge, except as to matters stated on information
and belief. and that as to those matters he believes it to be
true.
JAMES T. HORTON,
Sworn to and subscribed before me, this the 9th day of November,
1910.
W. M. RUSS,
Clerk Superior Court.
And thereafter, to-wit, on the 6th day of December, 1910. the
defendant, by its attorney, Murray Allen, Esq., comes and answers
as follows, to-wit:
Answer.
Nortu Caroriina,
Wake County:
In the Superior Court, October Term, 1910,
(Title of Cause.)
The defendant answering the complaint herein, says:
1. That allegations of section 1 are admitted,
JAMES T. HORTON. 5
2. The defendant denies, upon information and belief, that on
August 4, 1910, the plaintiff was a young man with perfect eyes
and eyesight and otherwise physically and mentally strong as al-
leged in section 2 of the complaint.
3. The defendant is informed, advised, and believes, that the
allegations of section 8 of the complaint state matter of law, and
the defendant is not called upon to make answer thereto; but the
defendant says, in regard to the matters set forth in said section,
that it has performed its duty to plaintiff in every respect as required
by law.
4. The allegations of section 4 are not true, and are denied.
5. The allegations of section 5 are not true, and are denied,
6. The allegations of section 6 are not true, and are denied,
And for further defense, the defendant says:
1. That if the plaintiff was injured as alleged in the complaint,
which the defendant expressly denies, the said injury was caused
by the negligence of the plaintiff in the manner in which he
7 used the water glass, which he alleges was in a defective con-
dition, and the manner in which he operated the engine on
which he was employed, and his contributory negligence is pleaded
by the defendant in bar of plaintiff's right to recover in this action,
2. That if the engine on which plaintiff was employed was de-
fective in any respect on August 4, 1910, as alleged in the com-
plaint, which the defendant again denies, such condition was known
to the plaintiff, and he carelessly and negligently failed to report
said condition to defendant’s foreman as it was his duty to do, and
his contributery negligence in that respect is pleaded by the defend-
ant in bar of plaintiff's right to recover in this action,
3. That if the defendant was negligent as alleged in the com-
plaint, which is again expressly denied, the plaintiff by his own
negligence contributed to his injury, if any he has sustained, in
that. having knowledge of the character and condition of the water
elass on the engine upon which he was employed and knowing the
risk incident to its use in that condition, he negligently and care-
lessly continued to use said water glass, and the defendant pleads
plaintiffs contributory negligence in bar of his right to recover in
this action.
4. The defendant again denying that the plaintiff sustained the
injuries as alleged in the complaint, says that if the water glo-s on
the engine on which he was emploved was not modern in. its taake
and was defeetive in any respect, both of which are denied, the
character and condition of said water glass were open and obvious
and were fully known to the plaintiff and he continued to use said
water glass with such knowledge and without objection, and he knew
and voluntarily assumed the risk incident thereto, and the defend-
ant pleads such voluntary assumption of risk in bar of plaintiff's
right to recover in this action.
Wherefore, the defendant demands judgment that it ao without
day and recover the costs of this action to be taxed by the Clerk.
MURRAY ALLEY,
Defendant's Attorney.
—
8 SEABOARD ATR LINE RAILWAY Vs.
for the defendant company at Raleigh, N. C.; that the fore-
yoing answer is true to his own knowledge, except as to mintiers
therein stated on information and belief, and that as to those miat-
ters he believes it to be true,
8 J. F. Mrrenenn, being duly sworn, says that he is agent
J. FL MITCHELL.
Sworn to and subscribed before me, this Gth day of December,
LY LO.
[N. BP. seal. | CARY K. DURFEY,
Notary Public,
Commission expires September 19, L912,
And thereafter, to-wit, on the 20th day of April, 1911, the defend-
ant, by its attorneys, Messrs. Armistead Jones & Son, and Murray
Allen, comes and files an amended answer, as follows:
Amended Answer.
Norru Caroina,
Wake County:
In the Superior Court, October Term, 1910,
(Title of Cause.)
The defendant answering the complaint herein, says:
L. The allegations of section 1 are admitted.
2. The defendant denies, upow information and belief, that on
August 4, 1910, the plaintiff was a young man with perfect eves and
eyesight as alleged in section 2 of the complaint. At the time al-
leged in the complaint, the plaintiff! was engaged as engineer in
the operation of an engine drawing a train between Aberdeen. N.
C., and Raleigh, N. C., and his duties were performed entirely in the
State of North Carolina.
3. The defendant is informed, advised, and believes, that the alle-
gations of section 3 of the complaint state matter of law and the
defendant is not called upon to make answer thereto: but the
9 defendant says, in regard to the matters set forth in said sec-
tion, that it has performed its duty to plaintiff in every
respect as required by law.
4. The allegation- of section 4 are not true, and are denied.
>. The allegations of section 5 are not true. and are denied.
3. The allegations of section 6 are not true, and are denied.
7. The defendant has no knowledge or information sullicient to
form a belief as to the truth of the allegations of seetion 7 of the
complaint, and therefore demands strict proof thereof,
And for further defense, defendant says:
l. That if the plaintiff was injured as alleged in the complaint.
which the defendant expressly denies, the said Injury Was caused
by the negligence of the plaintiff in the manner in which he used
JAMES T. HORTON. ?
the water glass, which he alleges was in a defective condition, and
in the manner in which he operated the engine on which he was
employed, and his contributery negligence is pleaded by the defend-
ant in bar of plaintiffs right to recover in this action,
2. That if the engine on which the plaintiff was employed was
defective in any respect on August 4, 1910, as alleged in the com-
plaint, which defendant again denies, such condition was known to
the plaintiff, and he carelessly and negligently failed to report said
condition to defendant’s foreman as it was his duty to do, and his
contributory negligence in that respect is pleaded by the defendant
in bar of the plaintiffs right to recover in this action,
3. That if the plaintiff was injured as alleged in the complaint,
which the defendant again expressly denies, the plaintiff by his own:
negligence contributed to his injury, if any he has sustained, in
that. having knowledge of the character and condition of the water
glass on the engine upon which he was employed, and knowing the
risk incident to its use in that condition, he negligently and cate-
lessly continued to use said water glass, and the defendant pleads
plaintiffs contributory negligence in bar of his right to recover in
this action,
4. The defendant again denying that the plaintiff sa--
10 tained the injuries as alleged in the complaint, says that if
the plaintiff was injured by the explosion of the vwarer cauge
on the engine on which he was employed, which is -lenied, the
said Injury was caused by his own negligence in using the said water
gauge when he could have operated said engine by using the gauge
cocks thereon, and his contributory negligence is pleagaa by the
defendant tn bar of plaintiffs right to recover in this action.
5. The defendant again denying that the plaintiff sustained the
injuries as alleged in the complaint, savs that if the water glass on
the engine on which he was employed was not modern in its make
and was defective in any respect (both of which are denied), the
character and condition of the said water glass were open and obvi-
ous and were fully known to the plaintiff, and he continued to use
sid water glass with such knowledge and without objection, and he
knew and voluntarily assumed the risk incident thereto, and the
defendant pleads such voluntary assumption of risk in bar of plain-
tiff’s right to recover in this action.
6. The defendant again denying that the plaintiff sustained the
injuries as alleged in the complaint, says that if the water glass on
the engine on which plaintiff was emploved was not modern in its
make and was defective in any respect (both of which are denied),
it was the plaintiff? duty, and he had every opportunity, to know
the condition thereof. and the risk incident thereto, if any. was
assumed by the plaintiff, and his said assumption of risk is pleaded
by the defendant in bar of the plaintiffs right to recover in this
action.
7. That if the plaintiff was injured as alleged in the complaint,
which is denied, there was open to him two ways of operating the
engine on which he was employed: by using the water glass and by
DS i a 1 i i Ne a ai Eg
SEER ee ee
8 SEABOARD AIR LINE RAILWAY VS.
using the gauge cocks, which was a safe way to operate said engine;
and in voluntarily operating the said engine with the water glass
as alleged in the complaint, the plaintiff assumed the risk of injury
therefrom, and his assumption of risk is pleaded by the defendant
in bar of plaintiffs right to recover in this action.
11 Wherefore, the defendant demands judgment that it go
without day and recover the costs of this action to be taxed
by the Clerk,
ARMISTEAD JONES & SON,
MURRAY ALLEN,
Defendant's A tlorneys.
1. PL Mitchell, being duly sworn, says that he is agent for the
defendant company at Raleigh, N. C.; that the foregoing answer is
true of his own knowledge, except as to mutters therein stated on
information and belief, and as to those matters he believes it to be
true,
J. F. MITCHELL.
Sworn to and subscribed before me, this 15th day of April, 1911,
C. T. McDONALD,
Netary Public,
My commission expires Ist day of February, 1912,
This cause came on for trial at April Term, 1911, 0 the Superior
Court of Wake County, and at the conclusion of the plaintiff's evi-
dence, his Honor Judge Hl. W. Whedbee sustained defendant’s mo-
tion for judgment of nonsuit and dismissed the action. Plaintitl
appealed to Supreme Court, and at Pall Term, 1911, of the Supreme
Court of North Carolina the judgment of the Superior Court: was
reversed and a new trial ordered,
Amendment to Complaint,
This cause being called for trial at October Term, 1912. of Wake
Superior Court, plaintiff! moved to amend his complaint as follows,
Which motion was allowed and the complaint so amended:
Amendment to Complaint.
Norrit CAROLINA,
Wake County .
In the Superior Court, October Term, 1912.
(Title of Cause.)
The plaintiff amends his complaint filed herein as follows. by in-
serting in paragraph four thereof, the following:
12 That the said water glass was imperfect, defective, danger-
ous and unsafe in the following particulars, which were also
kt
—_
JAMES T. HORTON. y
known to the defendant, and by it negligently allowed to continue
and exist, to-wit: in that the sume had no guard glass or shield in
front thereof and in connection therewith.
DOUGLASS, LYON & DOUGLASS, *
W. B. SNOW,
J. W. BUNN,
Rk. N. SIMMS,
Plaintiff's Attorneys.
Nortri CAROLINA,
Wake County:
James T. Horton, the plaintiff, being duly sworn, deposes and
says that he has read the foregoing amendment; that the same is
true of his own knowledge, except as to matters therein stated on
information and belief, and as to those he believes it to be true.
JAMES T. HORTON.
Sworn to and subscribed before me, this 21st day of October,
1912.
VITRUVIUS ROYSTER,
Deputy Clerk.
Answer to Amendment to Complaint.
The defendant filed the following answer to the amendment to
plaintiff's complaint :
Answering said amendment to the complaint, defendant says:
The allegations of said amendment are not true and are denied,
Verification of this answer is waived by plaintiff,
Trial, Jury, Ete.
Therefore let a jury come by whom, ete.
And thereupon this action coming on for trial, the following
jurors, to-wit: M.A. Thomas, J. E. Strickland, C. L. Ferguson, 8.
T. Underhill, William Keith, A. A. Adams, C. E. Ferrall,
13 J. W, Booth, B. F. Tucker, Willie Jones and L. M. Knott, are
chosen, tried and sworn and empaneled to try the issues
joined between the parties.
And thereupon after the introduction of evidence on behalf of the
een 9 and defendant, and after the charge of the Court, said jurors
veretofore empaneled in this case, for their verdict found the issues
submitted to them as follows:
Tssues—Verdict.
1. Was the plaintiff injured by the negligence of the defendant,
as alleged in the complaint?
Answer. Yes.
2. If so, did the plaintiff assume the risk of injury, as alleged in
the answer?
2—691
10 SEABOARD AIR LINE RAILWAY VS.
Answer. No.
8. Did the plaintiff by his own negligence contribute to his injury
as alleged in the answer? :
“Answer. Yes.
4. What damage, if any, is the plaintiff entitled to recover?
Answer. $7,500.00,
Motion to Set Verdiet Aside. Ete.
Motion by defendant for judgment non obstanti veredicto,
Motion overruled and defendant excepts,
Motion by defendant to set aside verdict and for new trial for
errors alleged to have occurred during the trial. Motion overruled
and defendant excepts.
And thereupon judgment is rendered by the Court and entered
and filed in this action in the following words:
Judgment,
This cause coming on to be tried before his Honor, G. S. Fereu-
son, Judge, and a jury, and being tried, the following issues were
submitted to the jury:
14 1. Was the plaintiff! injured by the negligence of the de-
fendant as alleged in the complaint?
2. If so, did the plaintiff assume the risk of injury, as alleged in
the answer?
3. Did the plaintiff by his own negligence contribute to his Injury
as alleged in the answer?
4. What damage, if any, is the plaintiff entitled to recover?
And the jury having answered the first issne “Yes.” the second
issue “No,” the third issue “Yes.” and the fourth issue “S87,500.09."
end it appearing to the Court that this action was brought and tried
under the Federal Emplovers’ Liability Act of 1908. it is therefore
ordered, adjudged and decreed that the plaintiff, James T. Torton,
recover of the defendant, Seaboard Air Line Railway, the sum of
seven thousand five hundred dollars ($7,500.00) and the cost of
this action to be taxed by the Clerk.
G. S. FERGUSON,
Judge Presiding.
To the foregoing judgment defendant again excepts, and in open
court appeals to the Supreme Court. Notice of appeal given in open
court and further notice waived. Undertaking on appeal fixed in
the sum of fifty dollars. By consent defendant allowed thirty days
to file and serve statement of case on appeal and the plaintiff al-
lowed thirty days thereafter to serve counter statement or exceptions.
The defendant thereupon filed the following appeal bond:
JAMES T. HORTON. 11
Appeal Bond.
Nortru CAarRoLiNna,
Wake County:
In the Superior Court.
(Title of Cause.)
Whereas, at October Term, 1912, of the Superior Court, of
15 Wake County, the plaintiff recovered judgment against the
defendant for the sum of seven thousand five hundred dollars
and the cost of this action; and
Whereas, the defendant intends to appeal from said judgment to
the Supreme Court.
Now, therefore, we, Seaboard Air Line Railway and the National
Surety Company of New York, undertake pursuant to the statute in
the sum of fifty doliars, to pay all costs which may be awarded
against said defendant on said appeal.
NATIONAL SURETY CO. OF N. Y., [seat.]
iy MURRAY ALLEN, Attorney.
SEABOARD ATR LINE RATLWAY, | [sean]
By MURRAY ALLEN, ttorney-in-Faet,
Defendant's Statement of Case on Appeal.
Nortru Caro.ina,
Wake County:
Superior Court, October Term, 1912.
(Title of Cause.)
This was a civil action for damages, brought by the plaintiff under
the Federal Employer's Liability Act, passed by Congress of ihe
United States, to recover for personal injuries alleged to have been
sustained by plaintiff while employed by the defendant. The action
was tried at October Term, 1912, of Wake County Superior Court,
hefore his Honor, GS. Ferguson, Judge, and a jury. The plead-
ings which appear in the record show the contentions of the parties.
The issues, with the answers thereto made by the jury, appear in the
record.
Plaintiff offered evidence as follows:
James T. Horrox, plaintiff, being duly sworn, says:
On Angust 4, 1910, T was employed by the defendant as locomo-
tive engiaeer, running a local freight train from Aberdeen,
16 N. C., to Raleigh, N. C., using engine 752. August 4th was
third trip T had this engine. Tt was placed in my charge
July 27th. My schedule was, leave Raleigh 7:80 A. M.; due at Aber-
deen at 4:45; generally got in between 9 and 10, Would leave Aber-
12 SEABOARD AIR LINE RAILWAY YS.
deen at 6:35 next morning. On the day of my injurv T left
Aberdeen at this time. My engine was equipped with Buckner
Water gauge, with guard glass gone. T was injured between 1 and
1:30 o'clock on August dth. My train had cars of freight destined
to points in Virginia and Pennsvlwania. (A Buckner water glas~
ix handed to plaintiff for examination.) This water gauge sits at a
point on the boiler head to the left of the engineer. On the inside
of the brass case of the water gauge is a small thin glass tube. The
entire pressure of steam into the boiler passes into the glass tube.
The guard glass is placed in the opening in the brass case to protect
the engineer from flying glass if the glass tube should burst. The
guard glass is three-cighths to five-eighths of an inch thick. (Plain-
tiffs counsel produces a small rule and witness measures thickness
of glass.) Tt lacks a fraction of measuring half inch. The eauge
glass is used to tell the water level in the boiler, how much or how
little water vou have in the boiler. You can see through the guard
glass and see the water in the round glass tube. The guard glass
Was missing when | took the engine, T ascertained that the guard
glass was gone when T got on the engine to pull it out on the first trip.
T was due to leave here at 7:30 on the 27th or 28th of July. and we
have thirty minutes from the time we are ealled to report to the
round-house and register and check the train sheet and see if we have
sand and water and plenty of coal We head out from the reund-
house track and back out where the local freight is made up. When
T have done that. the conductor comes up with his order, and it was
time to go. T read the order, handed it to my fireman and pulled
out. When T pulled out on the first trip that T had on this engine
T noticed that the guard glass was gone. Tran it that trip and came
back again, Tran the engine to the coal chute track or track
17 opposite the turntable, and told Mr. Matthews, the day round-
house foreman at Johnson Street—he is here now—there he
~itx— 1 told him this guard glass was gone, and asked him if he had
one. THe said they did not keep them in stock here, that they were
made in Portsmouth, and he would have to send to Portsmouth to
get one—to run her like she was. He said he would send to Ports-
mouth and get me one.
The defendant objects in apt time to the conversation with Mat-
thews and to any statement made by Matthews to the plaintiff, and
asks that the evidence be stricken out. Objection overruled, and
defendant excepts.
Exception No. 1,
I ran the engine next morning without a guard glass, and brought
it In again next night. | don’t remember whether I did or not. I
know T had two round trips—that would be four dayvs—but I don’t
remember whether | had it three or not. it has been so long. After
Mr. Matthews told me he didn’t have anv. [I went to the Baker-
Thompson Lumber Company.
To the statement that “after Mr) Matthews told me he didn’t have
any. TL went to the Baker-Thompson Lumber Company.” defendant
excepts and asks that it be stricken out. Objection overruled. De-
fendant excepts.
a
JAMES T. ITTORTON. 18
Exception No. 2.
I went to Mr. Charlie Murray, the glass cutter for the Baker-
Thompson Lumber Company, and told him T wanted him to make
mea guard glass and gave him the measurements. '
Objection by defendant, Overruled. Defendant excepts.
Exception No. 3.
Q. Did vou ever get the guard glass?
A. No, sir.
Objection by defendant to question and answer, Overruled. De-
fendant excepts.
Exception No. 4.
18 I carried the engine out Angust 3d. T left Johnson Street
at 7:50 A. M. and arrived in Aberdeen somewhere between 8
and 9 o'clock. T spent the night there and left August 4th at 6:35
on my return trip to Raleigh. Arrived at Apex 1 toe 1:30.) T was
due there at 1. T think T was a few minutes late. Stopped at train
crossing there; carried off engine and three cars. The two rear cars
were to stay at the other Apex track. T backed down to the depot
and cut off engine from the three cars; had brakeman to carry me
to the water tank: had to go back to the main line and head up to
the water tank and get water. When T got back to the crossing, fire-
man said he was nearly perished to death, T said. “Tam, too.” 1
gave him a quarter and told hin to step over to the store and get us
something to eat, to keep us alive. We hadn't had anything since 6
o'clock. The brakeman and T backed back to the house track to couple
ears. We didn’t couple the cars: stopped about ten feet from: the
cars, and was backing up, with reverse lever between my legs. in this
position (indieating). Just as T stopped the engine and went to
raise up, just as T raised up to eross over, the water glass bursted and
some of the flying glass hit me in the eve. T grabbed my handker-
chief and put it over my eve. [T felt my way to the steam valve, got
the bottom valve and top valve off the best T could and crawled down
on the fireman's side and opened the tank valve, which vou would
vet water out of. T turned some of the water into my eve. My eve
was burning like fire. Found my way te the depot platform: found
the conductor. Tle asked me what was the matter. | told him the
water glass had bursted and hit me in the eve: to get me to a doctor
as quick as he could. He got on the engine. We left the cars:
started to Raleigh: arrived at Cary in ten minutes,-T suppose. There
was a red board at Cary and the fireman stepped for the red loard,
and while he stopped T ran over to the drug store and asked the
druggist to give me something to put in my eve. T went back to the
engine, When an engine passes a red board, vou had to get a
clearance card. Then wired from Cary to have a doctor meet
19 me at Johnson Street with a carriage. T arrived at Johnson
Street and got off the engine. The brakeman carried it on
down to the turn pit. T got in a carriage: came to Dr. Lewis’ office;
he was out, but Dr. Rogers was phoning for him and got him word.
He arrived about five minutes after T got in his office. T was sitting
there. He came up to me and pulled my eye open, took an eye
14 SEABOARD ATR LINE RAILWAY VS.
dropper and dropped something in my eve: that kind of relieved
me; waited five minutes and pulled it open and dropped some liquid
In again—coeaine, T suppose—in about twenty minutes. and put me
in his chairlighted the gas, took the glass in his hand and put to
his eve and looked at it. Dr. Lewis is the company’s eve specialist,
He and his partner, Dr. Battle, examined eves for the Seaboard. Dr,
Lewis treated my eve thirty or forty days. 1 suffered great pain in
my eve and was worried about being out of a job. A piece of flying
glass cut through very near the center of sight and left a sear there
about the size of a horse hair. TL ean’t read with that eve. Tam not
in a condition to run a locomotive engine.
Q. Have vou applied for any job to ran a locomotive engine? ”
A. No, sir; it’s no use,
Defendant objects to the language, “it’s no use.” and asks the
Court to strike it out. Objection overruled. Defendant excepts,
Exeeption No. 5,
T applied to Seaboard Air Line for a job and didn’t get it. Be-
fore this injurv my sight was all right. To was examined by Dr
Battle when Twas promoted and passed a satisfactory examination,
This was in March or April, 1905. At the time of my injury |
averaged about $165 a month. To was out of employment S or 9
months after my injury, Since July 19tl. TP have had a job with the
Wake Water Company reading and overhauling meters. At first T
got $15 per week. Sinee last July T have gotten $70 a month,
20 Q. State if vou have had mental suffering on account of
vour injurv?
Objection by defendant. Overruled. Defendant excepts.
Exception No. 6,
A. Yes, | worry day and night because T eannot follow my chosen
occupation. T can’t make half the money T did make.
Defendant objects to the answer to this question and asks that it
be stricken out.
Overruled and defendant excepts.
Exception No. 7.
lt was the inner tube that exploded. The glass came from: inside
the brass case. T have paid Dr. Whitaker and Dr. Horton $5.00 a
piece for examining my eye, and sixty or seventy-five cents for
medicines. That is all | have spent for doctors and medicines. The
Seaboard had two engine inspectors, one day and one night in-
spector,
Q. State what the duties of those inspectors were, if you know?
Objection by defendant. Overruled. Defendant excepts.
Exception No. 8.
A. It was their duty to inspect the engines from the ground up.
They make out a report on each engine. That would include an in-
spection of the water glass,
—
JAMES T. HORTON. 16
Cross-examination :
I swore in my complaint that T had spent large sums of money
for medical attention and medicines, at that time I had only
21 spent $5.60. When I took engine 752, on the morning of
July 27th, T went to Aberdeen. I made three round trips
with this engine. Each time when T came back to Raleigh I made
out a work report. 1 placed them in a box at the round house pro-
vided for that purpose, I signed them. It is an engineer's duty
when he gets on his engine to see that his engine is in good condi-
tion as far as he can before he takes it out. The engine is sup-
posed to be delivered to him to make a successful trip. You can tell
whether there is any water in the boiler by looking at the water glass
and by the gauge cocks, It is the engineer's duty to see that his
vauge cocks are in working order. He can do this by turning the
gauge cocks, The engine is supposed to be delivered to the engineer
with the gauge glass in working order, I had a copy of the book of
rules, (A copy of the rules governing employees in force at the
time is identified by plaintiff.)
Q. Read rule 668 to the jury,
Objection by plaintiff. Sustained. Defendant excepts.
Exception No, 9.
Q. Wasn't it your duiy as an engineer to see that the engine was
in good working order and furnished with the necessary tools, stores,
and supplies, before going to work therewith, and if any defects were
found to report it to the proper oflicer, and wasn’t it your duty an
chgineniin, in making a report at the end of a trip to state spe-
cifically in writing each and every defect?
A. We see as faras we have a chance to see, but they have got a
tool checker to check the necessary tools, and they have got a hostler
to put the coal and water on, and an engine inspector to inspect.
It is the engineer's duty to see that his engine is in good order be-
fore leaving, if he has time to do it. So far as he has time, he ean't
have a delay or he will get demerits.
After T got back froma trip it was my duty to make out reports
and put them in a box at the round house. These reports were
for work that T reported to be done on the engine. My duty
22 as an engineer required me to put on the work report such
things as T thought necessary to be done on my engine.
(Defendant's counsel exhibits to plaintiff work reports marked
exhibits A. B.C. and D., and plaintiff identifies the signatures on
each one of his signatures,
I don’t remember whether T said anything on these work reports
about the guard glass being broken. When T made out my first
report, the guard glass had been gone 2 days. When T made my
next report it had been gone four days, _When 1 came back from
the trip on which T was hurt, T had had this engine five days without
reporting this defect in writing, but | had reported it in person. I
saw Mr. Matthews after the first trip at the coal chute. T was ex-
amined in the office of Mr, Bissett, master mechanic, about August
16 SEABOARD AIR LINE RAILWAY VS.
9th. The question- asked me and ty answers were written out on
the typewriter and [| signed them (witness identifies his signature
to paper. Exhibit F.) Tam a member of the Brotherhood of Loco-
motives Engineers. The Brotherhood has rules and agreement
under which engineers are employed. [| was working under these
rules and regulations (witness identifies book containing rule 49,
marked exhibit E, as being a copy of contract and regulations under
which he worked.
I had a copy of this contract—imy contract of employment with
the Seaboard provided that, as an engineer | would give my engine
reasonable inspection, but would not be required to go underneath
it. That was the agreement at the time | was hurt. T had the talk
with Mr. Matthews sometime between 3 and 4 or 4 and 5 o'clock.
I told him that the shield or guard glass of engine 752 was gone
and | wanted one. He said they had none in stock, He said to run
her like she was, that he would send to Portsmouth and get me one,
1 don’t remember anything cise he said. Tle was standing out there
and walked up and asked me how the engine was. 1 was
23 shaking the main rod and talking about hot boxes. Tf I
didn’t say anything at the other trial about Matthews telling
me to run the engine [ intended to.
Q. Haven't vou added to your testimony this time that Matthews
told vou to go ahead?
A. No, [Tam stating to the best of my knowledge how it happened,
Tam following my other statement as closely as T can. Read what
I said (counsel reads from printed record, as filed in Supreme Court
on former appeal of evidence at former trial.)
Q. On vour return to Raleigh what did you do?
A. To asked Mr. Matthews, the foreman if he had any glass, and
he said “No,” that they were put on in Portsmouth and he had
none. Tle was day foreman at Johnson Street. 1 suppose that is
all I testified to if it is put down that way. T intended to say the
other. I have gone over my testimony taken on the former trial
since that time. [ have gone over it line by line, question and
answer,
Q. Did vou find anything in there about Matthews telling vou
to go ahead with the engine. State if vou can find it anywhere
in there?
Objection by plaintiff. Sustained. Defendant excepts.
Exception No. 10.
Q. Do vou remember finding anything in there about that?
A. T teld you T don’t remember everything T said in there.
Charlie Murray was a glass-cutter, emploved by the Baker-Thomp-
son Lumber Company. After the first trip when T found that Mr.
Matthews did not have any guard glass. | went to see if Murray
wouldn't make me one. T suppose that was between 4 and 5 in the
afternoon. Tle could cut a guard out of a piece of glass. It is a
comparatively simple matter to cut a piece of glass to go in that slot
if vou have glass of the proper thickness and know how to cut it.
I didn’t ask Mr. Matthews to cut me one. After T told him it was
JAMES T. HORTON. 1
gone he ought to have got me one. | didn’t ask him to cut me
one.
24 Q. It was a great deal easier to walk over to the Baker-
Thompson Lumber Company and bother Mr. Murray than to
ask Matthews for one?
A. He wasn’t going to get me one.
Q. Why didn’t you ask him?”
A. I can’t tell you why I don’t ask a man anything. It just
didn’t occur to me. T reckon | didn’t think of it. I can see no
reason Why you shouldn't cut this guard glass out of any piece of
thick glass if you are a glass cutter. If 1 had gotten a piece of
glass that size and shape, and had put it in that water gauge after
the first trip, that would have been suflicient protection if the inside
glass should explode. It would have protected me from flying glass.
That is what it is for. A gauge cock is a steam valve on the boiler.
They are right at the engineer and are 2 or 3 inches apart. When
you turn the third gauge cock at the bottom and no water comes
out, you had better get off the engine. When it goes below the
second one that indicates that vou have between one and two
gauges of water. We have water in the tank and injectors right
at hand to put water in the boiler from the tank. You can tell
about how much water you have in the boiler with the gauge cocks,
but you can tell better with the water glass. You can run the
engine without a water glass. [| have ran it without one. If the
water glass should break, it is the engineer's duty to shut it off and
run in the shop and have one put in. Sometimes he has one and
puts it in on the road. On the day IT got hurt they brought the
engine from Apex using the gauge cocks. The water glass had been
cut out. You can cut it out by turning two valves. T went to Mr.
Murray to get a guard glass because T wanted one put on the engine,
so that in case the water glass should burst to keep flying glass from
hitting me. T didn’t want to operate the engine without the guard
glass. | exerted every effort to get one and couldn’t do it, and had
it to do.
Q. The reason you were working so hard to get one was because
it was dangerous and vou thought it might explode and injure your
eve?
A. 1 didn’t know the water glass was dangerous, T knew
25 there was some danger to it. but T was told by Mr. Matthews
to go ahead and operate it without the glass, and if T hadn’t
T would have lost my job. T knew it was defective so far as the
shield being gone. The shield is important as a protection to the
engineer’s eves. that is all it is for. Nobody can tell when a water
glass is going to burst. IT knew the shield was gone and T knew it
was put there for the safety of anybody on the engine. JT had a
water glass burst with me nine vears ago, IT reckon. Some steam
got in my eve and irritated it (witness identifies release signed by
him, marked Exhibit G.)
T started to say Mr. Baldwin came up to me in front of Kire-
Crowell drug store.
3—691
18 SEABOARD AIR LINE RAILWAY V8,
Objection by defendant. Overruled. Defendant excepts.
Exception No, 11.
Ie was detective for the Seaboard, and said he was going to pay
me for my time, | said T didn’t want pay. He said he had beey
to see the doctor and he said there was nothing the matter with my
eye, that it was just irritated; [lost 4 days, it amounted to eight or
ten dollars, probably fifteen, and 1 signed it and in about 80 day-
they gave me a voucher for $8 or $10, certainly not over &15,
Defendant’s counsel requests that the Court have the foregoin.
answer of plaintiff stricken from the record,
Objection overruled. Defendant excepts.
Exeeption No, 12.
An engineer that can stand an examination on one road ean stand
them on any road in the United States, they have practically the
sume rules and the same examinations,
Q. What effort have vou made to get employment with any other
road ?
A. None, it is no use, just a waste of time and money to go and
see about it.
26 Objection by defendant to the words “no use, just a waste
of time and money to go and see about it.” and defendant
requests the Court to have them stricken out.
Objection overruled. Defendant excepts.
Exception No. 13,
[ think I was examined by Dr. Battle in the Spring of 1905,
Edgar Barbee was with me. 1 never had any injury to my eve
when T was a child. 1 didn’t tell Dr. Battle that I did. [ never
told Mr, Hopkins that I had a defective eve before this acciden!
at Apex.
Dr. M,C, Horron, admitted as being an expert, being duly sworn,
testified ;
Tam an oculist, not related to plaintiff, 1 examined his eve on
May 5th, of this year, T found a very small sear running across
the cornea. The cornea is the portion of the eve that looks dark
It is a portion of the visual part of the eve. ‘Phe sear runs at wn
axis of 120 degrees, | found his vision to be 20-70, We have a
test card. We use letters that are gauged at a distance of 20 fee
to represent a visual angle of 5 minutes, We guuge the biggest
letter at 20 feet, which represents 20-100, That is an ubsolutely
accurate test. The biggest letter represents 20-100, [lis sieht is
20-70, 20-20) represents normal vision. Tt was his right eve.
Vision was normal in his left eve. 1 don’t think the injury to the
cornea will ever clear up. The cornea has no power of regeneration,
Tt has no blood vessels, and when deeper than the superficial layer.
it is invariably permanent. There is no contraction of the tissues
and no blood vessels to supply nourishment so that it never regen-
erates, This scar extended almost entirely across the visual part of
the eye.
JAMES T. HORTON. 19
97 Cross-examination :
In making the tests with the cards, we have to depend to a certain
extent on what the patient says. We don’t take patient’s word for
it every time, If this injury occurred in 1910, and the sear had not
cleared up any more, or if it has not cleared up permanently from
that time, | would safely say it would never clear up. 1 found
astigmatism in the eve. Astigmatism can be corrected with a lens.
| have not treated Mr. Ilorton’s eye. T made one examination and
told him what T thought, Astigmatism is quite frequent.
Recross-examination :
There are dozens of causes of astigmatism, heredity, overstrain,
injury, prolonged study with bad lights, ete. The plaintiff has been
to see me only once as T recall. 1 made an examination of his eye.
I knew nothing about the trial. IT think he said he was going to
have a trial. Tle paid me for my services in making the exam-
ination.
Q. What percentage of people have astigmatism ?
A. LT couldn't tell.
Q. A very large number?
Objection by plaintiff. Sustained. Defendant excepts.
Exception No, 14.
I knew nothing as to the length of time the scar had been on
his eve. Twas not aware of anything having happened to his eye
prior to that time. Ile claimed not to have had any injury to his
eve When a child. tasked him his earliest recollection as to whether
there had ever been a disease, and he said there had never been a
disease there nor an injury. A permanent sear would interfere with
the vision if located anywhere on the cornea, so far as the capacity
ix concerned it must be centrally located. 1T found upon examina-
tion that his sight could be improved very little with the use of
glasses, it could be improved some. [made a note of the
28 fraction to which it could be increased, That was 20-40
minus, that is, he eould see a couple of letters, 20-20 is nor-
mal With one eve normal and the other 20-40, a man is not inea-
pacitated to the extent of not being able to earn a living, but a
man incapacitated to the extent of 20-40 one eve and 20-20 the
other, with both eves open will use the good eve exclusively, As to
his ability to see, it varies entirely with the distance of the object,
if his object is bevond 20 feet, if it is hevond 20-40 distance, he does
not see it with his right eve. It would have to be a large object for
hin to see it bevond 20 feet. T don’t think he requested me to
prepare glasses for him, as T recall T made the examination, he paid
me, and that was all.
Redirect again:
Injury is one of the causes of astigmatism. Tf, as T said, the eye
could be improved 20-40 minus, he didn’t see the whole line ef
20 SEABOARD AIR LINE RAILWAY VS,
20-40, with 5 letters on the line, he sees 3; when I say 20-40 minus,
that meens that he only saw a small number, less than half,
Recross-examination :
In making the examination after | alternately cover and uncover
the good eve, he doesn’t know when | have covered it and when
uncovered, If T found he was faking I would tell him to get out
of the oflice quick. As a test against faking I always examine the
good eve first. It is hardly possible for a man to fake under the
ordinary methods of making an examination at the present day,
We depend, to a certain extent, on what a man says.
Plaintiff rests.
Defendant moves for judgment of non-suit, and to dismiss the
action. Overruled. Defendant excepts.
Exception No. 15,
29 The defendant offers the following testimony :
A. KE. Hopkins, witness for defendant, being sworn, testified:
I have been an engineer about 10 years. Tam employed by Sea-
board Air Line Ry. Been with them 6 years and 6 months. — Prior
to that T was with the Grand Trunk Railroad. 1 have run engine
#92. 1 brought this engine into Raleigh 26th of July, 1910. It
was equipped with a Buckner water glass. It was in good condi-
tion and had a guard glass in place. The engine also had water
gauge cocks for determining the amount of water in boiler. They
are at the right hand side of the boiler head. convenient to the
engineer for opening and shutting to see how much water is in
boiler. They are used to find out how much water is in boiler,
They are suflicient for that purpose. The gauge cocks on the en-
gine were all open and in good working order. It was nine o’¢lock
in the morning when T came in with that engine on 26th of July,
The gauge cocks are put on the boiler to ascertain the amount. of
water you have in the boiler, and, about trying them, if water
comes out of the gauge you know you have that much water in
the boiler, and if it doesn't you know you haven't got that mueh
water in there, The duties of an engineer when going out on the
road, are to inspect his engine, to know if it is in proper working
order before going out. It is his duty, if it is not in proper working
order to make a report to the round house and have any defects
remedied and in the event anything should happen to the water
glass to shut off the valves so no steam and water could get into
the valves. _ THe would run his engine by the water gauge and cocks.
When engineers return from their trips, as part of their duties,
they make a certain report of the defects of the engine on a form.
They are required to make that report in writing, This report
Is put i aptee ee rage ei in done that engineer reports,
30 hy counsel is the cunt of ae sired —— —
! s ontr: f employment that was In force
and effect at the time of this accident. (Contract of em-
=
JAMES T. HORTON. 21
ployment, rule 49 of the Seaboard Air Line Railway, rates, rules
and regulations, identified as is offered in evidence by defendant.
Marked exhibit E.)
I will read rule 49.) “Engineers must give their engines reason-
ible inspection, but will not be required to go underneath them.
The inspector inspects engines below the runni-g boards, he does not
inspect in the cab. T had a conversation with him at the time Mr.
Shot got his eves injured. T met engineer Horton at Mr, Shot's .
house, when T left there he left with me, and we went over towards
Johnson Street. On the way over, he told me that the sight of one
of his eves was affected, that he only had two or three-fifths sight
with one eve. Tle said he was working here on the Seaboard, but he
didn’t suppose he would be able to get a job on another railroad on
account of it. T can’t tell the exact date of that conversation. It
was in the neighborhood of two years I should say, before August
10, 1910,
Cross-examinaticon:
T was on the way from Mr. Shot's house to Johnson Street, right
at the old brick office on Halifax Street. That is on the way to
Johnson Street. The brick office. T believe is at the corner of Peace
and TTalifax, T am not sure, because T am not. well enough
acquainted, | don’t pay enough attention to the streets. Mr, Shot
lived on Peace Street T believe, about, T think, the second ‘lock
from Halifax, T think past Wilmington Street. T mean east o: Wil-
mington Street. T went over to Mr, Shot’s by myself and left there
with Mr. Horton. T suppose T had been with Mr. Horton in the
neighborhood of 45 minutes. T did not stay at Mr. Shot's house
very long. Mr. Horton and [ spoke about different men having
their eves injured, we spoke about engineer Henderlight having his
eves injured and we talked about Mr. Shot's eves being hurt.
31 that was the general part of the conversation T believe, hav-
ing eves injured, We talked about the circumstances that
led up to Mr. Shot's eyes being injured. 1 told a couple of men
about what Horton said. almost right away. They were Tarry
Cole and Frank Stockwell, an engineer, T knew it impaired an
engineer's eflicieney to hold a job if he had a defective eve, 1 don't
particularly go around telling my friends faults and defects. |
thought it queer that a man with a defective eve could run an
engine, To was surprised at the company’s not finding it out, |
don’t mean that T doubted it in my mind how a man could have
2-5 of an eve and run a locomotive engine. The railroad compa-
nies that T have worked for, in the examination, if a man hasn't
a better eye sight than that, they do not let them run. If a man
is smart enough to keep it from them it don’t make no difference
I don’t reckon. Tt looked like it was easily done. Horton was do-
ing it. It looked queer to me why he would he
and not be found out hy the company. 1
the railroad company hadn't found it out. be
tions we have to pass on eye sight.
running an engine
thought it was queer
ause of the examina-
T had to pass them on the
22 SEABOARD ATR LINE RAILWAY VS,
Seaboard. I was examined that way. I suppose Mr. Horton was
examined that way. We all had to be. I know it was a careful
and searching examination with me. T thought it queer that a man
could pass that examination and still have 2-5 of an eye. 1 don’t
remember the exact time I told about the conversation, I told then
some time afterwards, Harry Cole lives next door to me, and |
remember telling him some time, but [| don't exactly remember
When, They pay me $8 a day while Tam here. I make that when
Pam running, They pay me $5.40 a hundred miles. Mr. Horton
Was a pretty fair engineer. [| don’t think he was above the average,
he was an average engineer, The inspector inspects engines, but
he don't look in the cab. The main part of the thing is not in the
cab, the boiler is the main part of a locomotive, you don’t get
tuider the engine to see that. One part of an engine won't
32 work without another hardly at all. The cab is not only
an important, but a vital part of an engine. Engineers
are supposed to inspect engines above the running boards. En-
gineers are supposed to inspect in the eab, IT don’t know whether
there is any particular rule about it, that has always been my under-
standing, that inspec‘or is to inspect under the running boards,
There is a rule between the company and the engineer, that the
engineer is to give his engine a reasonable inspection. The run-
ning board that T speak of is about 5 or 6 feet from the ground
side of the locomotive. The whole cab is above that. The sand
box is about it. The whistle is above it, the smoke stack is above
it, and about half of the boiler is above it. The engineer inspects,
but he does not go underneath the engine, the other man goes under-
neath the engine and inspects that part. 1 never heard of his in-
specting anything above the running boards. The engineer has to
run the engine and inspect it above the running board, he has the
best advantage to know, he sits right there all the time. he can see
any defect there immediately. It is the engineer's business to keep
his eve mostly in front, but he is allowed 15 minutes when he goes
in to look over the engine and find out those defects. I don’t
know that it is the duty of the eagine inspector to go and tap around
about the door of the fire boxes and places like that, The inspeci-
ors and boiler makers have to knock the fire out of the boiler and
look in there. They have hostiers for turning the engine out, get-
ting it out of the round house and putting coal and sand and water
on, he has to bring it out and sit it on the track. It is not alto-
gether ready for the trip, the engine has got to be oiled. The
hostler don’t do any oiling. 1 don’t know that he does everything
else, that ix all he has got to do, get it out and put coal, sand, and
water on it. An engineer is supposed to be called an hour and
fifteen minutes from his home. He is required to be on his engine
before going out 80 minutes to inspect the engine and get ready
to go out. The engineer is paid for that time. When he
33 comes in from his run, he stays on his engine fifteen minutes
to look around the engine. Te is paid for that time, We
have to pay our expenses while at court.
mee
JAMES T. HORTON. $3
Defendant offers in evidence Section 668 of rules and regulations
for the government of the operating department.
Witness reads section 668 as follows:
“They must report for duty at the appointed times; see that the
engine is in good working order and furnished with the necessary
tools, stores, and supplies before going to work therewith. If any
defects are found therein, report thereof must be made to the proper
officer, Enginemen in making reports of the condition of engines
at the end of trip, must state specifically in writing, each and every
defect which requires attention. They will give checks for fuel and
stores received, and assist in switching and making up trains when
necessary.”” That was the rule in force at the time.
(Counsel hands witness a paper, exhibit A.)
That is the form of work report that was used. The engineer
made out that form.
(Defendant offers in evidence exhibits A. B. C. and D., being
work reports, identified by plaintiff as having been filled out and
signed by him.)
Recross-examination :
1 know Mr, Tlorton’s signature. 1 would not swear that he signed
these reports. These reports are pretty well filled up. They con-
tain a good deal of work to be done. I don’t think it would take a
machinist a month to do the work on those reports. 1 didn’t read
every bit. There is a lot of work there, but it is only small jobs.
If it says the main driving box is foundered and if they are cut
off you take them in the shop. The length of time depends on how
much force they put on to do the work. One man don’t usually do
that kind of work, it is too heavy. It would not take half an hour
to do that work on report “Bo” It would take him a couple
34 of hours to do that work on exhibit “A.” It looks like P. M.
M. approved them, | expect that is Mr. P. M. Matthews, he
was foreman of the round house, and that calls for the signature
of the foreman of the round house. The work on this report would
not take very long, a couple of hours, it calls for a great deal to be
done, but they are small things. An engineer is paid by the com-
pany, 30 minutes before a trip, and 15 minutes afterwards. The
last time I] saw engine 752 before Mr. Ilorton took charge of it, was
9 o'clock the day before. TI think I brought it in and turned it
over at 9 o'clock one morning and he didn’t get it until next dav.
[ ran it 2 trips. Ernest Horton ran it one trip, but T don’t remem-
ber just what run.
Redirect:
(Defendant’s counsel hends witness yellow slip, being a work re-
port, exhibit A.)
Witness reads the bottom note on work report. ‘Enginemen
must carefully inspect their engines after each trip and report their
24 SEABOARD AIR LINE RAILWAY V8.
condition on this form whether needing repairs or not. They will
be held responsible for defeets not reported. No attention will be
given to verbal reports not signed by enginemen,”
W. oS. Benron, witness for defendant, being sworn, testified ;
Direct examination :
Pam in the employ of the Seaboard Air Line as engineer, have
been for nearly 2 years. Before that time [ was fireman on the
Seaboard. twas fireman on the engine at the time the plaintiffs
chiims he got hurt at Apex. 1 was on that run with him. [was
fireman on the engine at first day he took it out. When we took
charge of that engine on the morning of the 27th of July,
30 the water glass had the shield or guard in front of it on the
morning we started on the first trip. The glass was dirty
and smokey and vou couldn't see through it. That was about 7:15.
Nobody was on the engine but Horton and I. He had taken
charge of the engine. 1 was fireman. The guard glass was smokey
or dirty, We were in the yard, backing up to the train to take it
out. T teok the guard glass out to clean it. It was hot and |
couldn't hold it, it burnt my hand. - laid it down over the fire-
box and the jar, coupling the train knocked it off and broke it.
Horton was running the engine when it was knocked off. 1 made
the remark that the glass broke to Mr, Horton. and nothing else
was said about it. He looked down at it. 1 suppose he saw. it.
This was the first morning that he had that run with that engine.
We were going to Aberdeen. To was on the engine when Lorton
claimed he got hurt at Apex. When TE got back he had a handker-
chief around his eves, he said it hurt him so that he could not run
the engine, and Toran the engine on to Raleigh. | shut off the
Water gauge and gauged the water with the gauge cocks, They
were in good condition, Mr. Horton made the remark that he was
hungry and asked me to go over to the store and get him something
to eat, and that is why T wasn’t on the engine.
Cross-examination :
The glass was dirty and smokey and hot when it first came out
of the round house that morning. Twas on the engine when it was
first discovered about 6:30 o'clock. T got on. the engine before
Mr. Horton. 1 took the glass out after T got out in’ the vard.
When I took it out Horton was sitting on the seat backine the en-
gine back to the train. Tle was looking hack at the train where he
was going. T took the glass out and laid it down on top of an oil
eanon the boiler head. It was about that high (indicating) and
had a flat top. Tt was the shape of a kettle. The spout came
36 from the end of it, it was a square arrangement and held
about a gallon, the top was about a foot long, and it wae
about that wide (indicating) something like 3 inches wide the
Spout comes up from the end of it. That oil can was sitting just
above the fire hox door, what is called the drip pan, not a drip a
? ?
—
JAMES T. HORTON. 95
but a pan, about 3 feet from the floor L guess. It was pretty hot
there. It burnt my hand, and | put it the first place | could get
it, and the engine in rolling around rolled it around and broke it,
When the engine coupled to the train it was this jar that knocked it
off. Mr. Horton was still engaged in his duties as engineer when
that happened. It is not a fact that Mr. Horton was not on that
engine at the time we coupled it up and it is not a fact that Twas
not on that engine at the time it was coupled up, but was off some-
where getting breakfast. 1 didn’t catch the engine as it was pull-
ing out. I got breakfast that morning at Johnson Street about
6:30 when I first got down there, before the engine came out. l
saw the glass fall. The glass had 200 pounds of steam pressure on
it at the time and that heated the glass. It had been hot all night
I guess, Those glasses will stay hot that way during a run, so hot
that they burn your hands. It fell on the iron deck inside the cab,
and broke all to pieces. It is half an i-ch thick T guess. It broke
into picese so it couldn't be used. 1 picked it up and threw it out.
Horton was running his engine at the time. [ got back to Raleigh
about 8 o'clock L suppose, something like that. T didn’t get a new
glass. It wasn’t my place. It is the engineer's place to put any-
thing that is broken after the engine leaves the round house on the
work report, and the people in the round house do the work on the
engine, The firemen attends to all the lights. The fireman attends
to firing the engine. 1 don’t attend to replacing anything besides
lanterns. They put it on the work report and the people in the
round house do the work. If some of the tools are gone T get them.
There is nothing else T get. If T had gone and asked for a water
glass I suppose I could have gotten it, T didn’t ask for it.
37 I went out with Mr. Horton on his next trip when he left
here, The glass was situated in the cab on the left hand
side. That is my side, We got back off that trip the next day,
We left here again next morning on the same engine. We went
to Aberdeen on the first day and came back to Raleigh, We went
out to Aberdeen next day on the same engine and back to Raleigh,
and the next day. The glass was gone every trip and T knew it,
it was over on my side, T looked at it during the trips. You could
see it from either side. T have to get up to see it. It is not my
duty, nad T don’t constantly look to see how much water there is in
the boiler, and look at that glass to see how high the water is in the
boiler when T am steaming the engine. Sometimes the fireman
does not pay attention to the water, the engineer does, The fireman
ean if he wants to. When T wanted to | did it. Sometimes T would
not look at it until every 3 or 4 hours. Mr. Horton seemed to be
suffering pretty badly when T took the engine, he seemed to be in
great pain. Te had a handkerchief over his eyes and his hand
over the handkerchief.
Q. How much do you get paid to come here and testify?
Objection by defendant. Overruled. Defendant excepts.
Exception No. 16.
A. Fight dollars a day. T average about from $150 to $175 a
4—691
96 SEABOARD AIR LINE RAILWAY VS.
month wages. I was ordered through the superintendent of motive
power to come here. No otlicer served any paper on me to come.
Redirect:
The Brotherhood of Engineers regulates how much pay I get for
attending court as a witness in behalf of the railroad, the same
Brotherhood that Horton spoke of as being a member of. All
engineers get the same for attending court.
38 P. M. Marruews, witness for defendant, being duly sworn,
testified :
Direct examination :
Iam a machinist on the Seaboard Air Line Ry. In 1910 I was
round house foreman during the day. On the 4th of August, 1910,
Mr. J. T. Horton did not report the absence of a guard glass from
the Buckner water gauge on engine 752. | have no recollection of
having a conversation with him. [| did not tell Mr. Horton that
these guard glasses were kept in Portsmouth and to go ahead and
run his engine that I would send and get one. Forms are gotten
out by the company for engineers to make out in writing defects in
their engines. Verbal reports are not regarded. The reports are
left at the round house office, and the roundhouse clerk distributes
them. Each man takes his slip out of the box that is provided and
makes repairs. The round house foreman has charge of the round
house, he and the general foreman and the master mechanic look
after repairs.
Q. If this defect had been reported on the work report by engine-
man Horton, the absence of the guard glass, what would you have
done? ,
Objection by plaintif. Sustained. Defendant excepts.
Exception No. 17.
T had means at hand by which I could have remedied this defect
if it had been reported in writing on the work reports of J.T. Hor-
ton. I would have remedied it by having a glass cut. I had a
thick plate glass laid aside. I had the glass there out of which thev
could have made one of these guard glasses. To am familiar with
the duties of an engineer in regard to inspecting his engine. He is
not required to go under his engine, he is required to report every
defect of that engine so that the work required ean be done on it so
that he can make a successful trip. The duties of an inspector are
to inspect engines from the running board down underneath the
engine.
39 Cross-examination :
If there is any trouble with the electric motor the engineer re-
ports it. The air man oils the motor every trip, he or his helpers.
Our electric man inspects the electric motors and head lights. The
man that does this work is not an inspector. We have day inspect-
ors and night inspectors. He inspects it from the running board
JAMES T. HORTON. 27
down. They can go in the cab when they see fit to send them in
there for any special duties. Before this time Master Mechanic
Bissett issued a bulletin, requiring an inspection of the old style
water glasses at Raleigh. Inspectors were to inspect them. There
was a special order issued for the inspector to do the job outside of
his daily routine of duty. They gave it to the inspector. I had
glass that could be used for guard glasses. 1 know that was a pat-
ent. I have put these glasses on. The glass is about a quarter of
an inch thick. I was doing that on Buckner’s patent. A bulletin
had been issued for the inspection of the old style of glass with a
wire sereen before they used this. It was a pipe with splits in it,
they used the gauge wire to protect them before they adopted this
heavier glass, and the bulletin was to see that this was on it. All he
had to do was to check each engine and find out. That bulletin
went out of force after he checked his engines and went to the
office, just as soon as he had checked the number of engines that
ran in that terminal he was through. When the Seaboard road
turned a water gauge over to a man it is under that man’s charge
until he returns with that engine from the trip and makes out
his work report. As big a thing as a smoke stack T guess he would
have seen that. [le would have been a very foolish engineer to have
started out without a steam gauge. It registers the steam pressure
of a boiler. T didn’t know whether that engine had a guard glass
or not. There are two work reports on the 28th because it takes 2
sheets to hold it. T have seen them make as many as six. He
made 2 sheets hecause he didn’t have enough room on the first one.
On this one the trouble is engine brakes don’t hold. Con-
40 nect up tank, put brake shoes on. Examine flat places on
D. wheels. Both main wedges set up. That is all that was
signed for. T had a conversation with Charlie Murray after the last
trial, the man that TTorton testified he went to to get the glass cut,
he said ves he had cut several for the men. T don’t know why they
went over there. T have cut them for the company myself—had
them cut. T have no recollection of telling Murray that he had
better stick to the company as he was working for them. T have
never said a thing to Murray about sticking to the company. I
positively deny it. T want to tell the truth. T talked to all the
engineers and they frequently told me about defects and troubles
about engines. T go down to the coal chute frequently and talk
to them and they come to me very often and talk to me. Horton
never asked me for a guard glass. T have no recollection whatever
of a conversation about it with him.
Redirect :
(Counsel hands witness glass %4 inch thick, two pieces of which
would fit the Buckner gauge.)
That is the kind of glass we used. The work entered on the
back of the work reports does not necessarily represent all the work
that was done on that engine at the time. Each man takes his pro-
portionate work out and does it. If an engineer asked for a defect
28 SFAROARD ATR LINE RAILWAY VS, °
to be repaired and asked for it on his work report, and that engine
is returned to him without those things being repaired he could
refuse to go ont on that engine if it is detrimental to the company’s
service and would be injurious to him. He makes his report to the
roundhouse foreman, the general foreman or the master meehaniec,
either that he gets to first.
Reeross-examination :
If they tell him to take the engine anyway, and he refuses to do
it, that is a case for the company to handle between employer and
emplovee.
41 The Covrr: Se it is the duty of the engineer before he
takes that engine to run it out te see that all the defects which
he has reported have been properly remedied ?
A. Yes, he ean glanee over his engine and see. A good man ean
tell by glancing over it whether the work has been done or not: that
is the rule of the company.
Mr. Dovarass: How long would it have taken an engineer to
have found out that those things had been performed? — (Counsel
hands witness a slip of paper.)
(A. The greatest portion of this he could walk around his engine
and see. Tle ought to be able te tell that in 15 or 20 minutes. The
rule gives him 30 minutes before leaving time to vet ready to go.
The inspeetor who inspected this engine 752 the 27th day of July
made a report. T don't think Lean get the report. Tle is supposed
to make a report on that engine. Tf he didn't it is in the master
mechanic's office, Te keeps the reports in his office. The Inspector
makes a report, and they ought to be in Mr. Bissett’s office. Mr.
Brown was the day time inspector. TL don’t know where he is. 1
have seen him to-day. T guess he is outside, E. C) Boone was the
night foreman. T don't know where he is,
Redirect:
It would take an engineer just long enough to step up on his
engine to discover whether or not the guard glass had been placed in
the engine. Tle could stand on the deck and tell,
Reeross-examination :
Tf an engine inspector is looking for defects it would not take
any longer than it would take the engineer to discover them.
J. EF. Brows, witness for defendant, being sworn, testified :
Direct examination:
Tam employed by the Seaboard Air Line Railway. 1 was
42 emploved by them in 1910—— July and August. 1 was engine
inspector. My duties as engine inspector at that time were
to inspect engines from the running boards down and underneath
the engine. It was my duty to inspect inside the cab,
JAMES T. HORTON. 29
Cross-examination :
If the engine came in on the 27th on my time T made a report.
On that day T didn't make a report of defects above the running
board. T have never made a report of defect on engine above the
running board, The electrie man looks after the eleetrie lights.
They had inspectors for electric lights. They had inspectors for
every portion of the engine. The boiler makers inspected the boiler.
Ile went in the fire box inside the cab and in the front end of the
boiler, T inspected the machinery part of it. T did net go in the cab
to see steam pipes. Tf Thad seen one and heard it blowing loose in
the eab T would have told the inspector of that portion of the engine
so that he would have reported it himself. T would have made a
verbal report. If the pipe or brake valve to the Main reservoir was
leaking in the cab T couldn't hear it. T eouldn’t hear it from the
amount of noise; before | can get to it the engine is dead: there is no
steam on it for me to determine. The engineer would report. it
when he came in. If the defeet occurred after it stopped T couldn't
have determined that. Tt would be when the engine had full steam
on it that it happened. and the engineer couldn't help knowing it.
It would not get in that fix just after he cut off steam. T haven't got
anything to do with the pump. ‘The air man or the one that looks
after the steam apparatus will tell vou that. T only look after the
machinery part. They had a steam apparatus man. Tt was his duty
to Inspect the steam apparatus, On that guige part of the steam
apparatus the steam goes into that.
18 Redirect:
Tt was the engineer's duty to inspeet the inside of the cab. Tt was
under his observation only. The steam man reports all the defects
in steam, or if there is any steam leaking when the engine comes in.
The engineer would report the absence of guard glass or anything
like that—no one else. Tle would put it on his work report and put
it in at the office. The machinist, the one that works on the engine,
would do the work,
Recross-examination :
Mr, J. R. Bissett, master mechanic, did not paste a bulletin hold-
ing me and the night inspector responsible for water guage glasses
on each locomotive that T know of. T never saw any bulletiv .o that
effect.
D. K. Wricur, witness for defendant, being sworn, testified
IT am an engineer on the Seaboard. T have been an engineer 28
vears, T have been with the Seaboard about TS'. vears. To am
chairman of the legislative board of the State for the Brotherhood of
Locomot've Engineers. Tam familiar with the equipment of engines
on the Sco ooarg Sir Line Railway in respect to gauge cocks and water
glasses, Tam familiar with the construction of engines of class 752.
They are equipped with guage cocks and water glass. Gauge cocks
are to determine the water level in the boiler. The gauge glass is
AFR
80 SEABOARD AIR LINE RAILWAY VS.
for the same purpose. You can o}-2rate an engine with the gauge
cocks and the water glass cut off. You can do that safely. I have
operated an engine that had no water glass on it. The guage glasses
have been in use 10 or 12 years. Prior to that time we used only
guage cocks. If anything should happen to the gauge glass it is the
engineer’s duty to shut the valves off and run the engine with
q4 the gauge cocks. He can do that all right. It that happens
while he is on the line of road it is his duty to shut off the
Water glass and use the guage cocks. When he gets to the terminal
he should report defects on form provided for that purpose—a work
report. It is the duty of an engineer when he gets on his engine to
inspect the engine and see that it is in proper condition to make the
trip; that it is supplied with the necessary tools, water, ete. If the
engineer should discover while on the line of road that the water
gauge ha~ no guard glass it is his duty to shut the valves off and run
his engine by the gauge cocks. That should be done to avoid ac-
cident, probability of glass bursting, and to afford protection to his
eyes. In my opinion as an expert it is dangerous to use the Buckner
water gauge without the guard glass.
The gauge cocks and guage glass are for the same purpose and
perform the same functions on an engine. The gauge glass is a
convenience and a check. We have two means for determining:
this one is for convenience. They are both for the purpose of deter-
mining the amount of water in the boiler. T have only used the
water glass twelve vears. 1 don't know how long it has been in use.
Ten or twelve years ago was the first time T used any on the Sea-
board. The water glass attachment is not more accurate than the
gauge cocks. You can’t determine the height of water in the boiler
above a certain point with more accuracy that with the gauge cocks.
They are practically the same. The water glass is not as reliable as
the gauge cocks. They are used as a convenience. 1 think that is
for a check upon the other. If the gauge cock pet clogged up with
mud, clean them out, but it is rarely they get clogged up. Mr. Hor-
ton and myself are not personal friends.
It is the engineer's duty to report defects in the cab, He reports
them on a form provided for that purpose in writing. It is the duty
of an inspector in inspecting engines to inspect the parts under the
running board.
45 Recross-examination :
On the 4th of August, 1910, and prior thereto the Seaboard at
Raleigh did not have a special inspector whose duty it was to inspect
this water glass in the cab that I know of. They didn’t have a gen-
eral inspector that inspected water glasses that T know of. or of steam
apparatus. T don’t know whether they had one at any time or not
except the general inspector that inspects under the running board.
[ don’t know whether they had any special inspector for that par-
ticular work.
JAMES T. HORTON. $1
Dave CaMPBELL, witness for defend:nt, being sworn, testified:
Direct examination:
I am engineer on the Seaboard Air Line. Have been for seven
years. I am familiar with the duties of engineers on the Seaboard
Air Line. It is the duty of an engineer when he gets on his engine
to see that his engine is properly equipped. When he comes back
from his run it is his duty to inspect his engine and report what
defects there are in writing. The engineer is required to make a
visible inspection all over the outside and on the inside of the cab.
The engineer is not required to inspect below the running board or
to get under the engine. I am familiar with engines of class 752 on
the Seaboard. It was equipped with water glass and water glass con-
nection and gauge cocks. Gauge cocks are used to determine the
amount of water in the boiler. If the guard glass on the water glass
is missing it would be the engineer’s duty to report it to the foreman
and have it repaired. If he discovered that it was missing while on
the road it would be his duty to shut off the water glass cocks and
not use it. He could operate his engine all right without them. |
have operated an engine that had no gauge glass on it many a time.
It would be dangerous to operate a Buckner water glass without the
guard glass. The tubes on the inside burst quite often. The
46 steam pressure on engines of that class is 200 pounds.
Engines of that class are of the same character, and they have
the same steam pressure.
Cross-examination :
I have been running engines here seven years. I have been run-
ning with these tubes ever since I first commenced. I couldn’t say
how many I ever had to break, probably on an average of one every
six months. I am now using that style of water glass with a pipe I
should assume half an inch in diameter, with a very small slot cut
in it. It has a tendency to check it a little. A good many engines
are run on the Seaboard now with that kind of glass.
(Counsel hands witness a water gauge which is not a Buckner
gauge. )
I have not used one of these in nine vears. That is not an absolute
protection because that glass will break. Cold water hitting it when
it is hot will break it. T used these glasses 9 years ago. That is a
safer glass than the one I am using now. There was no inspector of
Steam connections at Hamlet as I know of. The roundhouse was
there. I don’t know the condition or equipment of engine 752 at
that time. I don’t know the condition the engine was in at all. I
have used a Buckner water glass. Quite a number of engines are
equipped with them. I couldn’t state the numbers of them all. J. T.
Ilorton was a good engineer.
Redirect examination :
The Buckner water gauge when the guard glass is in place is the
best I have ever seen. With the guard glass out of place it is
$9 SEABOARD ATR LINE RAILWAY Va.
dangerous, Whichever way it is clovated it will throw the force of
the glass that way. When that slot is in proper place it is turned
toward the engineer right hand side of the engine,
M7 I. B. Barner, witness for defendant, being sworn, testified:
Direct examination :
1 am employed by the Seaboard Air Line, seeond division. — |
have operated engine 752 in the summer of LYLO. Tt was equipped
With a Buekner water gauge and had a guard glass, 1 was promoted
from fireman to engineer about seven years ago. | was examined
for promotion at the time that 2. TL Porton was examined. 1 was
examined in Mr. Bissett's office, Horton and LT talked over the ex-
CEO,
My sight was examined at the same time that Mr. Tlorton was
examined, Dr Battle examined me in his offiee on Wilmington
street. TP was present when Mar. Tlorton was examined. Dr. Battle
did vot ask me any questions, Tle did uot ask Mr Horton any
questions, Dr Battle told me his sight was defective in his right
eve, THe told Mr. Horton he would let hin go to work, but he wasn't
the Seaboard oeeulist: that he would have to come back and see Dr
Lewis, Lorton admitted that it was in his childhood days that his
eve Was hurt,
‘ ; ;
Cross-OX UUme:
T think it was about seven vears ago we were examined, We
were being examined for our evesight and hearing, to show. the
riilroad company it was normal, E suppose. Powas going te run
anengine. Tlorton was going to run an engine. We were pro-
moted, We were standing that test to complete our promotion. — |
passed diy test and was through with it, that is, TP went before Dr,
Battle first, then Mr. Horton, What T have said happened in the
room at the time. Twas still in the room after [owas examined.
We went there together, and | waited for Horton to vet through.
Horton was in the room when Twas examined. We were both in
the examination room at the same time. EF passed my examination
and Mr. Horton, as TP told vou, passed his examination, Dr, Battle
promoted Mr, Horton with this proviso, that he wasn’t the Seaboard
oceulist, but he would let him go toe work, but he must come
48 back to see Dr. Lewis, Whether he want back to see Dr.
Lewis 1 don’t know, ‘That was seven vears ago, and he
continued to run from that time to August, 1910, He was promoted
and held the place as engineer. 1 saw the test that Mr. Horton was
put through, Dr. Battle didn't ask us any questions, Tle had a
certain number of figures fixed on a dise which was put up on the
wall, and he would say, “What is that?” and | would suy whatever
it was, T don’t know how many questions he asked us while we
were in there. He would put this up on the wall and say, “What
is that?” T don’t know how many times he did that. 1 suppose it
might have been eight or nine times. T think that is all. T have
been examined another time for my eyes by the trainmaster on the
=a
| Seaboard, Mr. Thornton. Tle is our trainmaster on the second
division. I don’t think if was any more rigid. | was not with
Mr. Horton any other time when we passed examinations of the
eye. [| suppose it is customary every certain number of years to
| examine engineers. | suppose they skip four years. - know Mr.
Steele. Tle is an engineer on the Seaboard. George W. Steele is
his mame. | remember having a talk with him in the fall of 1910
at the same time | talked with him and Horton, LT remember hav-
ing a conversation by the Masonic Temple. 1 don’t remember tell-
ing Mr. Steele in that conversation that LT was examined at the same
| time Horton was, and that Dr. Battle didu’t ask us any questions,
and that Mr. Horton's eves were as good as my eyes. - can tell
what [do remember. [told Thorton | was willing for him to sum
mon me in this court, and that TE would swear that Dr. Battle let
him go to work, and that he did't question him. When 1 say
questioning as to his eves, | didi’t mean what was up on the wall,
but as to his vision, T did not tell Mr, Steele in that conversation,
or substantially tell lim, that Mr. Tlorton’s eves proved to be as
good as mine. | told him this: they let him go to work. Mr, Hor-
ton asked me for aflidavits, and T would not give it to him. Te
asked me if | would say this before another party, and [told him: he
could summon me, and T would swear that Dr. Battle said
| 49 he would let him go to work, TP did not say in that conversa
tion in words or substantiolly that Dr. Battle in that examina
tion never questioned that Mr, Tlorton’s eves were normal, - don’t
know anything about the condition of engine 752 on the days that
Horton was running i. Ponty know the eondition of the engine
when | brought it to Raleigh. T don’t know the date. There is
no possible way for me to keep track of the engines IL have run, |
am still working for the Seaboard, Tam) not under obligations to
them. They have not been indulgent to me. There is no case
where you could show it, and if they had been indulgent to me that
is no reason why T shouldn't tell you the trath.
JAMES 'T. HORTON. $8
Dr. K.P. Barrie, witness for defendant, being sworn, testified :
Direct examination:
Tama practicing physician in the city of Raleigh, 1 devote my
attention to eve, ear, nose and throat. T have been practicing medi-
cine in Raleigh since ’86,— T attended the University of North Caro-
lina first, then the University of Virginia, and Bellevue Tlospital,
and | took a special course at the Roval and London Academy of
four months, once or twice, at different times: since then, in New
York. Tam associated with Dr. Lewis in practicing and have been
since ’86.) Dr. Lewis examines the eves of engineers on the Sea-
board Air Line. and did in 1905, He examined them prior to 1905
and since, In his absence TP occasionally examined the eves of
engineers; when Dr. Lewis was away T would make a report on a
blank furnished by the company. (Counsel hands witness a paper.)
The paper handed me is one of the blanks. T filled out this form,
5—691
$4 SEABOARD AIR LINE RAILWAY V8.
It is all in my handwriting; it was inade April 18 1905; it is J.T,
Horton’s examination.
50 Paper identified by Dr. Battle i is offered in evidence by de-
fendant and marked “Exhibit 1.’
That is all in my handwriting and filled out by me.
Examination is read by Dr. Battle, as follows:
“Seaboard Air Line Railway.
“Certificate as to Ilearing, Visual Power and Color Perception.
g 1
“Raveicu, N. C., April 18, 1905,
“Name, J. T. Horton, white. Division, Second. Occupation,
engineer, Age, 24. Acuteness of sight and hearing, distant vision,
Right eve, 20-70*, Left eye, 20-20, normal. Near vision: No, 2 J
from 8 to 4 and even No. 1 at 5 inches with some difficulty. Left
eye; No. 1 J, normal. Color sense: Test) skeins: Light green,
Green: All shares correctly picked. Color sense normal. (Other
parts of examination paper not filled out.)
“Examination approved: W. RK. Hudson, Supt. of the Second
Division. R. H. Lewis, M. D., by K.P. Battle, M.D... Surgeon,
“Date: Raleigh, Apr. 18, 1905. Location: Raleigh.
“Note: There is a very slight linear sear on cornea, visible on
close inspection only, which is the cause and the only cause of the
slight interference with vision in the right eve. Tt is very old. and
if it ever changes it will be for the better instead of worse. There
is no disease in the eve whatever.
“K. P. BATTLE, Jr
The figures 20-70 means that the sized letters that the normal eye
should see at 70 feet is seen by that eye at 20 feet. T would say that
aman has good sight who has normal sight in one eve and 20-70 in
the other. IT would say that a man has very fair -ight who has nor-
mal sight in the left eve and 20-40 in the right eve. That statement
shows correctly the result of my examination of Mr, Horton.
51 Cross-examination :
I would say that if a man’s eye is reduced from 20-20 to 20-70
he has impaired vision to that extent. That is the Way we measure
sight. The sized type that a natural eve distinguished at 70 feet
he can’t see better than 20 feet. T would call that about 20-70 in
per cent in that sense. If a man’s seeing power is reduced from 70
feet distance and is brought up to 20 feet, when he ought to see an
object 70 feet and can only see it a distance of 20 feet, so far as the
acuteness of vision is concerned, I would eall that just a slight
trouble. So far as that eve is concerned, the acuteness of vision
would be very serious. I remember how the sear on the cornea
of Mr. Horton’s eye looked. It was a small. rather whitish line
in the lower part of the bulging clear surface in front. At the time
you examined him there was no scar entirely across the cornea.
JAMES T. HORTON. 35
I don’t remember the looks of the eye exactly, except as brought to
my mind by notes at that time. I said there was a very slight little
sear on the cornea, visible on close inspection, not at the very lower
part, below the middle. | don’t recall the axis. There is a slight
tendency in a sear of the kind I saw to absorption. It is the usual
course for them to get a little better as the time goes on, but not
very much. It ought to have gotten better in five years, if it is
going to get better at all. I do not recall examining Mr. Horton
after his injury in 1910, T think he was treated for a wounded eye
in my office at that time by Dr. Lewis. Verv likely, I went in and
assisted Dr, Lewis with this man’s eyes. T don’t remember. 1 don’t
recollect telling Dr. Lewis in the presence of Mr. Horton that there
was a wound across the cornea. T have no distinct recollection, — 1
think T saw him, but T couldn’t swear to it at all. T would not have
kept a record of it if T had. The record would be in Dr, Lewis’
book in his office. Tam still in partnership with Dr. Lewis. The
record does not necessarily show whether I aided him in it or not,
That might not be in the record in his book; certainly not,
2 whether T was there or not. Tf T were examining a man’s eve
and found only 20-70 T would not consider that a slight de-
fect in that eve, so far as the vision is concerned. T looked to see
what caused that defect,
It is admitted that the statement has been in possession of the Sea-
hoard Air Line Railway since it was sent in by Dr. Battle,
W. S. Burruss, witness for defendant, being sworn, testified—
Direct:
T am chief clerk of the master mechanic’s office. T am located at
Johnson Street, Raleigh. (Counsel hands witness a statement signed
by plaintiff.) T was present when TTorton signed that statement and
witnessed it. Tle made the statement to me. T asked those questions.
(Witness reads statement, “Exhibit F.’) Mr. THorton’s condition
was normal at that time, the same as it had always been. He made
a statement to me as to what he meant by overlooking to report the
engine not having the guard glass. He said it was on account of re-
ports that were being circulated of his having been drunk and carous-
ing around, and he further said it was a wonder he hadn’t overlooked
a meeting order on trains, from the condition he was in. If an en-
gineer is employed or discharged in case it is a mechanical matter
the superintendent of motive power informs the master mechanic,
and he (the master mechanic) has control of it. T never received
any notice that Mr. Horton had been dismissed. T asked Mr. Hor-
ton what he meant when he said he was worried. He said it was
natural for him to be worried when reports were being circulated
and it was reported to Mr. Tix that he had been drinking.
Cross-examination :
Horton said it was on account of his being so worried and troubled;
in other words, when a man feels like he is about to lose his
53 job his frame of mind is such that he will not remember
much. Horton said he was worried on account of reports
ge SEABOARD ATR LINE RAILWAY VS.
being circulated and on account of the danger of losing his job. He
said it was a wonder he hadn't overlooked a meeting order and run
into a train. Tle gaid he was so worried he didn’t notice missing the
water glass. Tle said in the written statement that I read, that the
glass was missing, that he did not report it because in his frame of
mind he overlooked it. Tam in the employment of the Seaboard Air
Line and clerk to Mr. Bissett. At the time the guard glass was miss-
ing, | don’t think we had one in stock, but we had a glass that could
be cut. We cut them and put them in for several different engineers.
Davis was there then; Porter was there then, and Branch also cut
them. At the time that Horton was hurt, the men claimed they
were cut for the engine. T did not see them eut it. T had reports.
Horton didn't tell me that he was suffering so that he couldn't make
out a report for anything. Tle may have had a little black flap on
his eve that he wore around town. T didn’t notice it at the time. T
was getting that statement for the purpose of getting facts in the
case and laving them before the superintendent. W. L. MeDowell
made out Form 408, Tle was about 19 vears old. We don’t require
the engineer to make them out usually. T have got several that were
made out on the typewriter. Tlorton didn’t feel like making out
Form 408 that day, T reckon.
Redirect :
The paper handed me by counsel was read and signed by Mr, Hor-
ton,
Defendant offers paper in evidence marked “Exhibit —.”
Defendant offers in evidence release signed by plaintiff, marked
“Exhibit G.”
Lewis Arcuer, witness for defendant, being sworn, testified :
Direct examination:
Tam foreman in 8. A. L. shops here—general foreman.
ao I was general foreman here in August, 1910. T recall the
time that Engineer Horton claims to have been injured at
Apex. T got on that engine the afternoon that Engineer Horton
came on it. Discovered it had no guard glass. Water glass was
broken. Cab didn’t have anything wrong with it: it was clean.
When water glass explodes as the result of steam pressure, there is
muddy water over the cab, There was no evidence of that. T saw
no glass in the cab. T saw that the glass was broken and there was
no guard glass. T saw no indication of glass bursting. T have
had thirty vears’ experience, ever since T was 15 vears old. During
that time have been machinist. Tam familiar with the construction
and operation of engines. T am familiar with the construction of
the Buckner water gauge and the operating of same. Tn my opinion,
it is the finest water glass shield T have had anything to do with.
T had the material here out of which the guard glass could have
been made,
Counsel hands witness a piece of glass about one-fourth inch thick,
and asks if that is the kind of glass he had. He answers “Yes.”
There is a supply of that glass on hand. Tt could be cut in that
-_
. JAMES T. HORTON. 37
shape. With those two pieces in the Buckner gauge, the Buckner
water glass is just as safe as it would be with the other glass; if any-
thing, better.
Q. As soon as vou ascertained that this water glass was broken
and the guard glass missing, what did you do, with regard to sup-
plying the guard glass for the water gauge on that engine?
Objection by plaintiff. Sustained. Defendant excepts.
Exception No, 18.
Defendant offered to show by this witness that he cut the necessary
glass and placed it in the Buckner gauge on the engine used by
Horton.
5d Q. Did vou see any of this glass cut on the evening of
August 4, 1910?
Objection by Plaintiff. Sustained. Defendant excepts.
Exception No. 19.
Tt is the duty of inspectors to inspect engines below the running
board. Tt is the duty of the engineer to inspect the cab. The engi-
neer has a form and must report all defeets at the end of each trip.
We have got a little vellow form for that purpose. When the engi-
neer makes this report, the round-house clerk copies it off and gives
to each man his work. The report is made by the engineer in writ-
ing. It is required to be made in writing by the engineer before the
work will be done. This engine was equipped with gauge cocks.
An engine can be operated with gauge cocks alone, without a guard
glass. T am familiar with the duties of an engineer. Tt is an en-
gineer’s duty, if he discovers that his guard glass is gone to report
it and to refuse to go out until one is given to him,
Cross-examination :
T couldn't tell in what condition the gauge cocks on engine 752
were, on that last trip that Mr. Tlorton started out on. There was a
bulletin issued there some time ago that the old pipe to guard glass
must be taken off and the Buckner glass to sueceed it. That is all
I remember about the bulletin. Glass had been eut for this water
gauge, because, just about sixty days before, one was taken from
Mack Tve’s engine and he asked for one and refused to go out until
he got it. That was engine 40 or 41. Tle wanted the glass like that
to put it on his engine. Somebody took his, T suppose. They are
very valuable for a water glass. Some man may have broken his.
The are man is supposed to test the air and electricity. Te
56 goes above the board. He goes in the cab. THe inspects the
air and electric lights. Tt is his duty to inspect that before
they go out. He is not called the inspector at all. Tle does the
testing. THe does not inspect,
J. B. Pexpieron, witness for defendant, being sworn, testified :
Direct examination:
T am an engineer. Have been with the Seaboard all my life—
thirty vears. I am familiar with the duties of an engineer. The
Sate
Sy
88 SEABOARD AIR LINE RAILWAY VS.
duties of an engineer when he gets on his engine are to look after
everything and see that everything is in shape, to the best of his
knowledge. If engineer should find any defect in his water glass
before starting on his run, it is his duty to report it. If he discovers
a defect in water glass while on the line of road, or if the guard
glass should be missing on the line of road, it is his duty to shut it
off. Engineer can run his engine all right with gauge cocks. | have
run an engine without a guard glass. In my first railroad experience
I did not have any guard glass or water glass. I operated engine
twenty-odd years, or more, without a guard glass, It is safe to run
an engine with gauge cocks. Tam familiar with the equipment of
engines on the Seaboard Air Line Railway of the 752 class. T prae-
tically know the equipment of all engines on the Seaboard Air Line
Railway, - have not run engine 752, to my knowledge. Engines
on the Seabourd Air Line Railway are equipped with gauge cocks
and water glass, ‘They were in 1910, It is the duty of an engineer,
in regard to the condition of gauge cocks, while on the run, to see
that they are properly opened and in working order, At that time,
in 1910, it was the duty of engineer, in regard to inspecting his
engine, to see that everything was in good shape and all right, par-
ticularly above the running board and in the cab. The object of
the guard glass used in connection with the Buckner water gauge
is to keep that glass from flying if the glass should happen
‘7 to break. With the guard glass in position, the Buckner
water gauge is, | think, absolutely safe. Without the guard
glass, T think the Buckner water gauge is dangerous. Those inner
glasses are subject to breaking. T have had them to break with me
many a time.
The Courr: Why is the water glass put on the engine at all?
A. Tt is an additional safeguard, to carry the water more uni-
formly, You can see better. You can determine with the gauge
cocks how much water there is in the boiler. Tam familiar with the
duties of inspectors on the Seaboard Air Line Railway. It is their
duty to inspect all machinery below the running board on the side
underneath the engine. When the water glass explodes by reason
of steam pressure it messes up everything and vou have to have a
general cleaning up.
Cross-examination :
Tf T had to start to-morrow morning on an engine, and this eve-
ning found out that guard glass was gone, T would not go. T would
shut off steam. Tf T was running the engine in this evening and
discovered the glass was gone, T would report it or my work report.
If the flag was missing T would get another before T went out. Tf
torpedoes were missing T would put it on my work report. T always
find them on my engine. If the glass was missing the morning
before T started out, T would put it on my work report. T would put
it down in writing to protect myself. T don’t know anything about
the practice of they going and notifving the foreman and he makes
a written requisition, or his clerk does, on the stocekeeper himeeclf.
I don't know what the rule is at Johnson Street. It is not the in-
a a
JAMES 7. HORTON. 89
spector’s duty to inspect under locomotive. The inspectors of loco-
motives do not go in the cab at all. The condition of the boiler is
ascertained from my report. The boilermaker ascertains whether
the stay bolts are right in the boiler, He inspects the stay bolts.
The government requires him to do that once a month. He
5S does not inspect the water glasses; the engineers do that. I
am still with the Seaboard. I get eight or eight dollars and
a half as a witness, When I am not a witness | make $7.43. T have
never been a witness except for the railroad.
Defendant closes, reserving the right to examine Mr. W. 'T. Smith.
Plaintiff introduces the following testimony in rebuttal:
Cuares TH. Murray, witness for plaintiff, being sworn, testified ;
Direct examination:
Tama flagman on the Seaboard. I have been in the employment
of the Seaboard twelve or fourteen months. In August, 1910. T was
working for the Baker-Thompson Lumber Company, Raleigh. In
July, 1910, 1 was working for the Baker-Thompson Lumber Com-
puny, Raleigh. T have known J.T. Horton three or four vears.
Q. State whether or not he said anything to vou at any time. if
so, When, in respect to cutting glass for him for the water gauge?
Objection by defendant. The Court overruled the objection and
stated in the presence of the jury that this is competent only as cor-
roborative testimony. Overruled. Exception.
Exception No, 20.
A. Tle came to me about the first of August, 1910, and told me he
would like to get me to cut him a water glass; he had heard I had
been cutting some,
Q. Who had you been cutting them for?
Objection by defendant. Overruled. Exception.
Exception No. 21,
A. For two or three engineers on the Seaboard, First Di-
vision,
59 Q. Why did he state that he wanted you to cut him one?
Objection by defendant. The Court overruled the objection and
stated in the presence of the jury that this is competent only as
corroborative testimony, Overruled. Exception.
Exception No, 22.
A. He said he did not have any on his engine, and that there were
none in the storehouse, and he wanted me to fix it. He said they
didn’t have any in the storehouse. Powhatan Matthews asked me
if I cut the glass. He asked me if Mr. Horton asked me to cut it
for him. T told him he did. It was about the first of August that
Mr. Horton asked me to cut the glass—before he was injured,
Cross-examination :
T was glazier at Baker-Thompson Lumber Company. | would cut
this guard glass out of plate-glass. It runs in different thicknesses,
40 _ 7
SEABOARD AIR LINE RATLWAY V8. |
anywhere from one-eighth to thico-eighths. It would be three-
eighths to one-eighth, according to the different kind of glass. To
eut Mr. Horton a glass afterwards. 1 think it was after he was
hurt. | didn’t get anything for cutting it. T cut it as an aecom-
modation,
J. A. Massey, witness for plaintiff, being sworn, testified :
Direct examination:
I live in Raleigh. In August and July, 1910, T lived in Raleigh.
In July and August, 1910. 1 was working at Johnson Street store
room, Seaboard Air Line Railway. TL was night elerk. | think 1
went there in January, I91O, Lam not with the Seaboard new.
Q. 1 wish you would state to the jury if you know what
Go the custom and practice was in respect to engineers obtain-
ing supplies for their locomotives.
Objection hy defendant. Overruled. Exception,
Exeeption No, 238.
A. Tt was customary for engineers, when they wanted to get sup-
plies out of the siere room, to ge te the general foreman and get a
requisition for whatever they wanted. T have no knowledge of the
engineer making a demand in writing on the foreman. T know the
Buckner water gauge.
(Counsel exhibits water glass to witness. )
1 don’t think it would take a learned mechanic or machinist to
drop that glass in that hole that way. If the engineer discovered
that his guard glass was gone from his engine, it would have been
his duty to have gone to the foreman or general foreman and asked
for a requisition for a guard glass, or whatever it was he wanted. — It
Was the general custom: as to repairs that they want done. They are
supposed to put them down on a slip, known as the work report.
They didn’t have any of those glasses in stock when T was there, that
T have any knowledge of. T was night clerk at the time Mr. Horton
was injured,
Cross-examination :
They had glass down there for headlights heavy, thick glass.
As storekeeper T was required to show a requisition for the stuff that
T let go out of the store room——a written requisition. When an
engineer wanted anything out of the store room he had to show a
written requisition, and T would let him have it. That requisition
had to be signed by the foreman in order to empower him to let the
property of the Seaboard go. The rules of the company required
that the work reports of engineers, for the purpose of repairing de-
fects and getting necessary appliances for their engines, should be
made out in writing. They did not pass through my hands.
61 T couldn't give positive information about them. T am in
the insurance business now. | left the service of the Sea-
board last April a year ago, or May, about that time. I resigned.
-_
JAMES T. HORTON. 41
T had no trouble with the company before I left. I am not an
engineer. [| never have run as an engineer. [| have had no expe-
rience with work reports or engineers’ department of railroad busi-
ness.
Redirect:
I know by observation what the practice was down there.
Recross-examination :
Those things were not in my department,
Redirect :
But the supplies were in my department, and L know how they
were gotten from there.
Ernest Horton, witness for plaintiff, being sworn, testified:
Direct examination :
I am a locomotive engineer. | am with the Atlantic Coast Line.
I have worked for the Seaboard Railroad lacking a few days of being
four years. | was employed by the Seaboard Air Line in July and
August, 1910, on the Second Division. My headquarters were at
Raleigh. 1 am a brother of the plaintiff, J. T. Horton. I live at
the same house. | remember when he was injured at Apex. T had
a trip just before he got hurt and a trip right behind him on the
same engine. On the trip made on that engine just before he was
injured the engine had no guard glass.
62 Q. How was it on the trip just after the injury?
Objection by defendant. Overruled. Exception.
Exception No. 24.
A. It had a little thin glass in that shield there. It was very
greasy from machinists handling it, so that 1 couldn’t see the water
tube to locate the water level in the boiler, and | taken it out and
cleaned it. Tt was so thin it shook; this way (indicating, and when
I got to Cary I eut wedges and stuck in here to steady the glass, to
keep it from jarring back and forth in the groove of the shield.
When I discovered that the glass was out of here, when T made the
trip I went to the foreman and told him that there was no shield
glass.
Objection by defendant to answer, and motion to strike out.
Overruled. Exception.
Exception No. 25,
They have two foremen-—one day and one night foreman. 1
went to Mr. Dean, the night foreman.
Q. What was the custom and practice down there when a shield
to the guard glass or tube or any part of the engine was missing in
the cab?
Objection by defendant. Overruled. Exception.
Exception No. 26.
6—691
49 SEABOARD AIR LINE RAILWAY V8.
A. The inner tube—there would be a machinist’s report—but as
to that shield glass there, I could get a requisition and go to the store
room and get it and drop it down. Anybody could drop one in,
just as you are doing that now. 1 would apply to the foreman for
the requisition, verbally. The foreman’s clerk makes out the requi-
sitions and we carry them to him to get him to O. K. them. The
guard glass, bolts, nuts, anything for repairing machinery, is kept in
the store room—flags, torpedoes. We go to the foreman and get a
requisition and draw them, All the engines are equipped
63 with this tube, but not that style of shield. Only three or
four engines were equipped at that time with this Buckner
shield. This engine was the first one I ever ran with the Buckner,
shield on it. The office of this glass is to gauge the level of the water
in the boiler—to have it uniform, to see it.
Q. State if it was the custom and practice of engineers duwn there
to run their engines without the guard glass at all.
Objection by defendant. Overruled. Exception.
Exception No, 27.
A. As to that special kind, I only run this engine with that, but
the old shields that we did run without any guard glass on,
Objection by defendant to answer. Overruled. Exception.
Exception No, 28.
Q. State what was the duty of engineer if he found the guard
glass gone, whether or not it was his duty to shut off the guard glass
and run with the gauge cocks.
Objection by defendant. Overruled. Exception.
Exception No, 29.
A, I never did it.
Objection by defendant to answer. Overruled. Defendant ex-
cepts.
Exception No, 30,
It is the duty of inspectors at Johnson Street to inspect engines
completely—give a thorough inspection and make a report on
them—the entire engine. After J. T. Horton was injured, I fol-
lowed him in here that afternoon. [ forget what train I was on.
I saw him at 6:30 that afternoon. He was suffering very much, I
saw the eye itself that evening. It was very much inflamed. He
couldn’t bear the light on it; so I didn’t make any close inspection
right then, but next morning I dressed his eve. I taken the
64 bandages off. They had salve and liquid form in a bottle,
and a dropper to suck it up out of the bottle and drop it in
his eye. I would know the medicine if I were to see it again.
(Counsel shows witness medicine and eye dropper and salve.)
That is the salve I used; that is the liquid form, and that is the
dropper. I would drop it in his eye.
JAMES T. HORTON. 43
Plaintiff's counsel introduced in evidence two bottles of liquid and
jar of salve, with eye dropper, the labels on bottle showing numbers
101954 and No. 104435,
Objection by defendant. Overruled. Defendant excepts.
Exception No. 31.
I examined his eye three or four days afterwards. Across his eye
near the pupil was a deep sink; seemed like the outer tissue was torn,
and his eye was still very much inflamed at that time. That was a
fresh wound, the only scar. He suffered very much with it for five
or six weeks. He didn’t dare let the light touch his eve. Tle kept
cotton behind his dark glasses that Dr. Lewis gave him, which he
bought and wore for probably two or three months until he could in-
duce his eve to come out to the light from behind those specs. He
Was very restless at night. I stayed in the same room with him, and
he would get up once or twice in the night and use his eye dropper in
his eve. T examined his eye from that time on. The scar was still
there, and it has not passed away. Jim is not as old as I am. I
used to nurse him when he was a baby. He never received an in-
jury to his eve in his life when « child. He said his vision was very
much impaired after this injury, so that he could not distinguish off
yonder. He used to be in a military company. He was a good
marksman from his right shoulder. Tle shot with his left eve closed.
That was in 1900 and 1901—hefore he ever started railroading. He
was an excellent bird shot. He ranked foremost for target shoot-
ing in the military company. He fired from 200 to 1100 vards,
65 Cross-examination :
Under the Brotherhood agreement in force in July, 1910, it was
the duty of the engineer to give his engine just a reasonable in-
spection, and vou went to your work report and put down the defects
in writing. That report was put on file in the roundhouse, and that
was taken by the foreman and the work distributed among different
people who had charge of the work, and the defects were repaired
by workmen. Things were reported that it was discovered the
engine needed. | knew the guard glass was gone on this engine on
the first trip | made on it on August Ist. T don’t recollect making
a statement that T didn’t know it was gone.
(Counsel shows witness a paper.)
That is my signature. Chief Clerk Burruss was there when I
signed it. I was asked this question: “Did you notice whether or
not this fixture was equipped with water glass guard or whether or
not this guard glass was in place,” and I answered, “As stated
above, I took no particular notice.” IT was trying to protect myself
when I said I was not swearing to that statement. The guard glass
did not have any water glass shield on her. The purpose of that
glass was to protect your eyes from that glass tube bursting. I don’t
know what causes them to explode. I can’t figure it out. 1 am not
an expert. When there is no guard glass and they explode, the
44 SEABOARD AIR LINE RAILWAY VS.
glass is scattered and the engineer's eyes are in danger. Engines
are operated without them. You can never tell exactly when one is
going to explode. It don’t give you any warning. They explode
Without giving any notice. You couldn’t regularly run with a
uniform amount of water without the glass. I have run an engine
without the glass. I would not let the water get down below the
bottom gauge cock. When we come in from a trip with an engine
we make out a work report and sign it. Engineer is required to put
his name on it so as to identify his name with the engine.
66 That is for the purpose of knowing who had that engine in
the event anything should happen afterwards, and to see
whether the work report called for that work and to check it up
with the men who did the work. Different machinists do the work
on the engine. In lots of instances I know they did not repair
defects. A bad eccentric could break and strip your engine, tear
the rods out, tear the eab out, and maybe sling you out in the woods,
I would accept an engine in that condition just like T have other
things. You had to accept them if you wanted to hold your job.
An engineer before he is discharged is entitled to a hearing under
the organization of locomotive engineers. 1 was given a hearing.
The company discharged me and the Brotherhood expelled me.
GEORGE STEELE, witness for plaintiff, being sworn, testified:
Direct examination:
| am engineer on the Seaboard. IT am at present employed by
them. I have been an engineer seven or eight vears. IT heard a
conversation between Edgar Barbee and Jas. T. Horton. 1 don’t
remember exactly when it was. We were standing by the Masonic
Temple. It was something like two or three months after Horton
was hurt. Mr. Barbee came up and was svmpathizing with Hor-
ton about getting hurt. Several words passed, and Mr. Horton told
him he was having some trouble about settling with the company,
and Mr. Barbee said, “I know they can’t say there is anything
the matter with your eves, for you and T were in Dr. Lewis’ office
together, and we stood a satisfactory examination.” Mr. Horton
asked Mr. Barbee to give him an affidavit in case something would
happen, and he told him that was not necessary; that he would
just make me a witness in case anything happened.
Cross-examination :
They just said they both stood the examination in Dr. Lewis’
office together, and wasn’t questioned. [I have been an
67 engineer on the Seaboard six or eight years. T am familiar
with the duties of an engineer. It is his duty to see that his
engine is in proper working order and properly equipped. He re-
ports 30 minutes beforehand for that purpose. He is paid for that
time. He is paid until he gets off duty. He is allowed 15 or 20
or 25 minutes from the time he cuts loose from his train. Engineers
are supposed to inspect engines before they give them up and
make out a work report in writing. It is required by the company
JAMES T. HORTON. 45
to be in writing and signed by the engineer. That work report is
filed in the roundhouse, and the work distributed among different
ones to have the defects remedied. It is the engineer's duty to re-
port defects dicovered in his cab and report them on his work re-
port. When an engineer gets on his engine in the morning he tests
the gauge cocks to see that they are working. He tests his gauge
glass to see that it is in shape and in working order. The gauge
cocks indicate how much water is in the boiler. You could operate
the engine with gauge cocks alone without the water glass. The
water glass is arranged so that if anything should happen you could
cut it off, top and bottom, that cuts it clean out so that it is impos-
sible for it to explode. But with the steam on and the water on
and this guard glass gone, that inner tube is nothing but a thin
tube of glass. Whatever pressure the engine carries is on there.
Those glasses explode frequently. Nobody can tell when one is going
to explode. One might last 15 minutes and one 30 days. One has
never exploded with me. They buzz a little when they are going to
explode. The purpose of the guard glass is to protect anybody in
the cab. It protects the engineer from explosion. Without the
guard glass he is liable to be injured by flying glass.
Redirect:
I suppose these glasses could be obtained from the store room.
In getting articles from the store room you notify the
68 foreman verbally and you get a requisition. T never drew a
guard glass. T have never operated one of those glasses.
Recross-examination :
On the line of road if I discovered the guard glass was gone 1 would
report it in writing on the work report when T got in. It could be
gotten by requisition from the store room. My duty would be to
notify the foreman. It is the engineer’s duty to report any defects
they see on the engine in writing.
Redirect :
We never report that torpedoes are gone. We never say anything
about the flag being gone. The hostler is supposed to put those
things on.
Recross-examination :
When we come in we make the request in writing, and when we
go out we make it verbally.
Dr. A. W. Goopwin, witness for plaintiff, being sworn, testified:
Direct examination:
I live in Raleigh. I practice medicine. Am a general practi-
tioner. I studied at Bellevue Hospital, Medical College of New York.
Was admitted to the practice of medicine in this State and given a
license. I have been practicing in Raleigh 25 years and 4 months.
48 SEABOARD AIR LINE RAILWAY VS.
I know J. T. Horton. I examined him for insurance in the Brother-
hood of Locomotive Engineers, I signed that paper (indicating).
(Counsel hands witness a paper. )
The paper is dated November 30, 1905. Physical examination for
locomotive engineers’ insurance.
I wrote every word that appears in there. I made an examination
of Mr. Horton in my office. I tested his eyes in a general
69 way. They seemed to be in good condition. I tested both
eyes separately. I had him to cover his eye with his hand
and see what distance he could read ordinary reading matter, |
mean both big and little type. He read both with either eye. Be-
sides that he read signs in the street. I asked him about Wilder and
Dewar’s sign. That is at the head of Martin Street. My oflice is on
the west side of Fayetteville street, and his is on the east side of Wil-
mington street. He read it from my office. Physically I found him
to be in very good condition.
Plaintiff offers in evidence paper showing examination of plain-
tiff by Dr. A. W. Goodwin for the purpose of securing it surance,
the paper containing the statement that he examined plaintif® on
November 30, 1905, and that he had two good eves. Defendant ob-
jects. Objection overruled. Defendant excepts.
Exception No. 82.
The Court stated to the jury that this paper is admitted as corrob-
orative evidence only.
Cross-examination :
I considered the applicant in such condition of health as to recom-
mend him a proper party to be insured. That seems to be an in-
surance organization. It insures the lives of engineers. T had Hor-
ton just simply reading. 1 didn’t have any test letters. I made a
casual examination of his sight. 1 was not making that careful ex-
amination of his eyes that would be made by an occulist who is de-
termining accurately the extent of the vision in his two eyes. I
made the examination to see whether he could run well enough—
I had in my own mind an engine. He was fireman, engineer, or
something on the Seaboard. In my examination of his sight I took
into consideration that he was running on a railroad. I knew he
was running on the railroad. I had known him before. I didn’t
make this examination of the eve by the Snelling test; that is
70 not in my practice. That particular form of examination is
done by specialists as a rule. If the patient should come to me
with defective sight, I would send them to somebody else. Specialists
have means and apparatus for testing sight. I made this examination
only in a general way. Dr. Battle has been practising here a num-
ber of years. I don’t know just exactly. T should say 20 some
odd years. He is a specialist of eve, ear, nose and throat. He is
in good standing here. Stands well in this community as a special-
ist. He is among the foremost, I think.
JAMES . HORTON. 4?
Redirect-examination :
If the jury should find from the evidence that Horton has got
20-70 sight in one eye and normal in the other, would he, in your
opinion, be suited for a railroad engineer’ duties?
Objection by defendant. Overruled. Defendant excepts.
Kixception No, 33.
A. I should not say se. That is my general opinion.
Q. In your opinion, could a man with an eye like that pass the
examination that you put to this man?
Objection by defendant. Overruled. Exception.
Exception No. 34,
A. I do not think he could have read the print I showed him.
Recross-examination :
I did not undertake to get his percentage of sight in the two eyes.
tedirect :
Ile seemed in a general way to read as well with one eye as the
other.
71 J. T. Horron, plaintiff, recalled:
Direct examination :
Mr. Shot, whose eves were injured on the Seaboard, lived at No. 9
Polk Street, between Wilmington and Blount. I never went to Mr.
Shot’s in company with Mr. Hopkins. 1 went there once. 1 was
not there Sunday. When I went my brother Ernest went with me.
Dr. Lewis and my brother Ernest dressed my eye after 1 was hurt,
and my other brother and my mother. My mother is at home now.
She is an invalid. Dr. Battle tested my eyes when I was promoted.
At that test he didn’t say anything about any difference in the seeing
powers of my right and left eye. 1 didn’t discover any. I could
read as well with my right as my left eye, at a distance, and close,
too. I have never made any statement to Dr, Battle about any injury
received by me. I have never in my life made a statement to Mr.
Hopkins about any injury received by me. I signed this report that
Dr. Goodwin read. That was an application for insurance in the
Brotherhood. They required it of you. You have to have two good
eyes to get it. After Dr. Goodwin got through with that report it
was carried into Division 339 at open meeting and read before the
engineers to see if there was any reason why I should not receive that
$3,000 insurance. No objection was made to it. In about 30 or 40
days after this injury the doctor in Norfolk made that examination.
I belonged to the State Guard in 1898, 1900, 1901 and 1902, I think.
I did target shooting every year. I was with the first always—
thrown in the first squad. I shot from 2 to 1100 yards. My right
eye was used in aiming. The government requires it. Benton did
48 SEABOARD AIR LINE RAILWAY V8.
not say anything to me about the guard glass being broken. I saw
no signs of broken glass there. Claude Orral was conductor on that
train at Apex, Tle is here, Tle came in the cab immediately after
the explosion. The brake men were Willis Crump and Bill Crump.
They were checking freight out of the box car. They are here.
Both are working for the Seaboard. Orral is still conductor,
72 I suppose Dr. Lewis made 15 or 20 examinations of my eye
after it was hurt. Te gave me medicine. Tle put the medi-
cine in my eve that he kept in the oflice. Dr, Lewis was in the court-
house vesterday.
It is admitted that Dr. Lewis is under subpana by defendant.
Vlaintif? stands aside in order that Mr. W. ‘TL Smith, witness for
defendant, may be examined, Objection by plaintiff to the examina-
tion of Mr. W. PT. Smith, Overruled. Plaintiff excepts.
W. T. Sauirn, being sworn, testified ;
Direct examination :
I live in Raleigh. Tamia stenographer. Tlave had off and on 20
vears’ experience reporting cases in court, | reported the case of
J.T. Thorton vo S.A. LL. Railway in 9th at Wake Superior Court,
L transeribed the notes that T took at that time. TP took down the
evidence stenographically and transeribed it on the typewriter, That
is a copy of the notes that 1 transeribed,
(Counsel hands witness papers. )
1 delivered a copy to plaimtill’s counsel and also to defendant's,
This is a true and accurate transeription of the notes taken at the
trial, Mr. Horton gave the testimony as appears in that transeript.
Defendant offers in evidence parts of the stenographic report
taken at the former trial of this case,
No exception was taken by either side to any of the evidence that I
transcribed,
(Counsel reads from reports taken at former trial.)
Q. “When did you say anything to Matthews about the guard
glass being out of place?
A. After the first and second trips Tran the engine.
Q. Where was that conversation?
A. At the clinker pit er coal chute. 1 presume that is all his
answer to that question, Tf there had been an addition it would have
been in.
73 Cross-examination :
I think the notes of the evidence were taken at the instance of the
Seaboard Air Line. There was permission for the other side to have
a copy of the notes if they wanted it. T have no independent recol-
lection out side of that record. Reporting a case stenographically is
largely mechanical, Sometimes you have a little difficulty; witnesses
JAMES T. HORTON. 49
say something that you would lose. You would not be apt to lose
any material part.
Redirect:
Q. You are unfortunate enough to be my uncle by marriage”
A. Yes, I believe so.
Plaintiff offers summons in evidence and portions of complaint
and answer.
Plaintiff closed.
Defendant offered in evidence statement of EE. C, Horton of August
11, 1910, marked Exhibit J.
Lewis Arcuer, recalled by defendant:
After Horton brought this engine in Ll got up in the cab, and
found the guard glass was gone. | saw that a guard glass was put on
there. It was two pieces of glass,
Defendant closes.
At the close of all the evidence defendant renews the motion of
non-suit under the Tlinsdale et, and to dismiss the action.
Motion overruled. Defendant excepts.
Exception No, 35.
Exuripir A.
Seaboard Air Line Railway. Form 684,
Report on Condition of Engine No. 752 After Careful Inspection on
Arrival at Ral. 5:45 pp. m., 7-30, 1910,
74 Engine is in good condition with the following exceptions :
Road brake beam and back tank truck brake. Adjust piston
travel to tank. It is about 12 inches long. Clean brake cylinder to
tank. Brakes on engine and tank no good.
Train pipe pressure: 50 Tbs.
Main drum pressure: 60 Ibs,
Safety valve lifts at: 200 Ibs.
Safety valve seats at: 195 Ibs.
State whether this engine throws fire dangerously ?
No.
(Signed) J.T. HORTON, Engineman.
Norr.—Enginemen must carefully inspect their engines after
each trip and report their condition on this form whether needing
repairs or not. They will be held responsible for defects not. re-
ported. No attention will be given to verbal reports or reports not
signed by enginemen.
Raise seat box 8 inches.
7—691
50 SEABOARD AIR LINE RAILWAY V8.
R (On opposite side.)
Re er eee eT eee 191...
The following repairs were made to engine No. ...... .
PS GORE Whi nick ckctsedncaacnn teacan don bank exe eas
Name of workman in charge of work.
Approved by
P. M. M.,
Foreman Roundhouse.
Nore.—Workmen in charge of the work will sign for the repairs
done and must be approved by foreman roundhouse and forwarded
by him to Master Mechanic,
Exutir B,
Seaboard Air Line Railway. Form 684,
Report on Condition of Engine No, 752 After Careful Inspection on
Arrival at Ral, 5:45 p. m., 7-30, 1910. '
75 Engine is in good condition, with the following exceptions:
Collars to front end of both side reds work loose. Put new
rings in air end of pump and examine valves, Pump don’t keep up
pressure, Examine steam end of pump. It stops all over,
Train pipe pressure: — lbs,
Main drum pressure; — lbs,
Safety valve lifts at: — Ibs.
Safety valve seats at: — Ibs.
State whether this engine throws fire dangerously. —.
(Signed ) J.T. HORTON, Engineman.
Nore.—Enginemen must carefully inspect their engines after
each trip and report their condition on this form, whether needing
repairs or not. They will be held responsible for defects not re-
ported. No attention will be given to verbal reports or reports not
signed by enginemen.
Put new bushing in R. nuckle pin.
(On Opposite Side.)
Repaired at on —, 191.-.
The following repairs were made to engine No, 752.
Examined valves and rings in air end of air pump and put all
of them back.
BYNUM.
Tightened side rod collar. Renewed R. nuckle bushing.
MITCHELL.
JAMES T. HORTON. 51
Repairs made by
Name of workman in charge of work.
Approved by
P. M. } *)
Foreman Roundhouse.
Norr.—Workmen in charge of the work will sign for the repairs
done and must be approved by foreman of roundhouse and forwarded
by him to master mechanic.
76 Exurstir C.
Seaboard Air Line Railway. Form 684,
Report on Condition of Engine No. 752 After Careful Inspection on
Arrival at Ral, 3:30 p. m., 7-28, 1910,
engine is in good condition, with the following exceptions:
Sngine brakes don’t hold leak off; connect up tank brakes. Put
brake shoes on where needed. Set up both main wedges. Put new
rings in air pump and examine.
Train pipe pressure; — lbs.
Main drum pressure: — Ibs,
Safety valve lifts at: — lbs.
Safety valve seats at: — lbs.
State whether this engine throws fire dangerously. —.
(Signed) J. T. HORTON.
Nore.—Enginemen must carefully inspect their engines after
each trip and report their condition on this form, whether needing
repairs or not. They will be held responsible for defects not reported,
No attention will be given verbal reports or reports not signed by
enginemen,
Flat places on D. wheels.
(On Opposite Side. )
Repaired at on —, 191-.
The following repairs were made to engine No. —.
Both M. wedges set up; brakes fixed. Mitchell,
Repairs made by ;
Name of workman in charge of work.
Approved by
E. C. D.,
Foreman Roundhouse.
Noré.—Workmen in charge of the work will sign for the repairs
done, and must be approved by foreman of roundhouse and for-
warded by him to master mechanic,
52 SEABOARD AIR LINE RAILWAY V8.
77 Exuisir D.
Seaboard Air Line Railway. Form 684.
Report on Condition of Engine No. 752 After Careful Inspection
on Arrival at , —— M.,, 7-28, 191.-.
Engine is in good condition, with the following exceptions:
Valves—pack air and steam end of pump. Eng. pounding. Bad
in all D boxes and rod bolts to both front end of both side rods work
loose. Reduce brass to back end of both main rods,
Train pipe pressure: 60 Ibs.
Main drum pressure: 70 Ibs.
Safety valve lifts at: 200 Ibs.
Safety valve seats at; 195 Ibs.
State whether this engine throws fire dangerously. — No
(Signed) J.T. MORTON, Engineman.
Norr,—Enginemen must carefully inspect their engines after each
trip and report their condition on this form, whether needing re-
pairs or not. They will be held responsible for defects not reported.
No attention will be given to verbal reports or reports not signed by
enginemen,
(On Opposite Side.)
Repaired at ——, on ——, 191-.
The following repairs were made to engine No, —.
Sand pipes opened, Hester.
Repairs made by
(Name of workman in charge of work.)
Approved by
E. C.D
%
Foreman Round-house.
Norr.—Workmen in charge of the work will sign for the repairs
done, and must be approved by foreman of roundhouse and for-
warded by him to master mechanic.
78 Exursit FE.
Seaboard Air Line Railway Schedule of Rates, Rules, and Regu-
lations.
“49. Engineers will give their engines reasonable inspection, but
will not be required to go underneath them,”
ex:
....
JAMES T. HORTON. 53
Exaisir F,
Statement of Engineer J. T. Horton, Covering Injury to Right Eye,
Account Water Glass Burst on Engine 752, at Apex, August 4th,
Parts of Glass striking Him in Right Eye.
Rareien, N. C., August 9, 1910.
I had stopped engine 752 on house track at Apex with local car-,
and was facing water glass when glass burst, parts of flying glass
striking me in right eye, cutting same; extent of damage to eye not
yet known,
Q. What kind of water glass fixture was engine 752 equipped
with?
A. Special water glass fixture, which, IT understand, was gotten up
by Engineer Buckner.
Q. Was this fixture equipped with guard glass when trouble oc-
curred ?
A. No, sir. Tt has had no guard glass on it since T have been
running this engine.
Q. Did vou know the construction of this fixture-—that is, what is
required?
A. Yes, sir: T knew this fixture was constructed for guard glass.
Q. According to your statement, this fixture was not equipped
with guard glass when you made first trip on engine, July 28th.
According to register, vou made three trips of this engine since July
28th. Tad you made any report as to this fixture not being equipped
with guard glass?
A. No, sir.
Q. Why?
A. Overlooked reporting guard glass in water shield for causes
best known to myself.
(Signed) J. T. HORTON.
Witness:
W. S. BURRUS.
79 Exurnir G,
Seaboard Air Line Railway—Release.
For and in consideration of the sum of ten and 00-00 dollars
($10.00) to me paid, the receipt of which is hereby acknowledged,
T, J. T. Horton, do hereby release and forever discharge the Seaboard
Air Line Railway and any and all milroads owned, leased, operated
or controlled by it, and its successors, from all claims and eauses of
action for or by reason of the injuries received by me, caused by
water glass bursting and particles of same flying in his eve, on or
about June 10, 1908, at or near Raleigh, N. C., while a fireman in
the employ of the Seaboard Air Line Railway; the consideration
hereinbefore referred to being in full compromise, satisfaction and
54 SEABOARD AIR LINE RAILWAY V8.
discharge of all claims and causes of action arising out of the injuries
and in exoneration of the railway from all liability by reason thereof,
In witness whereof, | have hereunto set my hand and seal, this
29th day of July, 1908.
(Signed ) J.T. HORTON.
Signed, sealed and delivered in the presence of
A, P. JOHNSON.
Exuinir I.
Seaboard Air Line Railway—Certificate as to Hearing, Visual Power,
and Color Perception.
Raveran, N, C., April 18, 1905.
Name: J. 'T. Horton; white.
Division: Second. Occupation, engineer; age, 24.
Acuteness of sight and hearing: Distant vision—right eye, 20-70;
left eye, 20-20; normal.
Near vision—right, No. 2 J from 8 to 4 in and even No. 5 in,
with some slight difliculty. Left eve, No. 1 J; normal.
80 Heari i ar, Whisper at 6 ft.; normal. Left ear,
whisper at 6 ft. normal,
Color sense: Test skeins, light green. Names given —; selection
of similar tints.
A. Green, all shades correctly picked. Color sense normal.
B. Rose,
C. Red.
D. Blue.
Flag shown — Name — Remarks —.
Soiled white.
Soiled green.
Soiled red.
Soiled blue.
W. R. HUDSON.
Examination approved.
R. H. LEWIS, MW, D.,
By K. BATTLE, Jr., M. D.,
Supt. Second Division, Surgeon.
Date: Raleigh, Apr. 18, 1900. Location, Raleigh.
Nore.—There is a very slight linear sear on cornea, visible on
close inspection only, which is the cause and the only cause of the
slight interference with vision in the right eye. It is very old, and
if it ever changes it will be for the better instead of worse. There is
no disease in the eye whatever.
K. BATTLE, Jr.
JAMES T. HORTON. 5h
Exuisir J.
Statement of Engineer B.C. Horton, Relative to Condition of Water
Glass Fixture on Engine 752.
Raueien, N. C., August 11th, 1910,
I made round trip on train 1 and 2, August Ist and 2d.
Q. Did you notice what kind of water glass fixture was on engine
on this trip?
A. I didn’t pay any particular attention to water glass fixture
engine was equipped.
Q. Did you notice whether or not this fixture was equipped for
water glass guard and whether or not this guard glass was in
81 place?
A. As stated above, I took no particular notice of this
fixture, and | did not know whether or not this fixture was equipped
with guard glass.
Q. Did you notice water glass to see how much water you were
carrying?
A. I did.
Q. You state that this was the first engine you have run with
special fixture, did you notice on this trip that engine was equipped
with special fixture?
A. No; I did not notice this special fixture.
Q. You also went out on engine 752 train No, 1, August 5th, did
you notice construction of this fixture on that date?
A. T did.
Q. Was fixture equipped with guard glass?
A. Yes; for I took it out and cleaned it at Johnson Street in order
to enable me to see water.
(Signed) E. C. HORTON.
Witness:
W.S. BURRUS.
Defendant's Requests for Instruction.
The defendant in apt time in writing requested the Court to in-
struct the jury as follows:
1. The Court charges you that if you believe the evidence the
plaintiff was not injured by any negligence on the part ef the de
fendant and you will answer the first issue “No.”
The Court refused to give this instruction, and defendant excepts.
Exception No, 36.
2. The Court charges you that if you believe the evidence of the
plaintiff assumed the risks of the injury from the explosion of the
water glass, and you will answer the second issue “Yes.”
82 The Court refused to give this instruction. Defendant ex:
cepts.
66 SEABOARD AIR LINE RAILWAY V8.
Exception No. 37.
3. If you do not answer the second issue “Yes,” then the Court
charges you that if you believe the evidence, the plaintiff, by his
own negligence contributed to his injury, and you will answer the
third issue “Yes.”’
The Court refused to give this instruction. Defendant excepts.
exception No. 38.
4. The Court charges you that the Statute of North Carolina,
Revisal Section 2646, abolishing assumption of risk as defense to an
action brought against a railroad company by one of its employees,
has no application in this case, and if you find that the plaintiff
assumed the risk of injury from the explosion of the water glass,
you will answer the second issue “Yes.”
The Court refused to give this instruction. Defendant excepts.
Exception No. 39.
5. If vou find by a preponderance of the evidence that at the time
of his alleged injury the plaintiff was employed by an interstate car-
rier engaged in interstate commerce, the Court charges you that this
case will be tried under the provisions of the Federal Employer's Li-
ability Act enacted by Congress at the session of Congress of 1908,
This instruction was given as appears in the charge as modified,
6. The right of the plaintiff to recover damages in this action is
to be determined by the provisions of the Federal Employer's Li-
ability Act enacted by Congress at the session of 1908, and the Court
charges you that if vou find by a preponderance of evidence
83 that the water glass on the engine on which plaintiff was em-
ploved was not provided with a guard glass and the condition
of the glass was open and obvious and was fully known to the plain-
tiff and he continued to use such water glass with such knowledge
and without objection, and that he knew the risk incident thereto,
then the Court cherges vou that the plaintiff voluntarily assumed
the risk incident to such use, and you will answer the second issue
Sven.”
The Court gave this instruction as applicable to the issue of con-
tributory negligence and instead of the words “then the Court
charges you that the plaintiff voluntarily assumed the risk incident
to such use and you will answer the second issue “Yes,” used the
words, “then the Court charges you that the plaintiff was guilty of
contributory negligence, and vou will answer the third issue “Yes.”
To the refusal to give this instruction as requested and at the
modification, defendant excepts.
Exception No. 40.
8. If vou answer the first issue “Yes,” and the second issue “No,”
and if you find by the greater weight of the evidence that the plain-
tiff knew of the condition of the water glass on the defendant’s
engine, and knew the risk incident to its use in that condition and
continue to use such glass, and you find that a man of ordinary
—
JAMES T. HORTON. 57
prudence would not have used it, then the Court charges you that
the plaintiff was guilty of contributory negligence, and you will
answer the third issue “Yes.”
9. If you answer the first issue “Yes,” and the second issue “No,”
and if you find by the greater weight of the evidence that the plain-
tiff knew of the condition of the water glass on the engine, and knew
that it was dangerous to use it in that condition, and that he could
have shut off the glass and operated his engine with safety by using
the gauge cocks on the said engine, and that the plaintiff,
84 with such knowledge, failed to shut off glass and use the
gauge cocks, then the Court charges you that the plaintiff
was guilty of contributory negligence, and you will answer the third
issue “Yes.”
10. If you find by the greater weight of the evidence that the
water glass was defective, and that the plaintiff knew of the con-
dition of the water glass on the engine, and the danger incident to
its use, and that there was open to him a safe way of operating the
said engine by using the gauge cocks, and that he voluntarily used
the water glass in operating the engine, the Court charges you that
the plaintiff assumed the risk of injury from the use of the water
glass, and you will answer the second issue “Yes.”
The Court refused to give this instruction, and the defendant ex-
cepts.
Exception No. 41.
12. If you answer the first issue “Yes,” then the Court charges
you that if you find by the preponderance of the evidence that the
plaintiff knew of the condition of the water glass on the engine and
that he could have shut off the glass and operated his engine with
safety by using the gauge cocks on the said engine, and that the
plaintiff, with such knowledge, failed to shut off the glass and use
the gauge cocks, then the Court charges you that the plaintiff as-
sumed the risk of injury, and vou will answer the second issue
“Yes,”
The Court refused to give this instruction, and defendant excepts.
Exception No, 42.
13. If you answer the first issue “Yes,” then the Court charges
you that if you find by a preponderance of the evidence that the
absence of the guard glass and water gauge was open and obvious
and was fully known to the plaintiff, and he continued to use the
said glass with such knowledge, and that the plaintiff reported the
defect and was given a promise to repair, and von further
85 find that the plaintiff knew and appreciated the danger in-
cident thereto. and that the danger was so obvious that a
man of ordinary prudence would not have continued to use the
gauge without the guard glass, then the Court charges you that the
8—691
ae
58 SEABOARD AIR LINE RAILWAY VS.
plaintiff assumed the risk, and you will answer the second issue
“Yes,”
The Court gave this instruction.
(Signed ) J.C. BIGGS,
(Signed ) CHAS. U. HARRIS,
(Signed ) MURRAY ALLEN,
Defendant's Attorneys.
Judge's Charge.
His Honor charged the jury as follows:
The plaintiff, gentlemen of the jury, has brought his action to
recover damages, which he alleges he received while in the employ
of the defendant company, and that he received such injuries because
of the negligence of the defendant company. The burden is upon
the plaintiff to prove to you by the greater weight of the evidence
that he was injured, and that his injury was caused by the negligence
of the defendant company. This action is brought under a statute
of the United States commonly known as the Employer's Liability
Act. The plaintiff had a right to seleet his own Court, and to select
how he would bring suit. Tle might sue either in a State Court or
Court of the United States. (When he comes into Court and says
that the defendant is liable to him for injuries which he has re-
ceived by reason of his position with the defendant because of the
negligence of the defendant, and claims that his rights to recover
are provided by a statute of the United States, then the plaintiff
elected to rely upon his rights to recover as governed by the law, as
enacted by Congress; still, however, it does not change the burden
of proof on the plaintiff to show that the defendant is responsible
through its negligence for the injuries which he alleges he has re-
ceived. )
To the charge in parentheses defendant excepts,
Exception No. 438.
86 (It is the duty of the defendant to provide a reasonably
safe place for the plaintiff to work, and to furnish him with
reasonably safe appliances with which to do his work.)
To the charge in parentheses defendant excepts.
Exception No. 44.
It is admitted that he was an engineer in the defendant's employ-
ment, and that he was an engineer on a train engaged in interstate
commerce. The other allegations in the complaint are denied, that
is. it is denied that he was injured at all; and defendant savs that
if he was injured, it was because of his own negligence, and not that
of the defendant company.
Defendant insists that it furnished him a reasonably safe place to
work, and reasonably safe appliances. The plaintiff says that the
place at which he was put to work was not safe, because of the fact
that the water gauge, glass water gauge, had no guard or shield to it,
JAMES T. HORTON. 59
and that the guard or shield was a safety appliance in common use,
and approved for the purpose of making his position as engineer a
safe position. (It is the duty of the defendant to furnish the plain-
tiff with such reasonably safe appliances as are approved and in
general use for that class of work, and if the defendant furnished
him a glass water gauge, without safety appliances, and the safety
appliances was in general use for that kind of gauge, and was want-
ing at the time the defendant gave bim his engine, and was not
supplied while he was operating the engine, then he did not have
a reasonable safe place to work, and if you so find from the evi-
dence, by its greater weight, and you should further find from the
evidence by its greater weight that he was injured while operating
his engine with the safety shield or guard absent, and that that was
the proximate cause of his iajury, it would be your duty to answer
the first issue “Yes.’’)
To the charge in parentheses defendant excepts,
Exception No. 45.
S7 If you fail to so find, it would be your duty to so answer
it “No.” and | desire to say new, before | undertake to set
out the contentions, as T understand them to be between the parties,
to tell vou that it is your duty where there is a conflict of the evi-
dence to reconcile the testimony, if you can consistently do so with
the truth, and if you cannot consistently reconcile it, then you must
decide which is true and which is false. You have the opportunity
to judge of the manner and demeanor of the witnesses upon the
stand, and the opportunity to judge of their purposes to speak the
truth and their ability to do so, that is, the knowledge they have
about the matters about which they testified.
(Where testimony is offered or contradictory statements are made—
in other words, testimony is offered to show that the witness on the
stand has heretofore made a statement different from the one made
at the present time, the statement heretofore is not substantive proof
if you find it was made but it is offered for the purpose of discredit-
ing the witness upon the supposition that if a witness makes one
statement here on the witness stand and has made another differing
from it, that the testimony is not so reliable which he gives the
Court and jury. It is also competent to offer what is known as cor-
roborative testimony, that is, the witness has made the same or a
similar statement at another time, not that you can rely upon the
former statement as substantive proof, for it is argued that having
made the statement on different occasions as that to which he
testifies in Court, that it tends to give more credit to the testimony
which he gives here.)
To the charge in parentheses defendant excepts.
Exception No. 46.
You will bear these rules in mind when you come to consider
the various phases of this ease, and the testimony bearing on it.
The plaintiff contends that he received his engine, and
88 that when he went out with it, it lacked this shield or guard
for glass water gauge. The defendant contends that it did
60 SEABOARD AIR LINE RAILWAY VS.
not. The plaintiff insists that he has offered you evidence from
Which you ought to find that this engine was imperfectly equipped
on the morning when he first took it out on the first trip; that it was
furnished to him without this guard, and he insists that vou ought
to so find from the evidence.
The defendant on the other hand contends that it has offered evi-
dence which it insists you ought to believe, and it insists that vou
ought to find that the engine was properly equipped with a guard
for glass water gauge when it was turned over to him that morning,
(If vou find from the evidence that it was turned over to him without
the guard, and if you further find from the evidence that the guard
Was a proper safety provision for the use of that gauge, and that it
Was unsafe without it, then the defendant did not furnish him a
safe place and a safe appliance to do his work, and if it remained in
that condition, it was continuing negligence on the part of the de-
fendant, and if he
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.