Transcript of Record — Seaboard Air Line R. Co. v. Koennecke
Supreme Court brief1915
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j=: SUPREME COURT OF THE UNITED STATES.
: OCTOBER TERM, 1915.
No. 491.
SEABOARD AIR LINE RAILWAY, PLAINTIFF IN ERROR,
v8.
BEAUREGARD MAGDALENE KOENNECKE, AS ADMINIS-
TRATRIX OF THE ESTATE OF J. T. KOENNECKE, DE-
CEASED.
IN ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH
CAROLINA.
INDEX.
Original. Print
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Original. Print
SEABOARD AIR LINE RY. VS. B. M. KOENNECKE, ADM’X, ETC. 1
1 Tue State or SuutH CAROLINA:
In the Supreme Court, Fifth Circuit, Richland County, November
Term, 1914.
Mrs. BEAUREGARD MAGDALENE KorNNECKE, as Administratrix of
the Estate of J. T. Koennecke, Deceased, Plaintiff-Respondent,
vs.
Seapoarp Arr Line Ratitway, Defendant-Appellant.
Before Hon, W. A. Holman, Special Judge.
F. G. Tompkins, W. H. Cobb, C. S. Monteith, Counsel for Plain-
tiff-Respondent.
Lyles & Lyles, Counsel for Defendant-Appellant.
Case for Appeal.
This action was commenced on July 29th, 1913, by the service
of a summons and the following
2 Complaint.
The plaintiff above named, as administratrix of the estate of
J. T. Koennecke, deceased, complaining of the defendant above
named, alleges:
1. That the said J. T, Koennecke departed this life intestate in the
City of Columbia, County of Richland, and State of South Caro-
lina, on or about the 13th day of June, 1913, leaving him surviving
as his heirs and distributees his widow, Beauregard Magdalene Koen-
necke, and the following named children: Edith May Koennecke,
George Allen Koennecke, Joseph Theodore Koennecke and Rosa Lee
Watson, and that thereafter on the 10th day of July, 1913, letters
of administration on his estate were duly granted to the said plain-
tiff by the Judge of Probate for the said County of Richland; that
the plaintiff thereupon qualified and has since been and now is the
duly qualified administratrix of the said estate, and brings this action
for the benefit of herself and children.
2. On information and belief that the defendant, Seaboard Air
Line Railway, is now, and was at the times hereinafter mentioned,
a corporation duly chartered and organized under and by virtue of
the laws of the States of Virginia, North Carolina and South Caro-
lina, and as such owns and operates, and, at the times herein men-
tioned, owned and operated a line of railway, together with tracks,
yards, shops, engines, trains and all appurtenances thereto, at Cayce,
in the County of Lexington, in the State of South Carolina, and hav-
ing in and running through the City of Columbia, County of Rich-
land and State of South Carolina, tracks, engines and trains, and
having an office and an agent in the said City of Columbia, County
1—491
2 SEABOARD AIR LINE RAILWAY VS.
of Richland and State of South Carolina, for the transaction of busi-
ness as a common carrier of passengers and freight.
3. On information and belief that the said J. T. Koennecke,
at the times herein mentioned, was in the employment of
3 the said Seaboard Air Line Railway as yard conductor or
switchman in the yards and upon the tracks of the said de
fendant at Cayce, in the County of Lexington and State of South
Carolina.
4. On information and belief that while engaged in said employ-
ment on or about the 13th day of June, 1913, in the said yard of the
said defendant company at Cayce, in the County of Lexington and
State of South Carolina, the said J. T. Koennecke was run over by
a train of the said defendant company on a track in the said yard
at Cayce, known as track number four, and by reason thereof the
said J. T. Koennecke was | horribly mangled, bruised and crushed,
both of his legs being severed from his body by the said train of
cars|, from which injuries he died a few hours thereafter.
5. On information and belief that the said J. T. Koennecke was
engaged in the performance of his duty as switchman or yard con-
ductor in the yards of the said defendant company ; that there were
no lights in the said yard adequate for the proper protection of the
said J. T. Koennecke in the performance of his duties; that the tracks
and the walkways between the tracks were in a dangerous and unsafe
condition, having piles of clinkers and cinders and coupling pins in
between the tracks, making the same dangerous and unsafe; that the
train which ran over [and mangled, crushed] and killed the said
J. T. Koennecke consisted of ai engine and a great number of box
cars to the amount of more than twelve; that the engine was backing
with the tender of the engine in front, pulling the box cars behind;
that no lookout was kept by the agents of the said defendant com-
pany, nor was proper signals or warnings given of the approach of
said train of cars, nor was any employee placed on the rear of the en-
gine to keep a lookout in the direction the train was as
4 to avoid striking persons or obstacles on the track, as was an
is required by the rules and regulations of the said defendant
company.
6. On information and belief that the injuries which resulted in
the death of the plaintiff’s intestate was caused wrongfully by the
careless, negligent, wanton and reckless conduct of the defendant, its
agents and servants, in failing to furnish a safe place for the plain-
tiff’s intestate to work; in failing to furnish adequate lights for his
protection ; in having the track and walkways between the tracks in
a dangerous and unsafe condition as aforesaid; in failing to give the
roper warning of the i Sacengs train; in failing to keep a proper
i and in failing to keep an employee on the rear of the engine
as aforesaid, and by reason of said negligent, careless, wanton and
reckless acts the plaintiff’s intestate was [crushed, mangled] and
killed in the performance of his duties as aforesaid.
7. That the said J, T. Koennecke left as his only heirs and dis-
tributees at law his wife, the plaintiff herein, and his four children
as above named, who were dependent upon him for support, comfort
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 3
and maintenance in life, and by reason of his death, caused by the
negligent, wanton, wilful and reckless acts of the defendant as afore-
said, they have suffered damages in the sum of seventy-five thousana
($75,000.00) dollars.
Wherefore, plaintiff demands judgment against the said defend-
ant for the sum of seventy-five thousand ($75,000.00) dollars and
for the costs of this action.
REMBERT & MONTEITH,
Plaintiff's Attorneys.
(Duly verified.)
Motion to Strike Out.
Within twenty days, the defendant duly served notice of @
motion to strike out the words in paragraphs four, five and
5 six of the complaint, which are indicated by the brackets and
italics in the complaint as printed above. This motion was
taken up by agreement upon the call of the case and before the draw-
ing of the jury, and the same was sustained, and these portions of the
complaint were ordered stricken out. The motion also included
other portions of the complaint, as to which it was refused, but as to
these no exception is taken.
The defendant duly served and filed the following
Answer.
The defendant, reserving the right to make its motion to strike
out certain portions of the complaint, notice of which is herewith
served, makes the following answer to the complaint:
For a First Defense.
1. In answer to paragraph one, it admits that J. T. Koennecke
departed this life in the City of Columbia, on the thirteenth day of
June, 1913, but denies knowledge or information sufficient to form
a belief as to the other allegations of said paragraph.
2. It admits the allegations of paragraph two.
3. In answer to paragraph three, it admits that J. T. Koennecke
at the time of his death was in the employ of the defendant as a
switchman in the Cayce yards, but denies each and every other alle-
gation in said paragraph contained.
4. In answer to paragraph four, it admits that J. T. Koennecke,
while in the employment of the defendant as switchman in its
Cayce yards, was run over by a train of the defendant, and received
injuries from which he died, but it denies each and every other al-
legation in said paragraph contained.
6 5. Upon information and belief, it denies each and every
allegation contained in paragraph five.
6. Upon information and belief, it denies each and every alle-
gation in paragraph six.
4 SEABOARD AIR LINE RAILWAY VS.
7. Upon information and belief, it denies each and every alle-
gation contained in paragraph seven.
For a Second Defense.
Upon information and belief, defendant alleges that plaintiff's
intestate, at the time he came to his death, was in the employ of
the defendant in its Cayce yards as switchman, and well knew that
cars and engines were constantly shifting and switching on the
various tracks, and notwithstanding such knowledge, plaintiff’s
intestate stepped in and upon one of said tracks without looking or
listening for the approach of an engine or cars upon said track,
and notwithstanding that plaintiff's intestate could by the exercise
of ordinary care have ascertained the approach of said engine and
cars, he failed to do so and stepped in front of same, and plaintiff's
intestate failed to keep off of said track out of the wav of said train,
and failed to step off of said track out of the way of said train, and in
so doing and in failing to do, he was guilty of negligence, which
combining and concurring with the negligence of the defendant, if it
was negligent, operated as a proximate cause of his own injuries
and death, without which they would not have occurred.
For a Third Defense.
Upon information and belief, defendant alleges that J. T. Koen-
necke, at the time he came to his death, was in the employment of
the defendant as a switchman in its yards at Cayce, and had also
been employed in said yards for some time before his death, as
night yardmaster and as yard conductor, and by virtue of
7 such employment, he well knew the dangers incident to the
duties of his employment as switchman in said yards, and
well knew, or by the exercise of reasonable diligence would have
known, the danger and risk of being struck and run over by the
engines and cars which were constantly shifting through said yards,
and the said danger and risk which caused his death was an ordi-
nary and obvious risk incident to his employment, of which he was
well aware, and the danger and risk of which he assumed.
LYLES & LYLES,
Defendant's Attorneys.
(Duly verified.)
Trial. °
Upon these pleadings the case came on to be heard before Special
Judge W. A. Holman and a jury in the Court of Common Pleas for
Richland County on May 30, 1914, where the proceedings were
had as shown by the following: j
Transcript.
Pleadings read.
The Courr: As I understand the pleadings in the case, they have
admitted the death of this party, admit he was in the employ of the
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 5
railroad company. On information and belief deny the allegations
alleged in the administration upon the estate; so the issues now in-
volved bring it down to the point as to the allegation of negligence
alleged in the complaint and denied by the answer. Then there
are two independent aflirmative defenses set up. It is not necessary
to prove any allegation that has been admitted by the pleadings.
Mr. MonrerrH: We will try to confine the proof to the allega-
tions.
8 Mr. Lyues: I admit letters of administration (offered in
evidence).
Dr. M. M. Ricr (white), sworn, says:
Mr. Monvreiru:
Q. You are a practicing physician in the City of Columbia?
A. Yes, sir.
Q. Were you called upon to attend J. T. Koennecke June, last
year?
A. I saw him only after his death.
Q. Did you make an examination?
A. Yes, sir; I made the post mortem examination of him.
Q. State what injuries you found on Mr. Koennecke?
Mr. Lyes: We object; it is not an issue in this cause. Stricken
out.
The Courr: Might want to prove the character of the wound in
order to illustrate how he was struck by the car.
Mr. Monreitn: That is the purpose; yes, sir.
A. Were a good many injuries and bruises all over his body,
on his back and hips, crushed in left side, back, above the hips,
in the region of the spine, and both of his legs were mashed off,
and several other
Mr. Lytes: We object to this line of testimony.
The Courr: I will tell the jury that the suffering of the deceased
is not an issue in the case.
Mr. MonreirH: We understand. You stated that he had bruises
on the back and hip?
A. Yes, sir.
Q. From the way his legs were injured could you tell whether
from the back or front?
A. No, sir; could not tell, they were mangled; I could not say
positively about that.
Q. The blow on his back, was that severe or light blow?
A. Very severe injury; crushed injury.
Q. Crushed his back?
A. Yes.
Q. How large was it, do you recall?
A. About, a little larger than my hand; about 5 or 6 inches in
circumference, ,
6 SEABOARD AIR LINE RAILWAY VS.
9 Q. Did it go deep into his body?
A. Yes, sir; the muscles and skin and all the tissues
mashed in and bruised considerably.
No cross-examination.
D. A. Smiru (white), sworn, says:
Mr. Coss:
Where do you live?
Out in Shandon.
Where did you work?
For the Seaboard.
How long had you worked for the Seaboard?
. About five years.
At what place are you working now?
. Interchange yard, down by Whaley and Tobacco streets.
June last year where were you working?
Part of the time at Cayce, and part of the time on this side.
. Now, you say you worked over at Cayce part of last year,
about June?
A. Yes, sir.
Q. Do you remember when Mr. Koennecke was killed over there?
A. I was working at daylight when this happened.
Q. Were you working at Cayce at that time?
A. I was at Cayce at that time.
Q. You recall the time he was killed; did you go back to work
the next day?
A. Yes, I worked every day during that month.
Q. Did you ever see the place where it was said he was killed?
A. IT have seen the place where I seen some blood on the track,
and they told me——
Q. That is on the western side of the road which crosses the Sea-
board at Cayce?
A. Yes, sir.
Q. How far from the crossing out that way?
OFPOPOPOrere
Mr. Lyues: We object to any testimony about any public cross-
ing.
he Court: They do not allege in the complaint that he was
killed on a crossing; don’t allege that.
10 (Mr. Cops:)
Q. Up at the place where you saw this blood on the track, what
track was that on?
A. No. 4.
Q. The day before, and some time before he was killed, had you
seen walkways between the tracks?
A. 3 and 4 and between other tracks around.
Q. Where you saw the blood the following morning?
A. Yes, sir.
Q. What would you say with reference to the condition of the
—
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC, 7
walkway between 3 and 4, and between the other tracks, as to their
condition?
A. Not nigh so level, betwixt the tracks was pretty rough in
places.
Q. How was it rough?
A. Little banks of clinkers little higher than other low places. |
Q. Were banks of cinders and clinkers; any pins? |
A. I don’t think any pins and iron were there. |
Q. Did they extend between those two tracks at the place where
he was killed, any distance?
A. I don’t know whether that was level or rough place.
Q. Back on this side, the place where you saw blood?
A. The place on this side, that was fair walking.
Q. The place he was killed was rough?
A. Pretty rough.
Q. What was the condition of the space between the rails on this
track?
A. I don’t know; pretty good space.
Q. Was it level?
A. Right along there, in places it was level, and in places little
banks, little clinkers about a foot high.
Q. Between the rails?
A. No, it was not level betwixt, had not been filled in.
Q. Wasn’t any pile of clinkers between the rails?
A. No, sir, not between the rails.
Q. Could walk along on that?
A. Yes, could step from one tie to the other.
Cross-examination by Mr. Lyzzs:
Q. You say that walkway, some portions of it were all
11 right, some portions of it little uneven?
A. Yes, sir, that was the idea.
Q. You do not know where Mr. Koennecke was standing at the
time he was killed?
A. I do not.
Q.. You will not undertake to say that the walkway at the point
Mr. Koennecke was standing at the time he was killed was any-
thing wrong with it?
A. I don’t know where he was standing at.
Q. Certain portions were all right and other portions unlevel, or
a little uneven?
A. Yes, sir.
Q. You don’t know that fills up this way?
A. No, not like you would fill them up.
Q. The ground had not been porsos even, that is what you
mean?
A. Yes, sir.
Q. Did you ever walk along there?
A. Number of times.
Q. You never stumbled and fell to the ground?
A. Not along there, I did not.
? SEABOARD AIR LINE RAILWAY VS.
Q. Anything along there anywhere in the vicinity where you saw
the blood, or anything in the vicinity where this thing happened,
that would cause a man to stumble and fall?
Mr. Coss: Let him state the facts and describe the conditions;
not express an opinion.
Mr. Lyves: You never stumbled or fell?
A. Not along there I never.
The Court: That would be a question for the jury.
Mr. Lyes: Did you know Mr. Koennecke?
A. Yes, sir; I knew him.
Q. Do you know what his position was with the road at the time
he was killed?
A. I do not know; I do not know whether he was a switchman
or yard conductor.
Q. You know he was connected with the switching engine in
some capacity?
A. Yes, sir.
Q. He had been working there some months?
A. Yes, sir.
12 Q. And his work had been in the Cayce yard?
A. Yes, sir.
Q. Those yards are of some considerable size?
A. Pretty good size yard.
Q. Twelve or fifteen switching tracks in there?
A. Near about that many.
Q. Great many trains run into that place and made up and
taken out of there?
A. Yes, sir.
Q. They have several switching engines in operation there?
A. At that time between three and four.
Q. There was a constant switching and moving of engines and
cars in that yard at that time?
A. Yes, sir.
Q. Mr. Koennecke had been working in this yard doing some
sort of work connected with switching engine for several months?
A. Yes, sir.
Mr. Coss:
Q. Did you work with Mr. Koennecke?
A. No, sir.
Q. He worked at night and you worked in the daytirne?
A. Yes, sir; he was on a different crew.
T. A. Barker (white), sworn, says:
» Mr. Monterru: Have you the rule book, Mr. Lyles?
Mr. Lytes: Here is the rule book I produce in accordance with
the notice without waiving my right to object to any rules contained
—" and without making any admission in connection with
em,
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 9
Mr. Monreiru: We call for the time table.
Mr. Lytes: In connection with the notice to produce the time
table, we deny that any such thing has any bearing, or any refer-
ence whatsoever to this case. I have produced, in accordance with
the notice, Rule Book containing all the rules and regulations
applicable. 2
Mr. Tompxins: We call for th» time table containing
13 general instructions for the gove:ament of employees, in
effect June 13, ’13; he has refused to produce it on the yround
that it has no relevancy to this case.
The Courr: I understood him to say he did not have such thing
as that.
Mr. Lytes: I said I refuse to produce it.
Mr. Monvreiru:
Q. By whom are you employed?
A. Seaboard.
Q. In what capacity?
A. As yard conductor of the Seaboard at Cayce at the time Mr.
Koennecke was injured.
Q. Was Mr. Koennecke working under you?
A. Yes, sir; he was.
2. You were conductor and Mr. Koennecke——
A. Was switchman.
Q. What was the number of your engine?
A. 419.
~A Now, do you know about what time Mr. Koennecke was in-
jured?
A. Possibly about 8:30.
Q. Some time in the early part of the night?
A. Yes, sir.
Q Sa it the engine you and he were on that ran over him?
A, oO, JF.
4 W het engine ran over him?
Q. Who was the engineer on that engine?
A. Fenton.
Q .\Who was the conductor?
A. Hunt.
@. Who were the crew?
. Hammel and Sellers.
. Your engine was switching over at Cayce?
. Yes, sir.
Q. This engine 423, was that engine working on the Columbia
side of the river?
A. Yes, sir.
Q. Had that engine been over to Cayce before that night?
A. No, sir, had not.
A. “a before the injury what was Mr. Koennecke doing, if you
ow
Por
ee
POOR COPY
10 SEABOARD AIR LINE RAILWAY VS.
A. Just before the injury he was on the track, on track
14 No. 8, I believe. We were working on local freight train 69,
and picked up cab and put it on 8 track.
Q. Did you tell Mr. Koennecke, give him any instruction where
to go from 8 track?
A. Yes, sir.
Q. What were those instructions?
A. We had some local cars on 9 track. After taking off cab, to
also pick up cars on 9 and put on 8. Told Mr. Koennecke to let the
cars run in back on No. 3 track with the engine.
Q. Going from 8 track to 3 track, Mr. Koennecke would have to
cross over No. 4 track; 4 was between 8 and 3?
A. Yes, sir.
Q. You testified at the coroner’s inquest in this case?
A. Yes, sir.
Q. ‘rhe duties of a switchman made it necessary for him to be all
over and about the yard, walking upon and across tracks—his duties
required that of him?
A. The duties of a switchman are supposed to be what the yard
foreman told him to do.
Q. In the performance of his duty it is necessary for him to pass
over the tracks?
A. Yes.
Q. Did you see this train that ran over Mr. Koennecke?
A. I seen it when it came from Columbia.
Q. How was it running; was the engine going forward or back-
ward?
A. He was backing, pulling his cars,
Q. It came from Columbia and went right down in track 4?
A. Yes, sir.
Q. ve you know whether the engine had any headlight burning
on it?
A. No, sir.
Mr. Lyzxs: There is no such allegation in the complaint.
The Court: I do not think you allege it.
Mr. Monterru: We say there was no proper signals or warning
given of the approach of the train. We did not use the word
“headlight”; but I submit a signai is either a light, by word of
mouth, or anything that can be construed a signal.
15 The Court: Ask the question. I will charge the jury you
will have to make out your case, as alleged in the complaint,
by the preponderance of the evidence.
Mr. Lytes: Not meaning to argue the matter, but our Supreme
Court has indicated that it is not the proper practice to admit irrele-
vant testimony and then try to eliminate it from the case by the
charge to the jay once the testimony is out, the jury has not a
technical mind like a lawyer has. I object. Irrelevant testimony
should be excluded, and not allowed to go to the jury and charge out
afterwards.
The Court: Maybe their failure to have the light would not be
giving warning. 1 cannot say what view the jury might take of it.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 11
Might be the failure to have a light would be a failure to give warn-
ing. Lights, anything for the purpose of warning people of the
presence of the engine, &e. T will admit that evidence, but there is
no allegation in the complaint charging a failure to have a head-
light as one of the acts of negligence in the case. The jury will not
consider that except if you make it out as on the question of warn-
ing.
Vr. Monteitu: We use the words, signals and warning.
The Court: It may be the failure to have a light might come
under that. Ask the question.
Mr. Lyes: I repeat my objection,
The Court: Note the objection.
Mr. MontietH: Do you know whether the headlight was burning
on the engine backing and pulling these cars in?
A. I do not recollect whether one was there or not.
Q. Do you know whether or not the bell was ringing?
A. No, sir, I do not.
Q. Do you know whether or not there was a switchman or any one
on the rear of the engine?
A. No, sir; I do not recollect whether any one was on the rear or
not.
Q. When did you first learn that Mr. Koennecke had been
16 injured?
A. I do not know just the time, must have been 9 :40, some-
thing like that.
Q. With reference to the time you saw that train backing into
that side track, with reference to that, how long after before you
learned of the injury?
A. Must have been 10 minutes after.
Q. Who told you of it; or how was the alarm given?
A. First I knew of it the car inspectors with these big lights signed
me down. They give me signal to stop; that is the first I knew of it,
Q. How far down in the yard—did you afterwards go down to
where the man was, where Mr. Koennecke was; you went down
there?
A. Yes, sir.
Q. As soon as you learned of it, how far down in the yard, ap-
proximately, was it from where you were standing when the train
passed you, backing in?
A. Must have been ten car lengths.
Q. And a car is 36 to 40 feet long?
A. Yes.
Q. How many vars was that engine pulling in?
A. I do not know; they said they had 1 cars, I believe, but I
don’t know; I did not count the cars.
. Was it a pretty long string of cars, though?
Yes, sir.
Was the engine backing at a high or low rate of speed?
. Average rate of speed, four to six miles an hour.
How far is it from Columbia to Cayce, do you know?
No, sir.
PO>Ore
See Pee ee eT A, a ako
12 SEABOARD AIR LINE RAILWAY VS.
Q. Columbia is on this side of the river and Cayce is on the other
side?
. Yes, sir.
. The main line of the Seaboard is Columbia to Cayce?
Yes, sir.
How long is the trestle?
I do not know, sir.
. Approximately, is it a mile in length or half a mile?
A. What trestle?
Q. Over the river here?
A. I do not know, sir; I have no idea.
Cayce is a station of the Seaboard?
Yes, sir.
Do you know what county that is in?
Lexington county.
They have Cayce yards over there?
Yes, sir, known as the Cayce yards, across the Congaree River.
In Columbia known as the Columbia yards?
Yes, sir.
This engine that came over I believe you said that was the
engine working on the Columbia side of the river?
A. Yes, sir.
Q. They would bring what cars they had for that side, and get
what was there for them and bring them back?
A. Yes, sir.
Q. And they worked on this side. Your engine was the one upon
which Mr. Koennecke was employed with you?
OPero>
—s
~J
PPOPOPOoPo
A. Yes, sir.
Q. You were switching at Cayce?
A. At Cayce; yes, sir.
Q. Do you recognize this time card of the Seaboard?
A. I don’t know.
Q. (Showing same to witness:) That is like what you have seen?
A. Yes, sir.
Q. When is that in effect?
A. Sunday, April 27, ’13.
Q. Went in effect April 27, 13?
A. Yes. sir.
Q. Do you recognize this one—that is another one—like what you
have seen of the Seaboard time cards?
A. Yes, sir.
Q. What is the number of the first one I gave you?
A. No. 2.
Q. Now, this one?
A. No. 3.
Q. This No. 3 superseded No. 2?
A. Yes, sir.
Q. That was effective what date?
A. Effective June 22, ’13.
18 Q. On June 13, ’13, the one you have in your hand would
be in effect?
A. Yes.
oe ea ee oe
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 13
Q. Now, were not all the employees of the company supplied with
that?
Mr. Lytes: I would like to see the paper.
The Court: What paper?
Mr. Lytes: The paper the witness has...
Mr. Monterrn: I will show the paper to counsel. ots
Mr. Tompkins: Just identify it for the purpose of offering it in
evidence.
Mr. Copp: This is the paper he refused to produce.
Mr. Tompxrns: If we offered the paper without having him say
that the employees were supplied with same, that probably would not
be competent.
The Court: You use this in lieu of the one you demanded him to
produce?
Mr. TompKINs: Yes, sir.
The Court: Let counsel look at it.
Mr. Monverrn: Are employees of the company supplied with a
copy of the time card as they go in effect?
A. All trainmen are.
Q. All men that work the train service?
A. Yes, sir; employed in the train service are supplied with them.
Q. This time card contains general instruction for the government
of employees?
A. All time cards do.
Q. This one is like what you have seen?
A. Yes, sir.
Mr. Monterrn: We introduce this in evidence.
Mr. Lytes: We object. I would like to examine the witness with
reference to that. ,
Mr. Tompxrys: All right.
The Courr: Suppose you get through with him first.
Mr. Tompkins: He would have the right to bring out from this
witness, if he can, facts which would show this paper was not given
distribution among the employees.
Mr. Lyes: You say all the train men have a copy of the
i9 time table; you mean men running trains or men running
in the service—main line service?
A. Yes, sir.
Q. Switchmen, they don’t get a copy?
A. No, sir, not switehman.
Q. This time card has no bearing on the switch engine in the
yard service?
A. Yes, sir.
Q. Switchmen on the switch engines, they don’t go by that ‘ime
card ; men on switch engines running in prot: & off the main line have
nothing to do with the time card?
A. No, sir; not when off the main line
Q. Nothing in the time card, or under general instruction, that
applies to a switch engine when off the main line?
14 SEABOARD AIR LINE RAILWAY VS.
A. Not a thing. ,
__ Q. At the time that switch engine 423 ran over Mr. Koennecke,
if it did, that was on track 4?
A. Yes, sir.
Q. It had left the main line of the Seaboard?
A. Yes, sir, it had.
Q. The Division changes at Cayce?
A. Yes, sir. ;
Q. The Cayce yard is under the jurisdiction of Superintendent
Gore?
A. Yes, sir.
Q. That is the N. C. Division?
A. Yes, sir.
Q. The N. C. Division applied from Hamlet to Cayce?
A. Yes, sir.
Q. And the S. C. Division applies from Cayee yard south to Jack-
sonville?
A. Yes, sir.
Q. Now, the Cayce yards is in the North Carolina Division?
A. That is the way I understand it.
Q. This engine at the time it ran over Mr. Koennecke was under
the jurisdiction of the North Carolina Division?
A. Yes, sir.
Mr. Lyirs: Now, I object to the admission of that time card, or
anything in it. The witness says it has no application to switchmen
when off the main line service; on the further ground the
20 time card shown not applicable to Cayce. Time card South
Carolina Division and not of North Carolina Division.
Mr. Tompkins: Have you a copy of the Time Table No. 2, time
table of Seaboard for North Ca-olina Division?
A. No, sir.
Q. State whether or not the general instructions which are found
there are in the main the same on both division time tables?
A. They are on both.
Mr. Tompkins: That is as near as we can come to the time table
which we demanded and which he refuses to give. We offer it in
evidence as the best evidence of the time table that was in force.
The Court: Let’s see what your demand was.
Mr. Tompxtns: For them to take notice that upon the trial of
the case they would be asked to produce the time table in effect June
13, 13, and the general Rule Book, and that on the failure to pro-
duce said time table plaintiff would offer secondary evidence of same.
It has the same title, Koennecke vs. Seaboard, and addressed to Lyles
and Lyles. We think that is sufficient notice to him to produce such
time table, as they claim was in effect at the place about which this
action is concerned. They have. not denied that they have it, and
they have refused to produce it. We offer one of their time tables in
South Carolina Division.
The Courr: The witness said the time table has no application
to moving engine on the side track, switch track.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 15
Mr. Tompkins: The general instructions are here, and they speak
for themselves. They are the best evidence to what they apply, to
whom and when applied. This was the time table of the Seaboard,
in use by trainmen at that time, and he has not any closer time
table, or any nearer to what they claim to be the time table than
this. The witness says the rules are the same on both time tables.
Now the time table is not in question; we are not suing about any
missing of schedule—— .
21 The Court: That is what I think.
Mr. Tompkins: The only time table in question is the
instruction. It is a question for the jury to say whether or not
these rules applied at the time this train was in motion; whether
this train was in the yard making a yard movement or extended
movement.
The Courr: Haven’t they got a Rule Book on that?
Mr. ToMpkKINs: Yes, sir; and we want that in also.
Mr. Lytes: We have produced the Rule Book, but refuse to
produce the time table for the reason it has no application to the
case. We have offered our Rule Book which contains the rule ap-
plicable to switch engines. He offers to prove this instruction in the
time table by this witness, and the witness says it has no application
to the——
Mr. Tompkins: It is a hard thing for the lawyers and the Judge
to say.
The Court: I will let you introduce the evidence. Note objec-
tion.
Mr. Monreitu: We wish to call special attention to Rule U,
under general instructions, which reads as follows:
Mr. Lyies: We object to the instruction of Rule U or any part
of the time table; not properly proved, and irrelevant, and does not
apply to the engine in question.
The Courr: State your ground, and let the stenographer take it
down.
Mr. Monverru: I will read the rules to the jury:
“Cars will not be moved in front of engines, or engine moved
backward, unless there is an employee on the front of the moving
car, or op the rear of the engine, to keep a lookout, in the direction
the movement is being made, to avoid striking persons or obstruc-
tions on track. Enginemen, as well as conductors, will be held re-
sponsible for violation of this rule.”
Wasn't it customary for you all in the yard to be furnished with
a copy of these time tables’
A. Yes, sir.
22 Q. You all had to receipt for a copy?
A. Yes, sir; all yard foremen.
Q. Yard conductors and everybody around there?
A. Yes, sir. ‘
Q. Each one comes to you witha little receipt for you to sign
and return?
A. Yes, sir.
LE Heth me ae mais ——
16 SEABOARD AIR LINE RAILWAY VS,
Q. You are supposed to receipt that and return it to the Superin-
tendent?
A. Yes, sir.
Q. That yard, what was the condition of the lights over at Cayce,
lighting of the yard, any light except up at the oftice?
A. Yes, sir; we had lights; the sand house and roundhouse had
lights, on the lead of the yard.
-Q. In reference to the part where Mr. Koennecke was killed, any
electric lights there?
A. None near there. Had electric light to sand house, and coal
chute also.
Mr. Monveiru: We had notice to produce served on our friend
to bring a lantern, property of the plaintiff, that we were informed
is in possession of the Seaboard. Counsel says he knows nothing
of it.
Mr, Tompkins: Property of the Seaboard used by the defendant
at the time of his death.
Mr. Lyues: There is no evidence to that effect. Counsel, be-
cause they cannot find something, cannot throw the burden on me.
I never heard of the lantern.
The Courr: If he cannot produce it you may put up witnesses
and introduce secondary evidence.
Mr. Monreiru: Do you remember whether Mr. Koennecke had
his lantern that night?
A. Yes, sir; he had a lantern,
Q. Have you seen that lantern since Mr. Koennecke’s death?
A. I saw a piece of it.
Q. Where?
A.- On the track near where we found him.
Q. Have you seen the lantern over at Cayce any time since you
saw it there’
A. No, sir, 1 have not.
Q. ‘The switchman was required to carry a lantern in his
23 hand?
A. Yes, sir; the switchman carries a lantern in his hand.
Q. And it was required to be lighted?
A. Yes, sir.
The Court: You asked Mr. Lyles to produce something you prove
was broken up?
Mr. Tompkins: It was injured, no doubt, but what was left of it
was there.
The Courr: How do you suppose he gathered up the fragments
of it?
Mr. Tompkins: My idea is this: if that lantern was in existence
it would be the best evidence of what condition it was in. Of course
this witness could tell it was there, but he could not testify the con-
dition it was in. Can’t we ask them to produce it; counsel says
he has not got it; this witness does not know where it is. Can he
testify the condition it was in?
The Court: He said it was broken up, that he saw a piece of it
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 17
Mr. Tomrkrns: Some evidence the lantern was broken up at the
same time Mr. Koennecke was killed; this evidence shows he had
it in his hand at the time.
The Court: He says it was — duty to have one and that he had
one.
Mr. MonveitH: This lantern had been at Cayce recently in a
demolished condition in the yard office, is our information.
The Court: You gave notice for him to produce the lantern, and
it turns out the lantern was broken up. I do not understand how
you can introduce a lantern that has been broken up.
Mr. Monterrn: The information I had about it—not from this
witness—that the lantern was over in the Cayce vard office a short
time in a badly demolished condition.
The Courr: Go on.
24 Q. Who was the man that found Mr. Koennecke?
A. The general impression
Mr. Lytes: I object to the witness testifying about general im-
pression.
The Courr: Not competent.
Mr. Montertn: Mr. Koennecke acted under your instruction?
A. Yes, sir.
Q. You sent him from track 8 to track 3?
A. Yes, sir.
Q. And he had to cross over the tracks in the yard, including
No. 4, and while he was in the act of going over there somewhere
this train backed in from Columbia, backed into tract 4——
Mr. Lyxes: I object; leading.
The Courr: Yes, that is leading.
Mr. Monverrn, repeating: He had crossed over these tracks?
The Court: This witness was there, he ought to know, just ask
him,
Mr. Monveriri: You sent him from track 8 to track 3?
A. From track 8 to track 3.
Q. Did he have to cross over track 4 to get there?
A. Certainly.
The Court: He has done said so.
Mr. Monrerrn: Where were you when you sent him, with ref-
erence to the point he was killed, how far?
A. I don’t know exactly the distance, just across from track 3 to 8
when I was talking to him. I don’t know the exact distance across
the track.
Cross-examination by Mr. Lyues:
Q. Mr. Barker, you were what they call yardmaster?
A. Yes, sir.
Q. That is, you had charge of the switch engine and its crew?
A. Yes, sir.
25 Q. Who was engineer of that train 419 on this night?
A. Beecher.
3—491
EEE LAVOE ERLE DOR ISOM Nae BOER: % ee |
18 SEABOARD AIR LINE RAILWAY Vs.
Who was fireman?
I do not remember who the fireman was.
What switchman did you have?
A. J. T. Koennecke and Charlie Brown.
Q. Brown, he is colored?
A. Yes, sir.
Q. Now, Mr. Barker, before engine 423 came in with these cars
you had taken cabs off track 3?
A. Yes, sir.
Q. That was train No. 67?
A. Yes, sir, from the north.
Q. And it came from Hamlet, N. C.?
A. Yes, sir, as I understand.
Q. You took a cab off that train and took it over to track 8?
Yes, sir.
Q. And while you were over there—then when you left track
Q. You had left thé rest of train 67 on track 37
A. Yes, sir.
Q. Train 67 had, before you started on those cars at all, and had
pulled those cars on track 3, and that engine had cut off and left
cars there for you to break up?
A. Yes, sir.
Q. You had taken cabs to track 8, while you were over there
with these cabs—what were you going to do with the cabs?
A. Had some local cars on 9. To catch those cars and put them
on cabs to go north the next morning.
Q. That was the train that went back to Hamlet?
A. Yes, sir.
Q. In the meantime, while you were there with that cab, extra
77 came in from the south?
A. Yes, sir.
Q. And came on track 3?
A. Yes, sir.
Q. You had left the rest of train 67 on track 3?
A. Yes, sir.
Q. That caused engine 77 to stop?
A. Yes, sir.
Q. It was up to you to take those cars off 3 so engine 77 could
come through and go to the roundhouse?
Yes, sir.
Q. You say 77 came in and stopped on track 3, the same
26 track you left those cars on; you told Mr. Koennecke to go
back and get those cars off 37
A. Yes, sir.
Q. When he got those cars you were to break them up and
put them in tracks they were to go out?
. Yes, sir. .
Q. Then engine 419 actually switched on and got back on track
3 and coupled with these cars?
A: Yes, sir.
Q. At the time it did that, you understand when it first got there,
Q.
A.
Q.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 19
track 8, and coupled up, those cars were some distance down
track 3, toward the south?
A. No, sir; they were pretty close to the north end clearing; they
were not right at the clearing.
Q. When engine 419 coupled up, it started to pull the cars out?
A. I don’t know whether it pulled head in or not.
Q. lt was after the engine came around back from track 8 to
track 3 that 423 came in?
A. Yes, sir.
Q. It was Mr. Koennecke’s duty to see that the engine was prop-
erly coupled up?
A. Yes, sir.
Q. Mr. Koennecke having left track 8 he had already gotten
back to track 3 before engine 423 came in?
A. Yes, sir.
Q. Now, after they started to pull, 419, after 419 coupled up to
the cars on 3, 423 was coming in?
A. From Columbia.
Q. Going south?
A. Yes, sir.
Q. Coming back from Columbia on 423, it took the main line
across the river?
A. Certainly. ‘
Q. And down until it got to the yard; at what point with refer-
ence to the yardmaster’s office did 423 leave the main line?
A. Some little distance, this side of the yard office.
Q. North of the road crossing?
A. Yes, sir.
Q. At that point, it is what they call the north switch?
A. Yes, sir.
Q. The first switch that leaves the main line?
A. When they cross over the north lead switch at Congaree River.
Q. After 423 left the main line, left the track, it was off
27 the main line so far as the movement was concerned?
A. Yes, sir.
Q. At the time 423 came up, running four to six miles an hour,
at the time 423 came up, 419 was standing still, clear of switch on
track 3?
A. Yes, sir.
_ Q. At that time engine 77 was standing still while 423 was mov-
es, sir.
Do you recollect whether engine 77 had an electric light on?
. Yes, sir.
It was burning?
. Yes, sir.
They give a bright light?
. Yes, sir.
Q. That engine was standing still some distance south on track 3?
>OPoro>
20 SEABOARD AIR LINE RAILWAY VS.
A. Yes, sir.
Q. You don’t know whether 423 had a headlight on the rear as
it came in or not?
A. No, sir; I do not recollect.
Didn’t you examine the engine soon after the accident?
Thirty minutes.
Was the headlight burning then?
Yes, sir; burning all right.
Was the headlight on the front of the engine burning?
Yes, sir, at that time.
A switch engine has two headlights?
Yes, sir; both at the front and rear.
Do you know the fireman on 423, colored man?
. I have seen him.
Do you know where he is now?
No, sir.
Do you know whether he is living now or not?
I heard he was dying.
. Now, you say there were lights in the yard, electric lights
around? And was one on the sand house; that house is almost op-
posite to where Mr. Koennecke is supposed to have been killed?
A. Yes, sir.
Q. That is a big light?
A. It was a large light.
28 Q. Now, have you had considerable experience in the
switching service?
A. Not very much; since ’03 is all I have had.
Q. You have been in this work at other yards besides the Cayce
yard?
A. Yes, sir.
Q. How long had Mr. Koennecke worked in the Cayce yard?
A. I don’t know the exact time he came there, but some time in
February.
Q. And he had been engaged in similar duties, since he had been
there up to the time he was killed?
A. Yes, sir.
Q. Do you know whether he worked for the Southern in a similar
capacity before he came with the Seaboard?
A. I think so; I don’t know it to be a fact.
Q. As a matter of fact, speaking from the standpoint of a man
engaged in the switching crew, from vour experience in such matters,
is it practicable to use electric lights in the switching yard for
lights?
A. No, sir.
Q. Tell us if that is not for the reason we have a switch that
cuts off the light and throws shadows; that is correct?
A. Yes, sir.
Q. As a matter of fact, don’t you gentlemen as switehmen—
wouldn’t you prefer not to have any electric lights?
A. If I wanted it at all I would want them high electric lights,
as the lights they give, the shadows blind us.
OPOPOPO>OPOrore
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 21
Q. Did you have any complaint to make about the number of
lights in the Cayce yard at the time it happened?
A. No, sir.
Q. Anything wrong in the yard with the lights?
A. No, sir. :
Q. They were all right from a switching standpoint?
A. Yes, sir.
Q. Had you walked on the walkway between 3 and 4: had you
before this happened ?
A. Yes, sir.
Q. Did you see anything wrong with that?
A. Between 3 and 4?
29 Q. Yes?
A. Nothing wrong at the place Mr. Koennecke was in-
jured.
Q. Anything there to cause a man to stumble and fall?
A. No, sir; not between the tracks.
Q. You stated you did not know whether there was any man on
the rear of engine 423, on the front the way it was going, when
it came back there or not?
A. I do not know.
Q. Is there any rule which required a man to be on the rear of
switch engine backing in the yard?
Mr. Montetru: We object.
A. None I have seen.
Mr. MonseitTu: The rule is the best evidence.
The Court: He can state whether he knows there was such a rule
or not, but he cannot say what was in the rule: the rule is the
best evidence.
Mr. Montertn: It ought to be produced.
The Court: He can state whether he knows of such rule or not.
Mr. Lyxes: The question is going to arise on the application of
this rule. They admitted—over my objection, your Honor has
admitted, and the question is going to arise whether your Honor
is going to rule that out. How are you going to do it without
knowing the situation?
Mr. Tompkins: If the rule is in writing governing the movement
of this train
The Court: The only question is whether he knows of such
rule or not; so far as that goes it is competent, simply to say whether
he knows of such rule or not.
Mr. Lyxes: Are you familiar with Rule U in the time table; do
you know what Rule U is? .
A. I think I do.
Q. You heard counsel read it to the jury?
. Yes, sir.
Q. Tell the Court and jury whether that rule applies to switch
engines; whether that rule applied to engine 423 at the time it is
supposed Mr. Koennecke was run over by it.
ene |
22 SEABOARD AIR LINE RAILWAY VS.
Mr. TompxKins: We object. ~
30 The Court: Let me see the rule.
Mr. Tompkins: He can tell what 423 is, whether the rule
was in force or not; but whether it applied or not is a question of
law. (Rule handed to the Court.)
The Court: That rule seems to be general, Mr. Lyles.
Mr. Ly.es: But look where it comes from. It is in the time table,
which applies to a particular department of the road, general in-
struction for that department.
The Court: If you have a rule in your book that supersedes
that——_
Mr. Lyzes: I have not got it. My information is this does not
apply to switch service.
Ms Tompkins: Is not there a rule there that shows where it ap-
plies?
Mr. Ly es: Is not. Did not the witness testify this time table
had no application except in main line service, and that a switch
engine on the main line was subservient to these rules and regula-
tions; and as soon as the engine left the main line and came in the
yard service it came under a different department withvut rule and
regulation to control?
The Covrr: He has stated that has no application to switch
service.
Mr. Lytes: Answer the last question.
Mr. Tompkins: Whether 423 was or not a main line service
switch engine is a question this witness has no right to decide.
The Court: If ws knows that of his own knowledge he can
answer.
Witness: Can’t say.
Mr. Lytes: I will ask, after 423 left the main line have they a
man on the back of the tender?
Mr. MontertH: We object.
The Court: That rule is general in its application: don’t say
switechman, or what.
31 Mr. Lyies: You have testified the time table applies to
main line service?
A. Yes, sir; does not apply to engine in the yard service.
Q. And none of these instructions apply to engines in the yard
service?
A. No, sir; not within the yard limits.
The Court: You allege it was negligence on the part of the de-
fendant company to back this car in there without having anybody
on it to notify people of its approach ; that will be a question of fact
for the jury, whether under the circumstances, even outside of the
time table, it was encumbent to do a thing of that sort.
Mr. MonrerrH: You are entirely correct, but to show the rule
strengthens our position ; the reason we wish it in there to show, and
contain it does apply.
The Courr: I do not see much difference between you all.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 23
Mr. TompkKrns:
Q. Mr. Barker, Cayce is between Columbia and Savannah?
A. Yes, sir. :
Q. A station on the road?
A. Yes, sir.
Q. If I understand you correctly, you testified that Cayce was in
North Carolina Division; did you mean to say that?
A. Under the North Carolina Division superintendent.
Q. Did you notice on this paper that it says, Seaboard Ry., 8S. C.
Division, between Columbia and Savannah, Savannah and Jack-
sonville, Jacksonville and River Junction, and branches?
A. Yes, sir.
Q. Your idea of that differs from that time table?
A. Yes, sir.
The Court: He said both were the same, anyhow.
Mr. Tompxrns: Now, Mr. Barker, at the time that you sent Mr.
Koennecke across to track 3, did he perform any duty—did I under-
stand you to say he performed duty on track 3 before he was killed?
A. No, sir; I did not say he performed any duty.
32 Q. I understood you to say he connected an engine?
A. No, sir; I did not say that
Q. Do you know whether he ever got to track 3 or not?
A. No, sir, I could not say whether he ever did or not.
Q. What duty did you send him to perform?
A. I went to track 8, where Mr. Koennecke was, the engine was
there, and Charlie Brown; I told him to go to 3 and pull the
cars out to let extra 77 get to the roundhouse; whether Mr. Koen-
necke ever got there I could not say.
Q. What train had he gone there to get?
A. No. 67, from Hamlet, local freight.
The Court: He has already testified to that.
Q. The track was 77?
A. On track 3.
Q. Facing north?
A. Coming from south, headed north.
Q. Was track 67?
A. Track 3.
Q. How was it headed?
A. South.
Q. Do you know how far engine 67 was?
A. The engine had been there some time; he had cut off and gone
to the engine house.
Q. I mean the cars?
A. I do not know.
Q. The lights you speak of as being near the station there was an
are light?
A. No, sir; I did not say an»thing about near the station ; I said
near track 4.
Q. What part of track 4 was that light?
24 SEABOARD AIR LINE RAILWAY VS.
A. It was near 4 switch, where the track leads in from the lead
on the yard tracks, starting off from the lead.
Q. The light was how many car-lengths from where Mr. Koen-
necke was killed?
A. I could not say, just across the yard from 4; had a light on
the sand house and one on the coal chute.
Q. What kind of power lights were those?
A. I do not know.
Q. How big a globe?
A. Large size globe.
Q. Not an are light?
. No.
33 Q. You testified those lights were down low; suppose those
lights were placed high?
A. | did not testify that those lights were low; I testified the lights
in the yard were placed low and the cars would throw a shadow over.
Q. Suppose placed high?
A. If placed high would be a great advantage to the yard, I said
that; but those lights were placed high,
Q. If the are lights were like those used in the city, would throw
more light and be of more benefit?
A. Yes, sir; if placed high enough above the box cars.
Q. You were subpenaed by the attorneys for the plaintiff?
A. Yes, sir.
Q. Have you been in consultation with Mr. Lyles, attorney for
the railroad, since you have been here?
A. No, sir.
Q. Had you been in consultation with him before that?
A. No, sir; never met him until on the street, he said he wanted
to see me; this morning I saw him.
Q. Did he discuss the facts of this case with you?
A. No, sir; not specially; spoke to me about the case coming up,
said to meet here at 9:30.
Q. He wanted you here?
A. Yes, sir.
Q. They have you subpenaed?
A. Yes, sir.
Q. Have you discussed the case with any of their claim agents?
A. No, sir; I do not know any of the Seaboard claim agents.
Q. How long had Mr. Koennecke been in the service of the Sea-
board?
A. Since some time in February.
Q. Had he the same position during that time, switchman all the
time?
A. I could not say.
Q. You don’t know?
A. No, sir; he was not hired as a switchman, but as yardmaster I
understand, night yardmaster.
Q. At that season of the year state whether or not the railroad had
reduced its force over in that yard?
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 25
34 Mr. Lyies: We do not see that that has any bearing on
the case.
Mr. Tompkins: We ask this question to bring out the point that
he had at times occupied more remunerative and more responsible
positions than he was at that time, they switched him up and down.
Mr. LyLes: Just ask the witness the question.
Mr. Tompkins: Oh, well, you objected to it. That train coming
in from Columbia which is supposed to have killed Mr. Koennecke,
had how many car boxes?
\. 1 don’t know; I suppose about 18.
(. Some of those boxes were still on the main line when he was
struck?
A. No, sir.
Q. Are you sure about that?
A. Yes, sir.
@. Where were you standing?
A, At track 3.
Q. Was the place he was killed as much as 18 car lengths from
the main line?
Yes, sir.
Q. He appeared to have been dragged some distance?
A. Not over two car lengths, something like that.
Q. Now, this train was the last train that had come over the main
line into the yard, wasn’t it at that time?
A. Yes, sir,
Q. They had the right of way over the main line at that time;
and do you know why they took that track 4 at that time?
A. Yes, sir. That was the only track open at that time.
Q. Was it for the purpose of getting off—clearing the main line?
A. Yes, sir.
Q. Was there light sufficient in the yard at that place for the fire-
man or engineer to have seen a man on the track?
A. Yes, sir,
Q. If he had been looking out?
A, Yes, sir.
35 Recross-examination by Mr. Ly.es:
Q. You said the lights in the Cayce yard were placed up high?
A. Yes, sir.
. In the proper position?
A. Yes, sir.
Q. And they gave plenty light at the place where Mr. Koennecke
Was struck?
A. Yes, sir.
(. Nothing to keep him from seeing engine 423 there?
A. No, sir.
Q. How about the electric headlight on extra 77; wasn’t that mak-
ing things so bright you could pick up a pin?
A. Made things bright.
Q. You say 4283—engine 419 had come to couple the cars on
train 67?
4+—491
96 SEABOARD AIR LINE RAILWAY VS.
A. Yes, sir.
Q. If Mr. Koennecke was attending to his duty—his duty required
him to be there next to the engine?
A. Yes, sir.
Q. He had plenty of time to get through before 423 came in
there?
A. Yes, sir.
Q. No. 67 came in from Columbia, didn’t stop at Columbia?
A. No, sir.
Q. Brought the cars there solid?
A. Yes, sir.
Q. You took the cars out of that train and set them on the tracks,
and those coming to Columbia you brought back to Columbia?
A. Yes, sir.
Q. Those going to Savannah and Jacksonville you put in trains
going there, and those going to Hamlet you put in trains to go there;
that is what 419 went backing that train for?
A. Yes, sir.
Mr. Tompkins: The complaint in this action does not allege, it »
does not allege specifically that Mr. Koennecke was killed in the
interstate service. Counsel for defendant have brought out from this
witness, who seems to be familiar with the surrounding facts, the
movement of these trains and the duty of Mr. Koennecke. The
facts, in our opinion, make this case governable by the Federal Em-
ployers’ Liability law. Realizing that, we think it proper at
36 this stage of the case to offer an amendment to our complaint,
which will allege he was in such service.
Anticipating this might be done during the trial, we have our
motion reduced to writing.
The plaintiff hereby moves to amend the complaint as follows:
1. To amend paragraph two (2) by adding after the word ‘“Rail-
way,” on line 7, the words “from the City of Hamlet, North Caro-
lina, to the City of Savannah, Georgia, through the States of North
and South Carolina and Georgia.”
2. To amend paragraph three (3) thereof by adding after the
words “South Carolina,” on the last line of said paragraph, the
words “and was engaged in switching cars, making up and breaking
up trains running and.operating between Columbia, in the State of
South Carolina, and Hamlet, in the State of North Carolina, and
between Columbia, in the State of South Carolina, and Savannah, in
the State of Georgia, the said trains carrying freight between those
ints.’
poThe Court: I would like to state my views about this matter.
Under Lord Campbell’s Act, originally passed in 1859—before that
time if a man was killed through the negligence of another, the
action died with it—but in 59 Lord Campbell’s Act was passed ; since
that time it has been amended in various ways. One time it was
amended by allowing a party to sue for punitive damages; the Su-
preme Court held before that time could only recover .compensa-
tory damages; that was the law that controlled in the matter where
a party was killed by the negligence of another that such action wag
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 27
brought for the benefit of the wife and child or children, &c., by the
administrator. The Supreme Court held it was not a survival of the
old action, a new action for the benefit of the beneficiaries of the
deceased. in ‘08 Congress passed a law known as the Employers’
Liability Act, which superseded the State law entirely, super-
37 seded Lord Campbell’s Act, where the party was engaged at
the time in interstate business. They have extended that
very far. One case where a man was going down and took the num-
ber of a freight train that was coming in from another State; they
held that the Act applied even to a case like that. Now, where a
party is not killed a different rule applies, in this way,—strikes out
certain defenses, for instance, the defense of contributory negli-
gence, does not allow that; but when it comes down to a death action,
absolutely supersedes the State law, and gives a new cause of action
by the personal representative for the benefit of all parties dependent
on him for support. But you cannot recover punitive damages, the
only thing you can recover is actual damages. You allege and claim
punitive damages in this complaint; all of that would have to come
out, and then you would have to allege. under that Act you would
have to allege he left a widow and left children who were dependent
on him for support. There is one case where they held, where the
daughter was married and was not dependent for support, that it
Was not proper to include her in the case. I do not know who he left
dependent on him for support, but in drawing the complaint, under
that Act of Congress, you will have to follow it, which states you can
only recover compensatory damages.
Mr. Tompkins: We, of course, after the amendment, shall not
ask for punitive damages; your Honor can charge that out; don’t
think it necessary to change the complaint on that. We have al-
leged in this complaint facts which would bring it under that Act so
far as the beneficiaries go.
The Court: Where is that?
Mr. Tompkins: Paragraph 7 (paragraph 7 read). We have
looked into that matter carefully. We are confident under this com-
plaint we can prove to what extent each one was dependent on him.
Your Honor would have to instruct the jury, it is for them to
38 find a verdict—apportion it out. We anticipated this might
happen. We have gone over the complaint very carefully.
We think the amendment which we offer is all that would be neces-
sary for this Court to try under the Federal law, and give such ex-
pression to that Act as the decision of the Supreme Court requires.
We ask to allow us to amend the complaint in the particulars asked
in the motion.
The Courr: What do you say, Mr. Lyles?
Mr. Lyies: As I understand, the question before the Court is the
motion to amend the complaint, by changing the cause of action
from one under the Lord Campbell’s Act to one under the Act of
Congress known as the Federal Employers’ Liability Act. My posi-
tion is your Honor has no power under the practice of this State to
grant this motion.
The Courr: I do not care to hear further from you on that. That
28 SEABOARD AIR LINE RAILWAY VS.
is substantially an entirely different cause of action. You can amend
during the trial, provided it does not substantially change the cause
of action, and you will have to do that. You cannot stand on this
complaint as it is now; it is an entirely different action. During the
trial of a case the Judge cannot substitute an entirely different action.
As Mr. Lyles says, it is as different as anything could be; it is an en-
tirely different cause of action. I would not have jurisdiction to do
that.
Mr, Tompkins: That question has been pretty well threshed out
by the United States Supreme Court. The text-book writers take
this position, that where a change is made, an amendment is
made——
The Court: Let me suggest to you, this is not an amendment;
you cannot amend a suit brought under Lord Campbell’s Act so as to
bring it under the Act of Congress. When an action is brought
- under the State statute, and the other under the Federal stat-
39 ute, that is substituting an absolutely different action. Your
suit is brought technically under Lord Campbell’s Act——
Mr. Tompkins: Under the United States Lord Campbell’s Act,
too.
The Court: You do not allege that at the time this party came to
his death that he was then engaged in interstate traffic. interstate
commerce. Our Code says you cannot substitute one cause of action
for a different cause of action. You make it under the Act of Con-
gress, That is not an amendment, but a new action.
Mr. Tompxtns: Will your Honor hear argument on that?
The Court: Yes, sir.
Mr. Tompkins: This does not change a single fact in our case.
We have not alleged that this was intrastate business: we do not
allege whether intra or interstate, nothing said about that: but if
they wished to take advantage of that they could have made us make
it more definite and certain. We come into Court with a complaint,
and do not say what law it is brought under, whether interstate or
intrastate. The rule of law which we will contend for and ask the
Court to invoke is not the rule for proving the case at all, but the
rule of law which governs the amount of damages—distribution
damages: don’t affect the cause of action—same cause of action—
exactly like the law in both interstate and intrastate; but the rule
of law that applies in one case is the Federa! Act, and the rule of law
that will apply in another is the State law.
The Supreme Court has allowed and refused amendments, but
they have set out in a decision the distinction which they make. I
think if your Honor will listen to the case you will see that this
amendment is properly made, and made at the right time. and T see
no reason why we should be thrown out, and forced to bring a new
action, and wait a long time to have it brought in Court again when
it can be tried under this amendment. The Court has the
40 right during a trial to amend a complaint in so far as the
same may be necessary to conform the pleading to the proof.
This action is heing tried by the State Court, and will be governed by
our rule; is a discretion allowed the Court; in making this amend-
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 2°
ment, will not be governed by the rule of the United States. but by
our own rule.
The Court: I throw this out as a suggestion,—you do not name
the children.
Mr. Monrerrn: Yes, sir, we do: we name them by name.
Mr. Tompxtns: Paragraph 1.
The Court: All right, go ahead. Do you allege they are depend-
ent-on him for support?
Mr. Monrerrn: We say for their benefit. (Argued fully.)
The Courr: Since hearing argument I am satisfied that the State,
having complete control over the whole matter—pleadings—would
have the right to allow the amendment. But when a party comes
into Court, with your complaint, expecting to meet a trial of the
cause under Lord Campbell's Act, and you switch off to try him
under the Federal law—if Mr. Lyles says he is not ready to proceed,
I will allow you the amendment, and you can take it up on the 8th
of July. TI think it right the amendment should be allowed, and if
Mr. Lyles says he is not ready, not prepared to meet the issue, will
take it up later. When T read the complaint I thought right off, I
said this is going to be a case under Lord Campbell’s Act. Had all
the features of it. While you do not refer to the Act, not necessary
to refer to it; but still you sue for punitive damages: I thought it was
a case under Lord Campbell’s Act. Here is a matter I might say,
you have to prove who is dependent on him for support, which ones
of the children ; that raises a fact you might have to look into. One
child might he entitled to more than another child, and it is a ques-
tion of proof. to what extent they are dependent.
Mr. MonretrH: We understand the recovery is limited.
4) The Court: The only question is whether or not this
amendment is of such character as ought not to be allowed
during the progress of the trial. I am satisfied the Court has com-
plete control over the whole subject, has the right to allow an
amendment, but whether the character of this amendment, taking it
that you are going to switeh from one law, and try it under another
law,—whether or not that is such an amendment as the Court ought
to allow, and has the power to allow under the law. :
Mr. Monrerru: You want to know whether Mr. Lyles is preju-
diced by going to trial?
The Court: The Supreme Court has held in three er four cases
that a judge has the power to allow an amendment during the
progress of a trial, if it does not change the cause of action; in a case
in 46 S. C. vs. Mfg. Co., Judge Townsend said he did not have any
power to allow the amendment, merely making a change in the alle-
gation, by alleging the machine was at one place instead of at an-
other place. The Supreme Court said you had the right to do that
during the progress of the trial. But i do not know of a case like
this, where you change the law. You are going to presume Mr.
Lyles knows the law; I do not know whether he does or not.
Mr. Monrerru: I am satisfied Mr. Lyles knows the law.
The Court: He may or may not, but you are going to change the
whole thing; you are going to try the case on these facts and under
30 SEABOARD AIR LINE RAILWAY VS.
a different law. He might say he did not come prepared to try it
under that. I will hear you on that.
(Argued.)
The Court: I will not dismiss your case. The only question is, is
this a proper case; are there any authorities in this State to meet a
case like this, where you change some essential facts and bring in a
new law to govern, is that such an amendment as ought to be
42 allowed in the trial? I will not think of dismissing your
complaint. JI think you are entitled to the amendment.
Mr. Lytes: The point I make is: under our procedure the Court
has no power to grant the amendment. If your Honor rules you
have the power, then the question comes up, are you going to exer-
<< discretion, and the question of surprise will be for me to
make.
Plaintiff's counsel called particular attention to allegations in the
original complaint as to dependency, and also to the statute known
as Lord Campbell’s Act, and stated that they believed the case could
and should be tried under either the State or the Federal law, accord-
ing to the evidence as developed on the trial, without the complaint
being amended at all.
The Court: After hearing Mr. Tompkins—he made a very clear
statement of the law to me on that—I am inclined to think possibly
he would not have had to amend his complaint at all. 1 am inclined
to think now I will have the power to do that, and so hold; but if
you say that you cannot go to trial and that you are taken by sur-
prise I will not force you to trial.
Mr. Lyzs: If your Honor rules you have the power to make the
amendment, before we get to the question whether you are going to
grant it or not, I submit I am entitled to a nonsuit in the case, on
the question of power. We are entitled to go forward with this
trial on the pleadings as they now stand; and if they are not going
forward 1 think I am entitled to a nonsuit as the case now stands.
That is to keep this record straight on the question of power to grant
the amendment. I am convinced the Court has no power to grant it.
The Court: He is not through putting in evidence.
Mr. Tompkins: If this case goes on, and is tried, we will want
counsel to have the benefit of his objection. He has the right to
carry his case to the United States Court, and if he reverses
43 us there it would be much more favorable to him than if he
got a nonsuit; but if we took a nonsuit and stopped we could
bring this case over, which we would have the right to do. If coun-
sel is impressed with his own authorities it strikes me he would sit
back and let us go on; and if he reverses us in the United States
Supreme Court——
The Court: The Supreme Court of the United States would aot
hear any matter until after final judgment.
Mr. Tompxins: We are representing the widow and children of
Mr. Koennecke. Your Honor can see we have gone to a great deai
of expense and trouble; all the witnesses are here, and it is probable
we would never be able to bring them here again; probably some
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC, 31
of them may go out of the country. If your Honor should decide
against us, or put us off to the next term, you might deprive us of a
right which in law we ought to be entitled to.
The Court: I have ruled on that. Testimony has been devel-
oped that goes to show this man was engaged at the time in inter-
state business, and you ask to amend your complaint so as to con-
form to the proof. I conclude I have the power to allow the amend-
ment, and so hold; but I would not like to force counsel on under
those conditions, if he says he cannot go safely to trial.
Mr. Tompkins: If he convinces the Court that he cannot go safely
to trial, that he will be prejudiced by this amendment, he should be
required to present to this Court reasons, and he has failed to do it.
I do not think he is entitled to come in Court without doing this,
He is an attorney and ought to be prepared to try this case under the
law which it is triable under.
The Court: When this matter was first mentioned I was inclined
to think it was such an absolute difference as to demand a dismissal
of the complaint. After hearing argument and decision of the
Supreme Court of the United States, and thinking over the
44 matter, I have changed my views on that; and the question
comes up whether or not the Court had the power to allow the
amendment during the progress of the trial. Well, testimony came
out, Mr. Lyles brought it out himself on the stand, and I think,
under the law, the testimony having been brought out, that you
should be allowed to amend the complaint, if you think it advisable
to do so, so as to conform it to the facts, and allege he was engaged in
interstate traffic.
Now, Mr. Lyles took the position that the Court has no power to
allow the amendment. He says it will have to be tried under the
Federal law. When I read the complaint I concluded it was a suit
under Lord Campbell’s Act. If counsel says that he has been misled,
that this complaint led him to believe that he came here for the
trial of this case under the law as laid down in Lord Campbell’s Act,
and if he has been taken by surprise by the questions of fact you
propose to insert in your complaint, and on account of the fact, it
is being tried under a different rule, laid down by Congress and
construed by the United States; if he says that, he being an honor-
able member of the bar, I will grant a continuance; if he does not
say that we will have to go on with the case. Do you say, Mr. Lyles,
that you are taken by surprise; if so, I don’t think I ought to force
you. TI have decided I have the power, and I think the amendment
ought to be allowed, and the case ought to proceed, unless you say,
on account of the change, you will be taken by surprise.
Mr. Lytes: If your Honor requires me to speak I will be careful
in what I say. I cannot say I am not familiar with the Federal
Employers’ Act of Congress. I am not prepared to meet the issue
this change of dependency will bring out.
The Court: If you cannot do it——
Mr. Tompxins: That is a matter which we think could very well
32 SEABOARD AIR LINE RAILWAY VS. |
be made between now and the time we finish our case. It
45 strikes me this being in your Honor’s discretion, it would be
hard on us to require this good lady to go out and spend
money to bring the witnesses back here, and be delayed in the trial
of her case, simply on the question of dependency on the party who
was killed. If he is prepared on the other phases of this case. He
said he was prepared on everything except dependency, which [ sup-
pose means dependency of the children of Mr. Koennecke on him.
The complaint alleges all these facts, and he knows the law that will
be applied in this case; and if he is prepared for that law, he must
have known we wvuld have to prove the dependency. If your
Honor pleases, I do not think, on a little quibble like that, that the
rights of litigants should be put aside, and that they should be
required to go out and spend a great sum of money to bring these
witnesses here. In the last paragraph of the complaint we allege
that Mr. Koennecke left his wife, the plaintiff, and his four children
who were dependent on him for support.
Mr. Lyuxs: I would like to be heard on that point. It appears
from this complaint that one or more of these children are married.
That makes no difference under the Lord Campbell’s Act of our
State; makes a most essential difference under the Federal Act. Also
one or more of the children are boys, maybe they are working and
supporting themselves; makes no difference under the State Act, but
under the Federal Act. Two boys and a young lady beneficiary,
either cne of these three may be working and supporting themselves.
I have not been called on, and there is no reason why | should have
been called on to have that question investigated on the complaint
| am brought here to meet.
The Court: | told you if you are not ready to go to trial in this
case I will not force you.
Mr. Lyues: | am not ready to go to trial. [am not ready to meet
the issue of dependency.
46 Mr. Tompkins: We wish to announce that we do not claim
that J. F. Koennecke, the young man who has just begun
to work for himself, and the married daughter are entitled to any
recovery whatever. We propose to prove that the widow, and the
young son who is in school, and the unmarried daughter, who lives
with the widow, are entitled to the proceeds of this verdict. Mrs.
Watson, and this young man, we propose to prove that they were not
dependent on their father for support, and that he did not contribute
to it; but that he did contribute to the minor son and his young
unmarried daughter, who is a minor, and his widow. That takes
from him the very question he ays he is not prepared to meet. We
are entitled under the law to a trial; your Honor should use discre-
tion in the furtherance of justice, and not in the furtherance of a
technicality. We ought to go on, as it will be disastrous and ex-
pensive, and will prejudice the rights of this plaintiff to have this
case go over this term.
Mr. Lyies: How do I know how much Mr. Koennecke contrib-
uted to his family ; how do I know that this other young lady is not
working and supporting herself; how do I know the other young
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 33
man is not working and supporting himself? It may be very true
that they will testify as to the truth of the matter, perhaps they
will, but we are entitled to a preparation of the issues, and on the
evidence ; we cannot go on the presumption of other people, that they
will testify the truth; our right is to have an investigation made to
meet it.
The Court: Proceed with the trial of the case. Counsel ought to
have known that this question would come up anyway.
Mr. Lyxes: I do not want to get on the record wrong.
The Court: You had the opportunity to continue the case, and
would not avail yourself of it; it is not my fault. I left it in your
hands, and you would not avail yourself of it. I was going
47 to continue the case, if you had said, under the circumstances,
you could not go to trial.
Mr. Tompkins: We have not had the order prepared or signed.
The Courr: I will fix that. Understand it is amended that way.
Mr. LyLes: I would like to have the order and amendment.
The Court: I will consider that signed. Go ahead.
His Honor then signed and filed the following:
Order.
This was a motion made during the trial of the above entitled
cause on the part of the plaintiffs to be allowed to amend their com-
plaint with certain regards, as set out in the motion, which is filed
in the case,
After hearing argument pro and con and on statements made
in open Court, I feel that this amendment should be allowed; and
it is, therefore,
Ordered, 1. That paragraph two of the complaint be, and the
same is hereby, amended by adding after the word “Railway,” on
line seven of the complaint, the words “from the City of Hamlet,
in North Carolina, to the City of Savannah, Georgia, through the
States of North Carolina, South Carolina and Georgia.”
2. That the complaint be amended in paragraph three by adding
after the words “South Carolina,” on the last line of sai? para-
graph, the words “and was engaged in switching cars, making up
and breaking up trains running and operaiing between Columbia,
in the State of South Carolina, and Hamlet, in the State of North
Carolina, and between Columbia, in the State of South
48 Carolina, and Savannah, in the State of Georgia, the said
trains carrying freight between those points.”
# W. A. HOLMAN,
Presiding Judge.
Columbia, 8. C., May 21, 1914. ‘
34 SEABOARD AIR LINE RAILWAY Ys.
D. A. Sprres (white), sworn, says:
Mr. MonreItTu: .
Q. Where do you live?
A. Been living in Columbia last few months, but gone to Jack-
sonville to live now.
Q. Who have you been employed by recently?
A. Been working for the City of Columbia.
Q. Were you employed by the Seaboard in June, ’13?
A. I was.
Q. What about your duties?
A. I was flagging at that time.
Q. Ran from where?
A. Ran from Cayce to Jacksonville, down to Savannah, run each
way; from Cayce to Savannah and Savannah to Jacksonville.
Q. Did your train come into the Cayce yard on the night Mr.
Koennecke was killed?
A. Came in that evening.
Q. Where did your train stop, where did the cab stop?
A. The cab of the train I came on was left in the yard; I was on
the cab that night making out reports, down in the south end of the
ard?
‘ Q. Did you leave the cab?
A. When I finished my report.
Q. When you came up the yard did you notice any train back-
ing in there?
. I did.
. Any headlight on it?
. No headlight.
. Anybody on the rear of it?
. No one on the rear of it.
. Shortly after that train—what track was that backing in on?
A. Track 4.
49 Q. What train was that?
A. That was engine 423, coming over from Columbia, I
OFroOoPpopr
suppose.
Mr. Lyues: I object. He testified he supposed.
Mr. MonterrH: Engine 423?
A. Yes, sir.
Mr. Lyes: I object to that.
Mr. MonteirH: Was it engine 423?
A. 423.
Q. Did your engihe pass you as you were walking up the yard?
A. Yes, sir.
Q. oni | after that engine passed was your attention attracted
to anything
A. Yes, sir; I heard something under the train, I could not tell
whether a man, something hollered. I found it was a man under
the train.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 35
Q. Was that the train that was backing in?
A. That was the train backing in.
Q. Did you hear this man calling for anything?
A. I heard him calling for
Mr. Lyxs: I object.
Mr. Coss: Anything that happened at that time is part of the res
The Court: Go ahead. Isn’t that part of the res geste?
Mr. LyEs: I do not see how it is.
The Courr: The Supreme Court in one case, a man was shot
and he immediately exclaimed that some one had shot him.
Mr. Lytes: That was in a criminal case.
Mr. Coss: We do not insist on it.
Mr. Monrteirn: Your attention was attracted by the call?
A. Yes, sir.
Q. Did you discover that some one had been run over?
A. Yes, sir.
Q. Did you run up in the yard and give the alarm?
A. I told Mr. Warmack was a man, I told him; I didn’t know at
that time who it was.
Q. Did you afterwards learn who it was?
A. I found out it was Mr. Koennecke.
50 “ Had you noticed Mr. Koennecke before you heard him
call
A. I had not.
Q. You were not working with Mr. Koennecke?
A. Was not.
Q. And your cab was in the south end of the yard?
A. South end of the yard.
Q. You were walking up towards the station?
A. Toward the office.
Q. The train that was backing in, was it going in an opposite
direction to which you were walking?
A. Opposite direction to which I was walking.
Q. Have you ever been a switchman in the Cayce yard?
A. I have.
Q. What have you to say about the condition of the yard there
as walkways for employees?
A. The yard now is in fairly good condition, was when I was
switching there.
Q. Not as level as it was, the time Mr. Koennecke was killed?
A. Cinders piled in the walk, couldn’t walk between the tracks,
came from being dumped out, left them in piles, and had not got
level at that time; but the vard now is in fair y good condition.
Q. You know that condition existed where Mr. Koennecke was
killed; did that condition exist at the point where Mr. Koennecke
was killed?
A. I will not say positively, but that was the way ‘the whole yard
was, you might say; of course was some level spots in there, but I
don’t know the place where he was killed, how it was.
36 SEABOARD AIR LINE RAILWAY VS.
Q. You have seen them unload clinkers and coal there?
A. Yes, sir; just shoved them between the aisles, by dumping
out there, and left them in piles, sometimes about two feet high,
sometimes level.
Cross-examination by Mr. LYLEs:
Q. The condition that existed in Cayce yard at the time
51 Mr. Koennecke was killed had existed there some time?
A. Yes, for some time.
Q. a. Koennecke had been employed as switchman some time
there?
A. I think so; he had been there some good while.
Q. How long before this had you been switchman?
A. I was not switechman before that. I was flagging on the South
Carolina Division. I have switched there since then.
. Where did that engine pass vou?
. Some eight or ten car lengths from the switch-off from the
That was over in the yard?
. Over in the yard.
It was coming in track 4?
Yes, south end of the yard, in track 4.
What train did you come in on that night?
Extra that evening.
Where did you come from?
. From Savannah.
What time did you get there?
. At Cayce?
Yes?
. I don’t know what time I registered for.
. Rather funny vou do not know anything about the train you
came on, yet you know the number of the engine that ran over Mr.
Koennecke. You had to make out report?
A. Yes, sir.
Q. You have to set out in the report the number of the train
you came up on?
Yes, sir. I haven’t got that report to look at.
You haven’t got the report of 77?
I didn’t come on 77.
You haven’t got the report?
No, sir.
You know Mr. Bloom?
Yes, sir.
You stole Mr. Bloom’s mule down there?
No, sir.
Didn’t you admit to him you had stolen it?
No, sir.
Didn’t your friends get him not to prosecute you for it?
No, sir; I didn’t know anything about it.
You know Mr. Bloom?
>
PPOPOPOPOPOP>OREO
OPOPOPOPOPOror
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 37
A. Yes, sir.
52 Q. He had you indicted for it?
A. Yes, sir; on suspicion.
Q. You admitted to him vou had stolen it?
A. No, sir.
Q. And got him to drop the case?
A. No, sir.
Q. You know Mr. Hurley?
A. Yes, sir.
Q. Mr. Hurley discharged you from the service of the Seaboard?
A. He did.
4 Q. Discharged you from the service because you were asleep on
uty
A. Yes, sir.
Q. You have kind of got it in for the Seaboard?
A. I’ve worked for the Seaboard since then.
Q. You didn’t make a notation in writing of the engine that ran
over Mr. Koennecke?
A. I did not.
Q. You haven’t got a notation of the train you came up on?
A. No, sir.
Q. Yet you made a report of the cars?
A. Yes, sir. ;
Q. You cannot remember the number of that train, or the num-
ber of the engine?
A. I cannot remember the number of the engine.
Q. You remember the number of the engine that ran over Mr.
Koennecke?
A. That has been talked of often since then.
Q. How did you happen to notice there was no headlight on the
engine?
A. It was coming toward me.
Q. Are you willing to swear you recollect that, or don’t. remember
about it?
A. To my knowledge was no headlight.
Q. Do you know whether there was or not?
A. I will not swear to it, but to my knowledge was no headlight.
Q. Will vou swear to that?
A. I will not.
Q. You say you do not know where Mr. Koennecke was standing
at the time just before he was killed?
A. I do not.
Q. You will not undertake to swear that the ground at the place
he was standing was uneven?
A. I would not swear to it. ;
Q. Were places in that ground where it was all right?
A. Some places.
53 *Q. You wouldn’t swear he was standing at a place where
it was rough? aie? :
A. No, sir. I would not swear to it because I did not see where
he was standing.
38 SEABOARD AIR LINE RAILWAY Ys.
Redirect examination by Mr. Monrerra:
Q. What electric lights were in the Cayce yard at this time that
you know of?
A. Wasn’t in the yard, some off from the yard.
Q. What sort of light was light?
A. I do not remember much about the light.
ns td are not prepared to tell us the location of the different
ights?
A. No, sir; I did not pay attention to them.
Mr. Ly.ezs:
Q. You say you do not remember about the location of the lights?
A. I do not.
Q. You would not undertake to say what Mr. Barker said about
the location of those lights is incorrect?
A. I would not say anything about the lights.
Q. You do not mean to testify about the lights, how many there
were, or anything like that?
A. No, sir; I don’t remember about the lights.
Wo. Wiruers (white), sworn, says:
Mr. Monretru:
Q. You are a railroad man, are you?
A. Yes, sir.
Q. Did you ever switch over to Cayce yard?
Yes, sir.
Q. Did you go to work there soon after Mr. Koennecke’s death?
A. Some time after.
Q. How long?
A. About three months.
Q. You were not there at the time. Had you been to Cayce about
the time Mr. Koennecke was killed?
A. Yes, sir.
54 Q. You know about the condition of the yard?
A. Like all other new yards.
Mr. Lytes: I object. The witness did not start to work there until
three months after.
Mr. MonterTH: He testified he had been over there.
The Court: Let him answer about the yard.
Mr. MontertH: Were those walkways uneven or smooth?
A. Some places were rough, some places smooth, owing to the
condition the section master had it in.
Q. You have had considerable experience as a switchman?
A. Right smart, yes, sir. :
Q. You ever switch between Columbia and Cayce?
A. No, sir; not between Cayce and Columbia.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 39
Cross-examination :
Q. When you say the yard—in the first place, you don’t know
where Mr. Koennecke was killed?
A. No, sir.
Q. You don’t know the condition of the point where he was
killed?
A. No, sir.
Q. You don’t know, of course, whether the ground there was
smooth or rough?
A. No, sir.
Q. Now, the place you noticed as being rough, clinkers, you mean
little uneven?
A. Where they unloaded the clinkers.
Q. Of course, where the car unloads clinkers there is a pile there
until it spreads out?
es, sir.
sa where the ground had been prepared, it was all right
then
A. Yes, sir; where it had been worked down.
Q. You would not undertake to say as to the condition of the
walkway where Mr. Koennecke was Killed that night?
A. No, sir; not that night,
Q. May have been perfectly all right, so far as you know?
A. So far as I know.
55 J. F. Kornnecke (white), sworn, says:
Mr. MonrertH:
Q. You are a son of Mr. Koennecke that was killed?
A. Yes, sir.
Q. Did you go over to Cayce right at the time your father was
killed, or the next day?
A. About two or three days after.
Q. Was the place pointed out where he was killed?
A. Yes, sir.
Q. What track was that on?
A. I understood between 3 and 4.
Mr. Lytxs: We object. Evidently the witness is acting on in-
formation.
Mr. MonteiTH: We withdraw that. Did you see blood on the
track where he was run over?
A. Yes, sir.
Q. It was pointed out as the point he was run over?
A. Yes, sir.
Q. Did you make some kodak pictures of the place?
A. Yes, sir.
Q. Between the tracks; are those the pictures you made?
A. Yes, sir.
40 SEABOARD AIR LINE RAILWAY VS.
Mr. Lyes: I do not think those pictures are competent. Not
identified here as the place where Mr. Koennecke was killed.
The Court: He said it was pointed out to him.
Mr. Cops: He said he saw the blood there.
Mr. Lytes: You have to identify a thing before you put it in
evidence, cannot put it in by information given by other people.
The pictures are small—kodak pictures—almost impossible to tell
anything from them.
The Court: Let me see them. (Handed to the Court.)
Mr. Coss: We have proved Mr. Koennecke was killed in the
Cayce yard; we have proved there was blood at the spot where
56 he was killed. We are endeavoring to prove by this witness
he had the place, where the blood was, pointed out to him,
and he took pictures of the walkway between the tracks at that
place.
The Court: Did you see spots of blood there?
Wirness: Yes, sir; and found toe-nails and flesh.
(Kodak pictures offered in evidence. )
(It is agreed that the original pictures may be exhibited to the
Supreme Court by either side, and filed as exhibits in this case.)
Mr. MonrerrH: What was the condition of the walkway as you
saw it there?
A. Was some holes all right; between the crossties seems to have
been where there was something before that, and washed holes under
there, and clinkers there also, several piles of clinkers, some hard
clinkers, had been there some time, and the rain soaked in and
make it stand.
Q. In the pathway?
A. Yes, sir. Also a couple of pins lying on the side where I saw
blood and bone and toe-nail and such as that; it seemed in a bad
shape right there.
Q. You have testified you are a son of the deceased?
A. Yes, sir.
Q. You are not claiming any benefit under this case?
A. No, sir.
Q. Your name should be stricken out as a beneficiary under the
Act?
A. Yes, sir.
Q. You are working and taking care of yourself?
A. Yes, sir. 4
Q. And were at the time of your father’s death?
A. Yes, sir.
Q. Did you live at home?
A. Yes, sir.
Q. You work and take care of yourself?
A. Yes, sir.
Cross-examination :
Q. You spoke of, said there were some holes there next to thé
crossties; what sort of holes?
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 41
A. Washed, where the rain probably came in and washed where
the clinkers was.
57 Q. That entire yard is built out of what they call cinders,
clinkers?
A. I don’t think all built out of clinkers.
Q. Those were walkways you found in Lexington County ?
A. Yes, sir.
Q. You know that is in a sandy section?
A. Yes, sir.
Q. Don’t you know they made the ground hard, beat the clinkers
in that sand?
A. I don’t know; they usually do that. Holes between the cross-
ties, where the rain came in there and soaked down.
. That was between the crossties?
. Yes, sir; outside near the rail.
You mean in between the rails?
. Yes, sir; and the rails between the crossties,
- The crossties stick up above the raised ground?
Yes, sir,
The crossties not covered up?
No, sir, not all.
What tracks?
3 and 4, °
. Those holes you mean were where the crossties were raised
the ground?
Some lower than others.
. Wasn’t filled in between the rails, between the crossties, is that
what you mean?
A. Yes; never had been filled in, just holes in there.
Q. You mean the holes you saw were in the pathway ?
A. Some in the pathway, and also between the rails, between the
crossties.
Q. On the track?
A. On the track and in the pathway.
Q. What was your father doing at the time he came to his death?
A. I understand he was a switechman,
- Do you know how much he was making at that time?
. I do not remember, making from $100 to $115, something
like that, to $135; he was just temporary switchman; he was yard-
master; he took the position of night yardmaster; he was night
yardmaster at first, then he was yard conductor; business fell off
and made him switechman ; probably that did not ay him as
58 much as yardmaster, but he was there temporari y working
as switchman, probably two or three nights,
Q. How do you know that?
A. I understood that from him, and I understood it over there;
I talked to several men over there.
Mr. Lytes: We do not want your understanding acquired
through other people; do you know yourself how much your father
made at the time * was killed? ;
A. Yes, sir; from $115 to $135,
6—491
ij
PS O>POo>ropeopeore
©
>
42 SEABOARD AIR LINE RAILWAY VS.
Q. That is a good sum of money for a switehman to make?
A. He was not altogether a switchman; he was yardmaster and
yard conductor.
Q. Didn’t take a picture of a good long view of those walks?
A. I did take a picture of that.
Q. Where is that?
A. That did not turn out to be good. I took five altogether.
Q. You say these pictures are absolutely accurate?
. Yes, sir.
Q. How did you make these so good and not the others?
A. I think was a little confusion there, people telling me which
way to take that and how.
J. G. Hauck (white), sworn, says:
Q. Do you live in Columbia?
A. I do.
Q. Were you living here June, last year?
A. I was.
Q. Do you remember about the time Mr. Koennecke is said to
have been killed at Cayce?
A. Yes, sir.
Q. Did you go there and look over the yard a*day or so after
the killing?
. I went there 18th June,
. That was just after Mr. Koennecke was killed?
Yes, sir.
Who did you go with?
Mr. Monteith and Mr. George Rembert.
Did you go crossing the Seaboard?
& I did.
OPeore>
on
©
Q. State whether or not you saw the place where there was
some blood?
A. Yes, sir.
Q. Do you know what track that was on?
A. No. 4.
Q. Tell the jury what was the condition of the space or walkway
between 3 and 4 and between the other tracks around and in the
vicinity of the place or location where you saw blood on the track?
A. I went there to inspect the track ; I got on track 4, or between 4
and 5, and between 3 and 4 was big piles of clinkers and cinders, and
old irons, such asdraw pins, coupling pins and clinkers, piled in some
laces that high (indicating), some so, some a little higher; looked
ike the road had thrown them down there and left them there.
Q. Just carried by a flatear and dumped them off?
A. Yes, sir.
Q. What do you mean by clinkers?
A. Been burned in the engine.
Q. Around there was the condition soft or hard?
A. Big hard clinkers; some places some of it was soft.
Q. Some places sharp and would cut you?
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 43
A. Yes, sir; man could not walk in that place, would have to stop,
would have to jump over different places.
Q. Something like jumping logs?
A. Yes, sir.
You went there for the purpose of being a witness?
- No, sir; to inspect the track,
You went with Mr. Rembert and Mr. Monteith?
. I went ahead of them first, next day with them.
Pe at their request?
di
You went there 18th June?
es, sir.
Q. Did you find any piles of clinkers?
A. Yes, sir, between 3 and 4 and 4 and 5.
Q. Are you able to swear when these clinkers were put there?
A. No, sir, but looked — they had been there some time. IT can
swear one man working there told me he had
>POPO>o>e
60 Mr. Lyxes: I object. The witness must only testify what
he knows.
The Courr: Do not state what somebody else told you.
Cross-examination by Mr. Lyizs:
Q. Are you willing to swear that the clinkers were there any
length of time?
A. I could swear they were there two or three weeks ahead of that
from the looks of them,
Q. How many piles?
A. They were maybe 200 or 300 on each side.
Q. Do you know where Mr. Koennecke was standing or walking
before he was killed?
A. No, sir; I know where the blood was. I know where he was
hit from the way he was dra ,
Q. Do you know what he had been doing, do you know?
A. No,
Mrs. R. B. Watson (white), sworn, says:
Q. Are you a daughter of Mr. J. T. Koennecke?
A. Yes.
Q. Your husband is Mr, Stanmore Watson?
A. Yes.
Q. You married some time prior to your father’s death?
A. Five years.
Q. Sg were not dependent upon your father?
A. No.
Q. You make no claim in this case?
A. None whatever.
No cross-examination.
SEABOARD AIR LINE RAILWAY VS.
Miss Ep1ra May Korennecke (white), sworn, says:
Mr. MonvreITa:
Q. Are you a daughter of J. T. Koennecke?
A. Yes, sir.
Q. How old are you?
A. 24.
Q. Have you always lived at home?
A. Yes.
Q. Were you living at home at the time of your father’s death?
“0 A. Yes.
61 Q. You, of course, are single?
A. Yes.
Q. Your father supported you?
A. He did.
Q. Have you any other means of support at all?
A. None whatever.
Q. Are you working out anywhere at all?
A. No.
Q. Are you working anywhere now?
A. No.
Q. You have no other source of income, but what your father gave
you?
A. None whatever.
Cross-examination :
Q. How old was your father at the time of his death?
A. About 51 or 52.
Q. Fifty-two is correct?
A. I think so.
GrorGe KoENNECKE (white), sworn, says:
Mr. Monvreiru:
Are you a son of Mr. J. T. Koennecke?
Yes, sir.
Do you live at home?
. Yes, sir.
Always lived at home?
. Yes, sir.
ng you living there when your father was killed?
es, sir.
Are you workin anywhere?
. Work with the Tealh Company.
Are you going to school?
Yes, sir; night school.
Have you any source of income?
$2.00 per week.
That you made at The Record?
. Yes, sir.
POPOPOPOP>OPrOPore
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 45
- Where were you working at the time your father died?
Carrying route, Columbia Record.
Are you carrying it now?
No, sir.
Where are you working now?
. The Record.
Q. How long have you been carrying the paper?
A. About three weeks,
62 Q. In the summer months?
A. Yes, sir; during the summer months.
Q. The amount you made carrying The Record, is that sufficient
for your support?
. No, sir.
You stay at home, and get your meals furnished you?
Yes, sir.
Do you pay any board?
No, sir.
Your father gave you the money to buy your clothes?
Yes, sir.
Gave you pocket money from time to time?
Yes, sir.
>o
>O>O
POPOPOPOp>
Cross-examination :
What is your name?
. George Allen Keonnecke.
How old are you?
. Seventeen years old.
When were you 17?
. March 24, 1914.
>OPO>oO
GrorGe KoENNECKE, recalled.
Mr. Coss:
Q. You say you have been going to school this winter?
A. No, sir; been working all winter.
Q. Since your father’s death?
A. Yes, sir.
Q. Why have you been working since your father’s death and not
going to school?
A. Mother needed my support.
Q. And you needed it yourself?
A. Yes, sir.
Mrs. J. T. KozNNecKE (white), sworn, SAYS :
Mr. TompxIns:
Q. What relation do you bear to the late J. T. Koennecke?
A. I was his wife.
Q. How many children have you?
A. Four.
Q. Name those children?
46 SEABOARD AIR LINE RAILWAY YS,
A. Mrs. Rosalie Watson, Edith May Koennecke, George Koen-
necke, Joe Koennecke.
Q. Are they the ones that have testified?
. Yes, sir.
What is the age of Miss Edith Koennecke?
. 24 years old.
And George Koennecke’s age?
. 17, 24th last March.
Those are the children of Mr. Koennecke?
Yes, sir.
You were only married once?
Yes, sir.
You have been duly-appointed administratrix of this estate?
Yes, sir.
Where was Mr. Koennecke working at the time of his death?
. Seaboard, at Cayce.
Do you know what position he held there?
- He first went there, was yardmaster; sent over there for him,
he was yardmaster then; then he became yard conductor. Summer
business got light, he was a new man, and accepted position of
switchman during summer months.
Q. How much did he make at the time of his death?
A. From $125 to $135.
- Q. How are they paid, by the hour?
Fe A. Yes, sir, by og hour. He made dinner and supper hour
ways.
Q. During the time he was acting yardmaster, and the other posi-
tion, did he get the same pay this time or more?
Mr. Lytes: We object; don’t think that is relevant,
The Court: You ought to be able to get out of the witness what
salary her husband was gettin
Mr. Lyues: She has testified he was getting from $125 to $135.
Wirness: Some months he made more.
Mr. Tompxins: When did you first learn of your husband’s
death ?
fon)
(o~)
OPOPOPorerere
>
A. About 10:30 at night,
Q. The day he was killed?
A. Yes, sir.
Q. What time of day did Mr. Koennecke work at the Seaboard?
A. He worked at =
Q. What time at night, from what hours?
A. He generally left home every afternoon, had to catch
64 the engine to take him, had to take the engine every after-
noon six o’clock.
«Rid parg was he the day he was killed, before he went to his
wor.
A. He was at home; he slept all day, to get up 5 o’clock.
Q Do you recall the day he was killed? r
A. It was the 13th of June, 18, on Friday.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 47
Q. Now, Mrs. Koennecke, about how much money did Mr. Koen-
necke contribute to yourself and your children’s support?
A. He gave me his salary every month, except a few dollars; part
we took and divided among the children, pin money, that was regu-
lar every month.
Q. Those two children lived with you all?
A. Yes, sir.
Q. And ate at the family board?
A. Yes, sir.
Q. He had to pay for their clothes and schooling out of this
money ?
A. Yes, everything.
Q. Was Mr. Koennecke possessed of any other property?
A. No, sir.
Q. Was your minor son going to school at that time?
A. Yes, sir; he was very anxious for his education.
Q. What is he doing now?
A. Right now, working for The Record. I had to take him from
school and put him to work,
Q. How old was Mr. Koennecke when he died?
A. 51. ,
Q. What state of health was he in?
A. Excellent health; he never was sick.
Q. Have you and your family any other means of support outside
of his salary?
A. None in the world.
Q. His health, you say, was good?
A. Yes, sir.
Cross-examination :
Q. Wasn’t Mr. Koennecke 52?
A. No, sir, 51.
Q. He had to pay for his clothes out of the money he made?
A. I got everything; he turned over his salary to me; I bought
everything for the house that was needed.
65 Q. You bought his clothes for him?
. Yes, sir. I had them sent to the house and he taken
his choice of the clothes.
welf The money he gave you, some of it had to go to clothe him-
A. Yes, sir.
Q. Your husband worked for a short time with the Southern?
A. Yes, sir; long time.
Q. He was engaged while with the Southern in the service of
switchman ?
A. Yard conductor.
2 i was engaged in yard service?
. Yes, sir.
Q. He didn’t go out on runs?
A. Sometimes he would go as far as Dent's.
48 SEABOARD AIR LINE RAILWAY VS.
Q. But his ordinary work with the Southern was yard conductor
or switchman?
. He never switched for the Southern; he was yard conductor.
. He went to work with the Seaboard about the Ist of February?
A. Yes, sir; he worked there seven months.
. While there he was engaged in yard work?
. Yes, sir.
3 charge of yard engine, or worked with engine crew?
es,
Switch work?
. When he died he was switching.
He had been there from about the 1st of February?
Yes, sir; worked there seven months.
. Your husband—was there anything wrong with Mr. Koen-
e’s eyesight?
. No, sir; had good eyesight.
Anything wrong with his hearing?
No, sir; he had good hearing.
He was an active man?
Yes, sir.
In good health?
Yes, sir.
Good eyes and good ears?
Yes, sir.
(Rules 545, 547 offered in evidence.)
o,
LOPS >OPOPe
nec
POPOPOPO>
66 After Recess.
Mrs. KomeNNECKE, recalled.
Mr. ToMPKINS:
Q. Did you go over to Cayce to inspect the spot on track 4, where
your husband was killed?
A. Yes, sir; we went over there the day after the funeral.
Q. Who went with you?
A. Mrs. Robert Campbell, and all the children, and Mr. Koen-
necke’s brother and myself.
Q. Did you locate the spot?
A. Yes, sir; it was marked with chalk, cross mark.
Q. Did you see any blood?
A. Yes, sir; spot of blood one end and that much at the other end.
Q. Fresh blood?
A. Yes, sir.
Q. What was the condition of the space between the tracks at that
point at that time?
A. It looked like as if they had been filling, didn’t level it off, left
it there, was a deep hole that deep and there was a pile of clinkers
where not level, some filled up, some not.
Q. What kind of substances was those clinkers?
A. Anything; old pieces of iron.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC, 49
Mr. Tompkins: State whether or not your husband was accus-
tomed to give his children fatherly advice?
A. Yes, sir.
Q. And assisted them in their education?
A. Yes, sir, he did.
Cross-examination by Mr. Lyugs:
Q. I do not know whether I asked you how many years your
husband had worked with the Southern?
A. I don’t know the number of years.
Q. Eight, ten or fifteen?
A. As far as | remember; we have been here, I do not know ex-
actly, over 13 years, maybe 14 or 15 years. He had been
67 working all the time for the Southern Railway until he went
to the Seaboard, and was off one month from the Southern.
Q. You know Mr. Koennecke was discharged by the Southern?
A. I heard he was,
Mr. Tompxins:
Q. What is your age?
A. I will be 46 years old 1st of June.
Q. You are in good health?
A. Yes, sir.
Mr. Tompkins: We offer Rule 102; we have already offered 545
and 547 in the same Rule Book.
Mr. Lyxes: We object to that; not applicable to the case,
Mr. Tompxkuys: The testimony was that the tender was in front
of the engine, and the engine was pulling a string of cars. I think
that rule applies.
Mr. Lyies: My objection is there is no evidence in this case of
any cars being pushed by the engine. So far as the contention that
it was a car, it has been expressly decided by the United States Su-
preme Court that a tender is not a car.
Mr. Tompkins: I withdraw the question if he takes that position.
Mr. Lyzes: I just take the legal position.
a Tompkins: Under the head of Yardmaster, I will read Rule
545:
“They will see that no yard engineman, yard conductor or yard
brakeman is allowed to work in the yards under their control after
a new time table is in effect until he has been supplied with and has
receipted for a copy thereof.”
Rule 547: “They must see that their yards are kept in good order,
that scrap and other material scattered upon the ground are promptly
collected and stored, and that nothing is allowed to remain upon or
between the tracks that involves risk to property or persons,”
68 It is stipulated that the Rule Book from which these rules
7—491
50 SEABOARD AIR LINE RAILWAY VS.
Under this time table which we have introduced and is referred
to in that rule, which controls the running of cars:
“Sec. U. Cars will not be moved in front of engine, or engine
moved backward, unless there is an employee on the front of the
moving car, or on the rear of the engine, to keep a lookout, in the
direction the movement is being made, to avoid striking persons or
obstructions on track. Enginemen as well as conductors will be
held responsible for violation of this rule.”
jhe above and foregoing Rule U was taken from a pamphlet
entitled:
“Seaboard Air Line Railway,
South Carolina Division,
between
Columbia and Savannah, Savannah and Jacksonville,
Jacksonville and River Junction (and Branches).
Time Table No. 2.
Taking Effect at 12:01 P. M. Sunday, April 27, 1913.
Superseding Time Table No. 1, Dated Jan’y 5th, 1913.
For the Government of Employees Only. |
Not Intended for the Information of the Public, nor as an adver-
tisement of the Time of Trains. The Company reserves the right
to vary therefrom as Circumstances may require.
69 Central Standard Time.
H. W. Stanley, Assistant General Manager.
C. E. Hix, Superintendent Transportation.
H. W. Purvis, Superintendent.”
And is found on the page of said pamphlet entitled “General
Instructions.”
It is agreed that Time Table containing Rule U. may be ex-
hibited by either party in the Supreme Court and filed as an exhibit
in this case.
We offer in evidence mortuary table which. appears in the Code
of 1912, Vol. I, Sec. 4014. We offer in evidence this section:
“Tn all civil actions or other modes of litigation whenever it shall
be necessary to establish the expectancy of continued life of any
- person from any period of such person’s life, whether he be living
at the time or not, the table hereto appended shall be received in all
courts and by all persons having power to determine litigation as
evidence, with other evidence as to health, constitution and habits
of such persons of such expectancy represented by the figures in the
columns headed by the words completed age and expectation re-
spectively.”
The completed age here, according to the testimony, is 51; the
expectancy is 20 years and 20-100.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 51
We have one other witness as to the condition of the grounds
which will probably be similar in a way to the testimony of Mrs.
Koennecke. She lives in the country and has not yet arrived, other-
wise we are ready to close the case for the plaintiff.
The Courr: That probably would be accumulative on that point.
Mr. Tompkins: We will close with the privilege of putting her
up as soon as she comes in.
70 Mr. Lyzes: I do not like the continuity of my evidence
broken into.
Mr. Tompkins: We have sent for the other witness; we are
anxious to get on with the case. We will not ask the Court to wait
longer. We will close the case for the plaintiff. We put in the Rule
Book and Time Table.
Mr. Ly.es: I do not understand any rule has been put in evi-
dence except what was read.
Mr. Tompkins: We introduce the whole Time Table in evidence.
We read Rule U to the jury. Any point that may be made, we
will read such parts as may be necessary.
Mr. Lyzezs: I object to that.
Mr. Tompkins: We will rest on the Record on that.
The Court: I think we understand what is in evidence.
Mr, Lyzes: T understand the plaintiff has closed.
The Courr: Yes, sir.
Mr. Lyzes: Before I proceed with my case, your Honor has, over
my objection, amended this complaint, and has forced me to trial
on the statement I was not ready to meet one of the most material
issues in the case. I do not know what sort of pleadings we have
in that complaint. I have been engaged in the trial since the amend-
ment was allowed; I do not know where I stand. To be fair, I do
not wish to do anything in any way to amount to a waiver of the
position I took. T think it up to your Honor to inform me what
my pleadings are. The complaint has been amended, and nothing
said about the answer.
The Courr: As I stated in the outset, I think this complaint
was intended to be drawn under Campbell’s Act passed upon our
State statute. The testimony developed in the course of the trial
that this man at the time was engaged in interstate business. This
-Act of Congress is a somewhat anomalous law; it breaks in on the
State law. Suppose a case were to arike where it would be a disputed
question as to whether or not the party was engaged in
71 interstate business. Of course United States Court judges
have more latitude about passing on a question of fact, and
if that should happen the judge would have to charge the jury both
laws, State and Federal, and allow them to find the fact, which law
applied. That, of course, does not arise in this case. I am going
to tell the jury, the question of punitive damages, inasmuch as
they have amended the complaint, I will tell the jury the question
of punitive damages is eliminated; and also based on the law of
negligence; if they should find for the plaintiff, all they could find
would be for three of the parties, and they would have to proportion
it out between them as to what they were entitled to.
52 SEABOARD AIR LINE RAILWAY VS.
You set up a general denial, that would go to the question of
' defeating any recovery, if the jury are not satisfied
Mr. Lys: I am not admitting the plaintiff’s case, that this man
was engaged in interstate commerce.
The Courr: The only difference would be on your defense, on
the question of contributory negligence. That question might arise
in this case. If the jury were to find that both parties were negli-
gent, and that the negligence of both co-operated together, com-
bined, as the proximate cause of his death, then they should only
give half damages,—in other words, to mitigate it to the extent of
culpability of the parties. That is what I understand the law to
mean; and on the question of the assumption of risk, common law
rule applies, and I will charge that, it is a contracural relation be-
tween the parties, and if his work there was the ordinary risk inci-
dent to his employment, then, of course, he contracted and assumed
that risk; he did not contract and assume any negligence; I will
charge the jury that; I will tell the jury in the outset that before
they can find anything against you at all, Mr. Lyles, they would
have to find, by the preponderance of the evidence, that the defend-
ant was guilty of negligence; if they were to conclude that the
plaintiff has not made out the case by the preponderance of
72 the evidence on that issue, then they would stop right there
and find a verdict for the defense.
Mr. Lyzes: Before you get to that. Your Honor has allowed
them to amend the complaint——
The Courr: So far as that is concerned, he is bound by it.
Mr. Lyuzs: I deny these allegations.
The Court: I know you do. You have the right to have them
proved. I do not know a case like this. Suppose a disputed ques-
tion of fact arose, I could not pass on that, then I would have to
charge the law both ways; how else would you do it?
Mr. Lytes: Got to take one horn of the dilemma, can’t grab
both; can’t consider the State law and switch to the Federal law.
Mr. Tompkins: We deny that that has to be met when the case
is closed.
The Court: Mr. Lyles takes this position: if it were to turn out,
if the jury were to find, if the jury were to conclude your man was
not engaged in interstate business at the time, then they would
find for the defendant. I reckon that is true.
Mr. Tompkins: When the case is over and the evidence is all in
the Court is not supposed to try the case to meet captious objections
and. technicalities of the attorney.
The Court: I think that is right, for this reason: there has been
a lot of litigation over this matter in the Supreme Court of the
United States, not altogether clear about it. I think, analogous to
the case cited, they allowed the beneficiaries to bring suit themselves;
in that case they did bring suit under the State law, and the bene-
ficiaries joined in the suit against the railroad, the doctrine of fel-
low servant applied in that State, and they lost the case, the jury
found a verdict for the defendant; they carried it to the Supreme
Court of the State of Pennsylvania, and that verdict was sustained.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 58
Then after that they brought suit in the State Court, per-
73 sonal representative, alleging this matter fell under the Lia-
bility Act; the railroad said, but you have had one trial of
this case, you had your beneficiaries come in and bring this suit,
now you have got the administrator bringing the suit under the
Liability Act; the rdilroad said that the party is barred; the State
Court held it was, the Supreme Court of Pennsylvania held it was,
and it went to the Supreme Court of the United States, they held it
was not barred. In analogy to thai, if the jury were to find this man
was engaged in intrastate business instead of interstate business they
would have to find a verdict for the defendant: that would not pre-
vent you, I presume,—not passing an opinion on that—bringing
the case over under Campbell’s Act—I will not express an opinion
on that, but it seems to me that would be right, I am not saying
you could or not.
T am rather inclined to think this a complicated matter. I am
inclined to think that I will have to charge, if they were to find
as a matter of fact that this party was engaged in intrastate business
they would find, under the pleadings now amended, they would
have to find a verdict for the defendant.
I think under the Pennsylvania case—you see what the Supreme
Court of the United States did in that case.
Mr. Tompkins: If he took the position
The Courr: Under that case, if you were to base your case on the
principle that this was interstate business, that this man at the time
was engaged in interstate business, and they deny it—which they do
deny—it follows if the jury were to find against you on that—lI
think you can bring suit over—but I am not expressing an opinion
on that. This is a very complicated matter.
74 Defendant.
W. S. Benton (white), sworn, says:
The Court: If he denies, which he does, that this man was en-
gaged in interstate business I would have to charge the jury, if they
found that was not so, they would have to find a verdict for the de-
fendant, and what you could do after, I am not saying.
Pan 5 TomPxKins: Suppose he claims something which we will
admit?
The Court: Your witness on the stand this morning testified, as I
understand, that this man at the time was engaged in shifting cars,
to make up the train that way, going beyond the limit of the State.
If that is so, under a recent case, where they held, a man going
down and taking down the numbers as well as the cars, that he was
engaged in interstate business: the Supreme Court of the United
States extended it as far as they could. Tf that is so this man
would be engaged in interstate commerce.
Mr. Tompxrns: Let’s cross that bridge when we get to it.
The Courr: He denies your complaint.
54 SEABOARD AIR LINE RAILWAY VS.
Mr. Lyzzs:
Q. You are an employee of the Seaboard?
A. Yes, sir.
Q. Qn the night Mr. Koennecke was killed, June 13, 1913, you
were engineer of 423?
A. Yes, sir; I was.
Q. Well, now, will you start and tell the jury all you did with
nigh - the time you left Columbia until you got in Cayce that
night
A. We left Columbia with about 20 cars.
Q. What was the position of those cars?
A. We were pulling cars, running backwards.
Q. The engine was running backwards?
A. Yes, sir.
Q. You went across to Cayce?
A. Yes, sir.
75 Q. What was the first stop you made?
A. I think we went all the way to the yard, first stop was
north switch at Cayce.
Q. Was that the point where you left the main line?
A. Yes, sir.
Q. How far north of the yardmaster’s office would you say
that is?
A. About 10 or 12 car lengths.
Q. Now, Mr. Benton, who was your crew on that engine that
night? ;
. Mr. Hunt was conductor, Sellers and Hamlet were brakemen.
Who was the fireman?
Gibson.
Where is he?
Dead now.
Was he a colored man?
Yes, sir.
. As you left the main line and went up into the yard do you
know where Hamlet was?
A. I left the main line and went in the yard, he was on the back
step.
& In front of the engine——?
A. Either he or Sellers.
Mr. Tompxins: Do not lead; he has not said that. Leadin
question on a material point. :
Mr. Lyxes: State whether or not when you went into the yard
there was any one on the footboard with the engine?
A. There was.
Q. Who was it?
A. I think Hamlet, I will not be sure.
Q. Was Mr. Hamlet one of the switchmen of that engine?
A. Next to the conductor.
Q. Was Hamlet a switchman on that engine?
A. Yes, sir.
OPOPO>ro>
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 55
Q. And Gibson was fireman?
A. Yes, sir.
Q. As you went into track 4—did you stop before going in 4?
A. Yes, sir.
Q. For what reason?
A. Switchman got off the engine to throw the switch.
Q. Do you know where 419 was as you went in track 4?
A. We stopped about the crossing. I think he came out
76 with a cab taking it back to some other track, we stopped
until he got out of the way and we pulled back in.
Q. You pulled in, where was 419?
A. I think standing on 3.
Q. Was that standing still?
A. Yes, sir; he went back and stopped until we pulled by.
Q. That was standing stil]?
A. Yes, sir.
Q. Do you know whether that was the engine with which Mr.
Koennecke was connected?
A. Yes, sir.
Q. Was another engine on that track 3?
A. No. 77.
Q. Where was that standing—was a headlight on that?
A. Yes, sir; electric headlight.
; 9g As you went over there were headlights on your engine burn-
ing
A. Yes, sir.
Q. How many headlights did you have?
A. Two, one on each end.
Q. Was the one on the back end of the engine in the direction
in which it was going?
A. Yes, sir.
Q. Was that headlight burning?
A. Yes, sir.
Q. Are you positive of that?
A. I know it was burning.
Q. What was your speed as you went past 419?
A. Between 4 and 6 miles an hour.
Q. Did you see anybody there?
A. No, sir; I did not.
Q. As you passed over the crossing south of where this thing
happened, what was your fireman, Gibson, doing?
A. Ringing the bell.
Q. What did he do after that?
A. He got down, began age
Q. Just explain to the jury what you mean by his getting down?
A. He got off the seat from which he was ringing the bell, he
ste down, quit ringing the bell and began to fire.
& Where aid that put him with reference to the tender and cab
on the engine?
A. He could not see at all, he could not, outside, then.
77 Q. Tell us what was the movement of the train as you
passed track 4 opposite 419?
56 SEABOARD AIR LINE RAILWAY VS.
A. Backed on in and stopped as soon as got in the clear.
Q. What did you do?
A. Cut the engine off, went back to the other end this track, and
came through 2—one and two.
Q. Where did you first hear Mr. Koennecke was killea?
A. About ten minutes after.
Q. As you were passing—did you afterwards see the point at
which he was struck?
A. Yes, sir.
Q. As you were passing along by train that was coming with 419,
did you hear any warning from anybody?
A. No, sir; somebody signed me down and told me somebody
was caught up under the car.
Was that while you were on track 4?
After I left track 4.
When you passed over it?
Did not hear a thing.
Did you know you had run over Mr. Koennecke?
No, sir; not until ten minutes after.
Your fireman is dead?
A. Yes, sir.
Q. Are you familiar with Rule U in the time table?
A. Yes, sir.
Q. Tell us whether that rule applied to a switch engine when in
the yard and off the main line?
A. Does not.
Q. Any requirement in the rule that there should be any one on
the rear of a switch engine?
A. Not in the yard.
Q. State whether or not there was some one on the rear of your
switch engine until you cleared the main line?
A. Was.
Q. How long had you known Mr. Koennecke?
A. I did not know him personally; I knew him when I saw him.
Q. He had been working there some time as a switchman?
A. He had.
ePerere
Q. You know the point at which Mr. Koennecke is said to have
been killed?
A. Yes, sir.
78 Q. What was the condition of the walkway there?
A. Smooth outside the track, but between the tracks, wasn’t
dirt between the tracks. _
Q. You mean the crossties were exposed?
A. Yes, sir; but the walkway between 3 and 4, it was smooth.
Cross-examination by Mr. TOMPKINS:
Q. You pulled out from there the next day; you ran into that
yard the next day?
A. No, sir.
Q Where were you the next day?
A. I was running at night.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 57
Q. You were there the next night?
A. No, sir.
Q. Where were you?
A. I was relieved. I was at Hamlet the next night.
Q. Did you stay here that night after the man was killed?
A. Yes, sir; I finished work at night.
Q. Where was that run?
A. Supposed to run at Hamlet; been running between Hamlet
and Monroe.
Q. Where was your run when you ran over this gentleman?
A. I was running that yard engine. I am supposed to be on the
main line; that night didn’t have anybody to run and called me;
didn’t have anybody to run the yard engine that night and I was
called for it.
Q. What did you do after this gentleman was killed?
A. Finished working the balance of the night.
Q. What?
A. What we had been doing before then.
Q. What was that?
A. Switching cars between here and Cayce.
Q. You were carrying cars over to Cayce and bringing them
back?
A. Yes, sir.
Q. Did you switch any cars in that yard and leave them?
A. Leave them there and bring what was to come back here.
Q. You were running the engine which was transferring cars
from Columbia yard to the Cayce yard?
A. Yes, sir.
79 Q. What time did you knock off that night?
A. Next morning at 7 o’clock.
Q. Wasn’t that what was called in railroad circles an extended
movement, Columbia to Cayce?
A. Yes, sir.
Q. That is what you were making?
A. I reckon so.
Q. This Time Table Rule U, and these rules in the Rule Book
applies to all extended movements?
A. These in the yard limits between here and Cayce.
Q. Answer the question. Don’t this rule govern you in all ex-
tended mavennnunlt
A. Except in yards.
Q. Can you have an extended movement in the yard?
A. I do not see how you could.
Q. Now, Mr. Benton, you say your fireman was on the footboard
of your engine?
. No, sir.
Q. What did you say?
A. I don’t mean the fireman. *
Q. Your switchman?
A. Yes, sir.
Q. Where was the footboard?
8—491
SEABOARD AIR LINE RAILWAY VS.
A. One on the front end and one on the back end.
Q. On the back of the tender?
A. Yes, sir. He was on the one back of the tender.
Q. Where mga off there? :
A. After he the crossing at Cayce, public crossing.
Q. Where did he go then?
A. He got on. He ran back behind the engine until came to the
switch and came in 4, and he changed and got on top of the car.
ne - Barker, when he said that he threw that switch, was mis-
en
A. I do not know who threw the switch.
Q. Mr. Barker testified he opened that switch up after you came
in there?
A. I don’t know who opened it up.
Q. Are you sure that the man got off there?
A. Yes, sir.
Q. At the time he got off there your car was on the main line?
A. One end was.
Q. How long did your car ytay in 4?
A. I don’t know.
Q. You unhitched your engine there and left it there?
A. Yes, sir.
80 Q. What did you do with the engine?
A. Went through the yard and came up through another
track.
Q. And got other freight cars?
A. Yes, sir.
Q. And went back to Columbia?
A. Yes, sir.
Q. Look at these photographs. Do you deny that this photograph
correctly represents the condition of that yard at that time?
A. I don’t know whether it does or not.
Q. Looks like it?
A. I cannot tell. “
Q. Were there not clinkers around on the ground like shown in
the photograph?
A. I don’t know; that was taken five or six days after.
Q. Will you swear these clinkers weren’t over that ground as
represented in that photograph on the night you ran over the man;
vill you swear they were not as represented on this?
A. No, sir. ;
Q. Were you working over there the next day or night?
A. No, sir.
Q. Clinkers are pretty hard things to walk on?
A. Yes, sir, pretty hard.
Q. Cut your shoes?
A. Yes, sir.
Q. Cut your foot? ?
A. I expect so.
Q. Throw you down?
A. Might.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 59
Q. Fall down, hit your nose, liable to cut you?
A. Yes, sir.
Q. Sharp, hard substance?
A. Yes, sir.
Q. Now, there was plenty of light on the track back of your
engine as you were mullite down the track?
A. My headlight was shining back there.
Q. That you had on the back of the tender?
Yes, sir.
Q. Describe’ what a tender is?
A. A tender is to carry coal and water in.
Q. Hitched on to the engine?
A. Yes, sir.
Q. How long is it?
A. About thirty feet.
Q. Could you see the back end of your tender; could you
81 see a man standing on the back end of your tender?
A. Yes, sir.
Q. While you were at your post?
A. Yes, sir. Those are sloped.
Q. Could you look over the window down the track?
ye pom? § see within a car length the back of.the tank.
Q. You say your fireman was down putting coal in the engine?
A. Yes, sir.
Q. And your switchman got off before you got to that switch and
got on top of the car?
Yes, sir. °
Q. Was no one on the back end of that tender from the time you
left the main line or he got off to throw the switch until you stopped
your train on track 4?
No, sir.
Q. Why are you so sure your light was burning?
A. I saw it burning before I went in the track, and it was burning
when I came back.
Q. You could not see?
A. I can sit on the engine and tell whether burning or not.
a— say you found Mr. Koennecke there about ten minutes
ter
A. Yes, sir.
Q. How many cars had over him?
A. About ten, seven, eight or ten.
Q. What length were those car boxes?
A. Run from 34 to 40 feet.
Redirect examination:
Q. That engine 423, explain what sort of engine that was?
Was an engine, got a space on both ends,
Q. How about the tender of that engine?
A. Low tender, to see off the back, so can see anything behind
you. .
60 SEABOARD AIR LINE RAILWAY VS.
. As you were coming in track 4, you said your engine was back-
ing
A. Yes, sir.
Q. On which side of the engine were you sitting?
A. Right side.
82 Q. Could you from your seat on the right hand see a man
standing over next to your engine toward track 3?
A. Yes, sir; I could see him if he was standing on the ground.
Q. Suppose he was standing near the engine, could you see?
A. If right at the engine I could not see him.
Q. If a man stepped in front of your engine from direction of
track 3, could you see him before the engine struck him?
A. No, sir.
Mr. Tompkins: What kind of light — you have?
A. Oil lights.
Q. Both ends?
A. Both ends.
J. C. Hunr (white), sworn, says:
Mr. LYLEzs:
Q. What is your present position?
A. Yard conductor, Seaboard.
Q. On the night of June 13, 1913, when Mr. Koennecke came to
his death, what was your position?
A. Yard conductor.
Q. What engine — you have charge of?
A. Engine 423.
Q. Who was your engineer?
A. Mr. Benton; Fireman Gibson; Hamlet and Sellers switchmen.
Q. Did you come over with the engine from Columbia to Cayce?
A. Yes, sir.
Q. Do you know the position of the men on that engine in mak-
ing the trip over there?
A. Hamlet and myself rode the engine over there, Sellers rode to
ay ’
. How was the engine going?
A. Running backwards. “5
Q. Where were the cars?
A. Ahead of the engine, the ones was pulling the cars.
Q. The engine was running south?
A. Yes, sir.
Q. What was the gona of Hamlet on that engine?
A. To the best of my knowledge and recollection Hamlet rode
back of the engine until we started to back into the yard;
83 near the yard office Hamlet got off the engine. I got off my-
self, too, to deliver the stuff and waybills.
Q. State whether or not by the position you located, was that in
front of the engine, the way it was running?
A. Yes, sir.
Q. Where did you leave the main line?
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 6)
A. At the north switch.
Q. How far north of the yardmaster’s office?
‘A. About 10 or 12 cars.
Q. At the time Mr. Hamlet got off the engine had you left the
main line?
A. Yes, sir.
Q. Were headlights on the engine—what sort of engine was that?
A. Standard switch engine, with headlights on both ends.
Q. How about the tender, with reference to the size of it as com-
pared with the tender of the road engine?
A. The regular-switch engine has a round tank to enable the en-
gineer and fireman to see over the tank on the track, and not as high
as the road engine tank.
Q. Are you positive both headlights were burning that night?
A. Yes, sir.
Q. Have you any reason to particularly impress that on you?
A. Not any particular reason, only that is is customary.
Q. Have you any trouble with headlights on this engine?
A. That was my regular engine. I had trouble a week or two
before that; we got new reflectors for the headlights.
Q. Were they in there that night?
A. Yes, sir.
Q. Had been put in before that?
A. Yes, sir; about two days before this occurred when we got new
reflectors.
2 Tell the jury where the headlights on the tender of that engine
are
A. Set about middle way of the track.
Q. What sort of light?
A. Oil light.
Q. Does that give a lot of light?
- Some give more light than others; when they are in
84 good shape, good lights; you can see an object, can see a car
further than from here to the front door.
Q. Was in good shape that night?
A. Yes, sir, they were.
Q. When you left the main line and went up to go in track 4, do
you know what was the position of engine 419?
A. Was in the clear, on No. 3.
Q. What direction was it facing?
A. North. It came out with cars behind it.
Q. Was it standing still until your train, 423, passed by and got
in track 4?
A. I presume it was standing still.
Mr. TompxKins: We object.
Mr. Lyies: Was any other engine on track 3 to the south?
A. I learned afterwards——
Mr. Tompxins: We object.
The Court: Just what you know.
62 SEABOARD AIR LINE RAILWAY VS.
Mr. Lytes: What was the speed of that engine as you passed in
track 4 and along train 419?
A. Speed of 423 seemed to me four or five miles an hour.
Q. Did you know Mr. Koennecke?
A. Yes, sir.
Q. How long had you known him?
A. About ten years.
Q. Did you have anything to do with his coming to work for the
Seaboard ?
A. Yes, sir.
Q. When did he come over there?
A. It was the latter part of January, as well as I remember.
Q. 1913?
A. Yes, sir.
Q. From that time on until the time he came to his death was he
employed in switching service?
A. First night yardmaster, from that to yard conductor, and then
to switchman.
Q. Night yardmaster and night yard conductor, they have to cross
the tracks?
A. Yes, sir. He has to cross tracks often in the discharge of, in
the ner of yardmaster.
Q. The duty of a switchman, did that take him up and down the
tracks a great deal?
. Yes, sir,
Q. How often would he pass track- 3 and 4?
A. Every night; some nights he would pass oftener than
others.
85 Q. Would he pass over each one of those tracks several
times every night?
A. He possibly would.
Q. How long have you had éxperience in yard service?
A. About twelve years.
Q. Are you familiar with the manner in which walkways should
be fixed so as to be safe to employees?
A. I think so.
Q. Anything wrong with the walkway between 3 and 4?
A. I don’t know exactly the condition at this place.
Q. Was the yard there in the same condjtion it had been in since
Mr. Koennecke—— ;
A. I guess in better condition than it had been, they were trying
to improve it.
Q. It was in no worse condition?
A. No, sir. j
Q. Mr. Koennecke had considerable experience in yard service?
A. Yes, sir.
Q. Are you familiar with that Ru'e U in the time table?
A. Yes, sir. ;
Q. Does that apply to switch engine in yard service after it left
the main line? ‘
A. No, sir, I did not take it that way.
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 63
Q. Is there any rule, custom or requirement that any switch en-
gine that is backing in the yard, after leaving the main line, that
there ayes be a man on the front end of it as it backs?
O, sir.
. Did you have a man there?
No, sir.
You do not know the exact location of engine 77?
No, sir; do not know the exact location of it.
Do you know whether the engine entered with a headlight?
After we pulled in,—when 419——
Did that engine have an electric light on it?
Yes, sir.
What direction was that engine headed?
North.
That was in the direction Mr. Koennecke was killed?
Yes, sir.
Q. Did you notice whether that headlight on 77 was lighting
up the ground along there where Mr. Koennecke is supposed
86 to have been killed, was it lighting up along there?
A. I don’t know.
PEPOPOoPOoPoror
Cross-examination by Mr. TompxKIns:
Q. You differ with Mr. Benton about where Mr. Hamlet got off?
A. I don’t know whether I differ from him or not. He got off
somewhere about the yard office,
Q. Didn’t you tell Mr. Lyles he got off after the train had headed
into the switch? *
A. Yes, sir.
Q. You heard Mr. Benton say he got off and threw the switch ;
got off, ran along, threw the switch into the main line, and did not
get back any more; did you hear Mr. Benton say that?
A. I haven’t got anything to do with what Mr. Benton said.
The Courr: Did you hear him say that?
A. I don’t remember whether Mr. Benton said that or not. ‘i
P Mr. Tompxins: If he did say that, was that true; was that the
act?
A. I told you what I said was the fact; I said Mr. Hamlet got off
the engine about the yard office.
Q. With regard to where they went into the switch, the north, or
No. 4 switch?
A. Before we got to No. 4 switch. the track switch sets at the corner
of the yard office.
Q. You did not go in there?
A. No, sir; we went in No. 4.
Q. And he got off before you turned in 4?
Yes, sir.
Q. Then you did not mean to say thatthe engine was on the
main line a at he got off his position back of the train; the train
was on the main line, wasn’t it?
A. I cannot say whether the rear cleared the main line or not
when he got off.
64 SEABOARD AIR LINE RAILWAY VS.
Q. Didn’t the train go in on 4?
A. Yes, sir.
Q. Was he on the front of the tender footboard when you went
in track 4?
A. I a not see the engine when in 4, I had gone in the yard
office.
87 Q. How far was that from the switch that turned in
track 4?
A. The yard office?
Q. Yes?
A. About 80 or 90 feet, I guess. Two switches from the corner.
Q. You got off and went into the office; where was Mr. Hamlet?
7: I don’t know; I presume he got on top as customary for him
to do.
Q. You saw him when he got off the footboard?
A. Yes, sir.
Q. Was your engine on the main line all that time?
A. No, sir.
Q. Where was it?
A. On the lead.
Q. Track 4?
A. On the lead before — got to track 4; lead is where all tracks
come out into one.
. This train ran from the main line into the lead?
Into 4.
And he got off after it turned into the lead, is that right?
Yes, sir.
And before it turned in track 4?
es.
Now, how far is that from the yard office?
I judge it to be ten or twelve cars.
South of the yard office?
North of the yard office.
You switch to the right going over that way?
As the lead goes in the switch goes to the right from the lead.
The lead is to the right of the main line?
No, sir; to the left.
From here?
Yes, sir.
You have to cross the main line to get into the switches?
No, sir.
Q. Now, look at these photographs; one witness testified the photo-
graph shows part of the yard where this accident occurred, and that
is the photograph of it, about the time this accident occurred; is
that about like as you remember it?
A. It may be like that, yes, sir; I do not consider that bad,
though.
88 Q. The movement from Columbia. Mr. Benton testified
you all were hauling cars from Columbia to Cayce yard, and
from the Cayce yard back to Columbia yard?
A. We switched at Columbia and at Cayce; we did anything neces-
sary to be done over there, or anything necessary to be done here.
POPOPOPOPOrOPpopore
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETO. 65
Q. What were you doing that night?
A. Switching in Columbia, switched at warehouse, joint yard; I
‘don’t —— whether had anything to do with the cotton mill
that night.
Q. Mr. Benton said you were carrying cars to Cayce and bringin
another load to Colenabia. is that right? —
A. We did that every night.
Q. Answer the question, is that what you were doing that night?
A. When possible to do that; I do not know as we came right
back or 4 or 5 o’clock in the morning when we came back ; sometimes
came back two or three times; sometimes didn’t get back until—we
did what was necessary to do.
Q. That movement, Columbia to Cayce, is known as an extended
movement?
A. I would call it extended movement, Columbia to Cayce.
Q. This time table applies to it?
A. It applies, supposed to, to the main line.
H. E. Hamuer (white), sworn, says:
Mr. LyLes:
Q. What do you do now?
A. Yard conductor, Seaboard.
Q. In June, 1913, what were you doing?
A. Switching for the same company.
Q. The night Mr. Koennicke came to his death, June 13, 1913,
with what crew were you connected?
A. Engine 423.
Q. Do you recall the a ou made to Cayce that night when Mr.
Koennecke was kil #4 from Columbia?
89 A. No, sir, I do not know any special features of it I can
recall on the way over.
Q. Where did your train leave the main line?
A. At the switch that enters the yard, 15 or 16 cars, switch known
as leading switch.
Q. Called the north switch, too?
A. Whenever cross over the switch.
Q. You leave the main line, come to the lead track that slants to
the left?
A. That is correct.
Q. And turn off the lead track as you come in?
A. Yes, sir.
Q. As your train turned off the main line that night—where were
you riding that night?
A. I was on the engine as well as I remember.
Q. What part of the engine?
A. I would not attempt to say, I do not remember.
Q. As you pulled out the main line and went up, do you know
where you were riding?
A. We stopped at the switch entering the yards; I got off there and
tode on the eotboard.
9—491 -
66 SEABOARD AIR LINE RAILWAY VS.
Q. You rode on the footboard near the place where you left the
lead and went in track 4?
A. Yes, sir.
Q. That night as you went in the yard—how many headlights
on that engine?
A. One was on there as we entered the yard, that is one was
burning.
Q. Which one was that?
A. On the rear of the tank ; one on south end of tank.
Q. Was that headlight in good condition?
A. It was.
@ As your train went in, 423, do you know where cngine 419
was
A. Standing on track 3.
Q. Any other engine on track 3?
A. There was.
Q. What was that?
A. Road engine; I don’t know the number.
Q. Tell us as you entered track 4, left the lead and went
90 in track 4?
A. That was just before Mr. Koennecke was killed, before
the time he was supposed to be killed.
Q. The place he is supposed to have been killed at is about how
far, approximately, from the switch of track 4?
A. IT should say about eight or nine cars.
Q. As you went in track 4 was engine 419 moving?
A. It was not at the time we passed it.
Q. At that time engine on track 3, south, 419, was that engine
standing or moving?
A. Standing still.
_ Was there a headlight on that road engine on track 3?
. There was.
. What character?
. Electric headlight.
. Was it burning?
A. It did.
Q. That covered the place where Mr. Koennecke was supposed
to be?
A. I could not say positively, I should say so, possibly five or six
cars between the two engines.
Q. As 423 backed in track 4 at the time it is supposed Mr. Koen-
necke was run over was that the only engine in motion?
. The only one I saw.
. Was it the only one of those three trains in motion?
. Yes, sir; the only one of those three.
_ The only trains on tracks 3, 4 and 5?
. Yes, sir.
Q. What is the condition of that walkway between 3 and 4?
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 67
A. Py don’t know I could describe any difference in general char-
acter
Q. Was it rough and uneven in there?
A. No, it wasn’t perfectly level, some rough places in it.
Q. Anything there to cause a man to stumble and fall?
A. I could not say, I did not see anything.
Q. Have you done much switching in Cayce yard?
A. Been over there 14 months. ,
91 Q. The time you worked in the Cayce yard particularly?
A. I was on the engine, we worked both sides, both at
Columbia and at Cayce; at the time of the accident I was on that
for awhile last summer, possibly a month or two.
Q. Now, are you familiar with Rule U in the time table?
A. I am.
°. Requiring a man to be on the front of the engine when pulling
cars
A. I am familiar with that rule.
Q. Does that apply to switch engine when not on the main line?
A. Never has been taken to mean such.
Q. Is there any custom or requirement that you should have a
man on the switch engine in the yard doing switching work?
A. I never heard of it if it is.
Q. It has a headlight on the tender shining up the track, if the
train is moving up and the headlight burning?
A. The light shines in the direction the engine is moving; sup-
to be a light on each end. .
. It lights up the track pretty well?
Yes, sir.
Nothing to keep a man from seeing that?
. Should not be if he has good eyes.
>O>o
Cross-examination :
What time of night was it?
About 9:35 or 9:40.
pe was the first time you had been over there that night?
t was.
What time did you go back?
To Columbia?
Yes?
I presume 4 o’clock the next morning; that was generally
the time we came over.
Do you remember the time you came over?
Q You me ed loads to Ca:
. You were engaged in carrying to ce and bringi
loads back here? —
A, That was part of our work.
Q. Wasn’t that what you were doing that night?
A. At the time of the accident we were taking cars from Colum-
bia to Cayce.
92 Q. After your car stopped on 4, your engine was un-
hitched and carried round to hitch te another line of cars?
POPOoPOPo
©
SEABOARD AIR LINE RAILWAY V8.
A. It was.
Q. And carried those cars back to Columbia?
A. No, sir.
Q. Then Mr. Benton was wrong?
A. Must be.
Q. You heard him testify?
A. I heard his testimony.
Q. He said that?
A. I would not pretend to say.
Mr. Lyxzs: I object to that method of examination.
Mr. Tompkins: I have the right to ask him.
Mr. Lyxes: That is not a proper method of examination.
The Court: Just ask what he knows about it.
Mr. Tompxrins: I would not force the witness to answer some-
thing he does not know. Counsel is unduly excited about the
matter. Did you hear what Mr. Benton said?
A. T did.
Q. Did he not say that when he unhitched the train of cars that
they carried to Cayce, they hitched another train of cars and
brought it back to Columbia?
A. I don’t remember positively, I was not paying strict attention
to his testimony; I don’t know whether he said they brought them
to the joint yard or to Columbia.
Q. Carrying them over there, that was an extended movement?
A. What do you mean?
Q. Carrying cars from Columbia to Cayce?
A. Yes, sir.
Q. That is known in railroad circles as an extended movement?
A. IT don’t know. It was entirely within the yard limits; the
whole movement made was entirely in the yard limits; I do not
know that it would be considered an extended movement.
Q. oe place is in an entirely different county from this?
. It is.
Q. It is across the river. How long is that trestle that crosses
the river?
A. I should say about one-eighth of a mile.
Q. The trestle is longer than that? :
93 A. You mean the long trestle; that trestle I should say
must be a mile and a half or a mile and three-quarters long.
Q. That is on the trip between Columbia and Cayce?
A. Immediately after you leave Columbia.
Q. Now, you are familiar with the Seaboard Railway Time Table?
A. The part relating to our work, yes, sir.
Q. How far from Columbia to Cayce; look at this?
A. Three and one-half miles.
Q. By the way, is Cayce on the Columbia Division, or the South
Carolina Division, or the North Carolina Division?
A. Cayce is the dividing point in the two divisions, the North
Carolina Division ends at Cayce and the South Carolina Division
starts here.
Q. Of both divisions?
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 69
A. Yes, sir.
Q. This time table is not exactly accurate about that when it says
South Carolina Division between Columbia and Savannah?
A. Passenger train station at Columbia, that’s the reason shows
it from Columbia. ;
Q. Now, you say you got off about the lead, the lead switch,
a near the yard office; did you throw that switch?
A. IT did.
Q. Did you throw the switch on track 4?
A. I did not.
Q. Where did you go after you threw the switch on the lead, from
the main line to the lead?
A. I rode on the rear footboard somewhere in the vicinity of the
yard office; the crew working there threw the switch and signed her
back, I dropped back.
- Did you see Mr. Koennecke at all before the accident?
A. No, sir.
Q. How long had you been on the footboard before you reached
the track at the switch, the lead switch?
A. Can’t say.
Q. Didn’t you crawl from around that engine on the board and
jump off and throw the switch?
FG — have waited until the engine stopped and got
off.
94 Q. As a general thing, as a general rule, don’t more people
move around the yard at Cayce than between Cavce and
Columbia?
A. Yes, I suppose would be more around the track.
Q. And would be at Columbia, around the yard here, than on
the line between here and Cayce?
A. I should think would be, yes.
Q. Those laborers here working around the yard and different,
places, switchmen and conductors only of one crew?
A. They were working near the north end.
Q. They make up trains, through trains, don’t they?
Yes, sir.
Q. The yard conductor and his switchmen and engineers make
up trains to Savannah and to Hamlet?
They do.
. That is part of their duty?
es, sir.
That is going on pretty much all the time?
- About 20 hours out of the day.
. That is the place where trains for this vicinity are made up
re —" out?
A. Trains for both divisions are made up.
_Q. Explain to the jury how trains are made up, what a train con-
sists of; in making up a train what do they do; what does the
conductor do, and what does the engineer do, and the switchman,
what does he do?
A. Very hard to do that. An engine is a train with or without
SOrO>o>
be
70 SEABOARD AIR LINE RAILWAY V8.
cars; might be an engine, or an engine with 100 cars and still be
a train; would be a hard question.
Q. Suppose a freight train, to leave there, for, say, Hamlet, to-
morrow morning 10 o’clock, how would that train be assembled?
A. If it was a through train, put the cars on one track, couple
togethet, caboose one end, engine the other.
Q. The engineer, the yard conductor and the switchmen would
do that assembling?
A. They do all except putting the engine on.
95 Q. That is part of the duty of the yard switchman, yard
conductor and engineer?
A. Yes, sir.
Q. Look at this picture ; does that to you represent the condition
of the ground around the spot where Mr. Koennecke was killed at
that time?
A. I could not pretend to say.
Q. How does it compare with your memory?
A. I could not tell whether this is part of the Cayce yard or the
Savannah vard.
Q. You remember how the yard looked then?
A. I do not remember that particular spot; I could not pick up
any one spot.
Q. Did any part of that yard look like that at that time?
A. I could not say; I could not recognize that picture as being
part of the yard.
Q. You could tell whether any part of that vard was rough or
covered with sharp clinkers?
A. Were places in it that were rough.
Q. You could tell the jury whether that looks like the place that
he was killed?
A. I could not do it with fairness to myself.
CHARLIE Brown (colored), sworn, says:
Mr. Lyuzs:
Q. What do you do now?
A. Work in the dam at the government work.
Q. United States Government?
A. Yes, sir.
Q. What were you doing in June last year?
A. I worked in the Cayce yard for the Seaboard.
Q. What were you doing over there?
A. Switching cars.
Q. Do you remember the night Mr. Koennecke was killed?
A. Yes, sir.
Q. What was your job that night?
A. Coupling engine to cars and cutting them off.
96 Q. Were you on the same crew with Mr, Koennecke?
A. Yes, sir.
Q. What was his job?
BEAUREGARD MAGDALENE KOENNECKE, ADM’X, ETC. 71
A. To look out for putting and taking them off and to see they
were on the right place.
Q. Who was your conductor?
A. Mr. Barker.
Q. The gentleman who testified this morning?
A. Yes, sir.
ve you remember the time when Mr. Koennecke got killed?
es, sir.
On what track was your engine at the time he was killed?
On 3 track.
What was the number of your engine?
No. 419.
Where had you been just before you came back to track 3?
Been in 8 track.
Did you hear Mr. Barker tell Mr. Koennecke to go back to
track 3?
A. Yes, sir.
Q. You came back to track 3?
A. Yes, sir.
Q. Did you back up in there to couple on to those cars before
Mr. Koennecke was killed?
Yes, sir.
Q. Now, 423 came in on 4?
Yes, sir.
Q. At the time 423 passed you was your train standing still?
. A. Yes, sir, standing in the clear track 3; I was standing right
y it.
Q. Where were oy 4
A. Leaning up by the engine, waiting until 423 pulled by.
Q. No. 425 was in your wey? es ‘i ‘
Yes, sir.
Q. Was there another engine in track 3 behind your train?
A. Yes, sir; road engine standing in the same track.
Q. Now, at this time you were standing still and 423 passed you
going south ; was the road engine standing still?
A. Yes, sir.
Q. Was there a headlight on the road engine?
A. Yes, sir.
Q. What kind of headlight?
A. Electric headlight.
Q. Now, Charlie, the cars you coupled to, you don’t know
97 where they came from?
A. No, sir, the local brought them from the north; where
they came from, I don’t know.
Q. What local?
A. Toward Hamlet.
Q You don’t know where any of those cars came from?
A. No, sir.
Q.
This text is long and has been trimmed here. Open the source document for the complete record.
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