Transcript of Record — Jacobs v. Southern R. Co.
Supreme Court brief1916
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SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1915.
No. 326.
RALPH B. JACOBS, PLAINTIFF IN ERROR,
v8.
SOUTHERN RAILWAY COMPANY.
IN ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF
VIRGINIA,
INDEX.
Original. Print
Memenment Of CTTOTS. ... 02... cece cece ccc eseeceresesseccecs 1 1
Petition for a writ of error to supretmne court of appeals........ 11 7
ee OE FEE EPS ERO EE OT OE Ber 13 8
SE eer eee ere ee ere eT eee ee ee 16 9
IE, DEN VOODS: 5 u've ews bss 8h b vsiv ws ope son doe eA eee es oka 19 11
Cena Cc) SUPE OL OREOR. 6. ook creas bh 6 060.508 tien acess ee 20 11
Petition for a writ of error to circuit court.................... 22 12
SE OE) ee eee re eee ee 35 21
Transcript of record from the circuit court of Brunswick county. 35 21
PEELE LOL REPEC RSET eR Te eee ee 35 22
Motion and order to quash; jury impanelled, ete.... 2.0.0... 46 29
ME are iad cea wake Wy R Mee Wall aes sheila ye ee ee ak eld 47 29
en aah OE MMe FOPGICE, CEC. 66 cece s bcc ctv acensanevever 47 30
RS Css 6 kale Way aio evo eS ere Laie. Gea kee ewe ek eee 48 30
NS RECTOR REL CECE EN RE Poe ee 49 31
ee Ce Oe MTEL Pay art airs er Py ea aD) 32
RUMEN SOUS. 0s 5 as aa, b i015. 0b 5.0 6:09.80 k 40 Ga alae edie ep 51 33
es
Jupp & DeTWEILeR (INC.), PstNTERS, WASHINGTON, D. C., JUNE 24, 1915.
INDEX
Original. Print
SEGA ORs Us RON bc ok ok hv eee es bass wese ebeees 52 33
Rar hs EN oe Sa hc Reese cbaaede D4 35
Bis We AON CLOCRTIOR) ook ek vive vices nD 35
PG EGY bra fc Succes Sreneere : ast) 38
CRs MANNE akbais's dy cde ssn Uesieeee. 63 4]
Be, Gh, OENOW (POCATION) . occ ciciecccecs 4 49
Bis Ree MER as oe ohne eee Ke EC OLE Oe 65 42
Mie ete RRs SEN OAS y eRe a DEES we ye G7 44
PG 3 SR aS MA eto ae Ba er 70 46
Fe Eee NOBUO. sie bce eee aE Re ee ee orens 71 47
Mier Oe Os 8 se yo 0k kk ee Re Meta ney i 76 BY |
DL Aa Pr 87 59
BR. G. Bemirow (recales) 6.6. kcsccvcccer SO 60
CR nt MIRE ON Ths sh Scent wis Cae tary key me 91 62
NAOMI Sci ge div da ce eae Cae os eee aeRO 92 62
ey GOGIrey CFECKNEGHR i. ssceescs sce sec 2 4
Wie EME uraias Beas Wao eweeee thas 96 65
MiP ENS (5k5 barb da oie Glee eae e's 98 67
Bi, Be, SRCOOO CROCRIIOG) 6 v5.5 iieiiikcccas cues 101 69
A BE PIO WONG. CROCGTIOCR in o's 5 bk 6 cvs cere 103 70
Judge's certificate to bill of exceptions No. 1.......... 105 71
Beth CE ACUI NOs as hi ie Cuca EON O 2 eGU KORA EOE EER 105 72
REECE CO) SUES 6.5056 6050.4 8 cine he sew kbc «kb ees bee Os 105 72
BERTONE UN a nie et ora cee be REM SER E ae EG Re EO eb eee ed 108 74
BREED CERT EC CRS S OL EORSEE TE AE eRe 108 74
ee Seach enw Sew iat Sahn bk we a ier bate Ch 108 74
NS re eek Be ee ee COG PI rare 109 74
Nia ody da om vies ic hiie eee ib a'9.9 Pied aad ore GeteeN 109 74
| ee eee TSTMS EEN OE SR THE Piro Oe 109 75
Gu srerir dia tGiedusaneseiedsiwecsyee ty 110 75
BAe rare OC Ck ea Ee REE CCR CORE Oo 110 75
Judge's certificate to bill of exceptions No. 2.......... 111 * 15
Pshibit A—Disgram (Not Ot OUt) «in cc ie caiccweeccess 111 76
nh POR Pint rs kha ee es thei ethiok ob bebetbee awe 111 76
UNE: TRON, BE via 0 i0c.e > fed ece ee ees eds teecewerbesaeens 113 76
EM Cer are Sie vain: kiomw arcade AT ew dale bean wlele Wolo Dpralad-wrelacs Ds 124 85
Order of court taking petition for rehearing under advisement. . 125 85
Order denying petition for rehearing.............. ccc eee ec eee 126 8H
RUS OE, CUM PMID 0, chp ara & 6 Wika be Wied’ p Gen Ek owe. Bore Oe wi bate 127 86
AONRRY GE ONE ask rick oi 0'e oO Kd ee ee OU see seb BERR eS 128 87
Proceedings in the circuit court of Brunswick county on second
Oo Ring RESTS Re Or Lente ree Oa ay ener oe ore er re 7 nn ene ne 134 8a
Judgment of the supreme court of appeals remitting case... 154 89
Creer CET CONE Sr Sete 6 etc ci nd ciara Pewiaeveneien 135 90
SE TERE a4 o6:a CR wo ieee a Rd d Rie ilcedeie aL eR eae 35 90
Pe UAT Tie TIMI SECU Dg ou. 556s coir sah dee ER EO LER Dae T OT 136 90
Petes BD SBEVOCUIONS EO JOEY 66a ccs ee heed esscceess 136 91
Judge's certificate to bill of exceptions No. 1.......... 140 93
a ae ere ge ee a ee re 141 93
RPOTORCRIE 6 IGEEPUCTIONS tO JORG bons ca ick kee ad seve ccee 141 93
Judge's certificate to bill of exceptions No. 2........... 144 95
INDEX. 1!
ti Me ORCOPIAUUE INGOT Weick 67 65d cee Ksek div dcbecccuscesend 144 95
DMM INUAIE TY REMUS Coe Vinee che db Gud Caco knee Gd week ea eee 145 96
Judge's certificate to bill of exceptions No. 8.......... 146 96
BUAND OE SER OORMIIN ING Bie oo oa kc 0b cen bbb bios 8b bikw hee eke och 146 96
FM ROUUNONOS ook re alc ee RE ee eek ce bh 146 96
Judge's certificate to bill of exceptions No. 4........... 148 97
REAL CRC IRIO TID: SNCS AP ihe skal Rv ae Nae so ekaiabedd View wen hi 149 98
PriCUeTAGUIE ee PSEEUCTION. INO: Oso ie hcccos's-c an cccx vce cvwers 149 98
Judge's certificate to bill of exceptions No. 5.......... 151 98
BPE CR CRU MIIMR INO NE 6 5 da is iain/en serene decast Shean 151 99
Pinwntre 6 tnetenetion No: 622.006 6.56 kok ceca cccees. 152 99
Judge's certificate to bill of exceptions No. 6.......... 152 99
Baie, Cae WUE M MONI EUEN EDS 2 4.2.0.4 Ssyi0\s..0.8:6 1010S Pinole cliwiaed Caren els 158 100
‘RERC HMI Cree WETS WAONN 6-5. 0ier a: Lig-y crere'g Sie. cine cle cides 153 100
oe tO er ae ee OR 157 102
Mm, Wa bigon -(PecdNed) so... 556s 6ov cece 158 102
We OI TRCER RE SDE? oR ioe picts We sree cree hg 164 105
OU MRMRMOE 6 Sacre pnb hes (ci ccc hea 171 108
R. G. Renfrow (recalled)............... 1738 109
Peer MM TOPPER Sa ale iarc dats Sick ce taty ik pile tes 174 109
PR a aiis abe s Ge Us snd Sa'c dae cede 178 111
Fe iS oe Kh hewiaks iNSiWddg oh bene con 183 113
Mi; We SG Sedan snd eek asee rccmel 184 114
Wee IE aire Seb cw ow thdioxnen eek 193 117
be he epee LEED PT ern 212 126
R. G. Renfrow (recalled)............... 215 127
Mp IE hand cove Sves accel, 218 129
a erp ens, FEN OE DEOL 218 129
T. B. Godfrey (recalled) ............... 219 130
cg iy Becmcsssana. ELT TE Oe OTe OE Ae 225 132
“op bess cb. pee ge od A EEE Ee 228 134
R. B. Jacobs (recalled)................. 233 136
A. D. Flowers (recalled) ................ 236 137
COURT'S CHAPHW OO CW JONF. 6 5c cise ccc cecccscuse, 238 138
biccrrip chad RL ELE EE OT er eT Porn ane 241 139
Motion to set aside verdict overruled................. 241 139
Fee Se NE PO Mss prin ds 12H vv ch dkk diacdeeeeoas 242 140
secon Bapasedb hc syle aes EE PO OE Tn a 242 140
Judge's certificate to bill of exceptions No. 8.......... 243 140
asst sndesoia aan ol cn a Bias OCT EO a ane 243 140
Judge's certificate to bill of exceptions No. 9. s.ecs.s.. 244 141
Exhibit A—Diagram (not set out)........................ 245 141
MR VES ones wae eps Avkvse none i oe cVaccced,. 245 141
Order denying writ of error to circuit COMER Arist Hi didacstennks 246 141
Clerk's certificate to record...............ccccceccecccccs.,. 247 142
Ee PNCONOD WO CUI oe oo ca iceeddieiwcenevircucscn 247 142
Clerk's certificate to PO aN icee che onan ee Kawadkshe beh ee 247 142
PpnnOm GB 60 TECOTE. oe ec scissceuncacnecs coun, 248 142
Ss emmys 6
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY, 1
Copy.
Supreme Court of Appeals of the State of Virginia.
Raupu B. Jacoss, Plaintiff,
v.
SouTHERN Raitway Company, a Corporation, Defendant.
Assignments of Error.
Now comes the above plaintiff, Ralph B. Jacobs, and files herewith
his petition for a writ of error, and says that there are errors in the
records and proceedings of the above entitled case, and for the pur-
pose of having the same reviewed in the Supreme Court of the United
States, makes the following assignments of error:
1. The Supreme Court of Appeals of the state of Virginia erred in
holding and deciding by its judgment rendered on the 12th day of
March, 1914, that the judgment of the circuit court of the county of
Brunswick, rendered in favor of said plaintiff on the 24th day of
April, 1913, against the said defendant, for the sum of $12,000.00,
with interest thereon from the dth day of March, 1913, and costs,
be set aside and reversed, and that a new trial be awarded the said
defendant.
The said plaintiff, as will appear from the transcript of the record
and proceedings in said case, asserted the right to recover damages of
the defendant in this case under and by virtue of the provisions of
the act of Congress of the United States approved on the 22d day
of April, 1908, and known as the Federal Employers’ Liability Act
(35 U. S. Stat. at L. 65, « 149). The said plaintiff, therefore,
claimed in this case rights, privileges and immunities under the laws
of the United States, which were denied him by said decision and
judgment of the said Supreme Court of Appeals of the state of
Virginia.
The said errors in said judgment are more particularly set forth
as follows:
2 (1-a) The said Supreme Court of Appeals erred in holding
and deciding by the judgment aforesaid that the said circuit
court of the county of Brunswick erred in giving to the jury, on the
motion of the plaintiff, instruction No. 2 requested by the plaintiff,
in the following words:
“The court further instructs the jury that knowledge by the plain-
tiff of the unsafe character or condition of the said roadway is of
itself no defense to an action for injury caused to him thereby. Such
knowledge, however, if the jury believe from the evidence that he
had such knowledge, may be considered by the jury along with all
the evidence in the case in determining whether the plaintiff was
himself guilty of negligence, which contributed to produce the injury
mentioned in the declaration; but the fact that the plaintiff may
1--326
aia nas nD
2 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY,
himself have been guilty of contributory negligence shall not bar a
recovery, but the damages shall be diminished by the jury in propor.
tio iw ihe amount of contributory negligence, if such there were,
which they may believe from the evidence was attributable to said
plaintiff under the circumstances.”
(1-b) The said Supreme Court of Appeals erred in holding and
deciding by the judgment aforesaid that the said circuit court of the
county of Brunswick erred in refusing to give to the jury, on the
motion of the defendant, instruction marked “A,” requested by the
defendant, in the following words:
“The court instructs the jury that if they believe from the evidence
that the existence of the cinder pile was known to the plaintiff, or
that he had been working on the Southern Railway at Lawrenceville
for more than a year, and that the cinders had been piled at the
same place in the way described by the witnesses for many years
prior to the accident, and that the plaintiff had failed to show that
he had made complaint or objection on account of the cinder pile,
then he assumed the risk of danger from the cinder pile, if there
was any danger in it, and the Act of Congress approved April 22,
1908, permits this defense, and the jury should find their verdict
for the defendant.”
(1-c) The said Supreme Court of Appeals erred in reversing, set-
ting aside and annulling the said judgment of the said circuit court
in favor of the plaintiff, upon the ground, alleged by the said
Supreme Court of Appeals, that the said circuit court erred in giving
to the jury said instruction No. 2.
The plaintiff avers that there was no error in that ruling and judg.
ment of the said circuit court.
(1-d) The said Supreme Court of Appeals erred in reversing, set-
ting aside and annulling the said judgment of the said circuit
3 court in favor of the plaintiff, upon the ground, alleged by
the said Supreme Court of Appeals, that the said circuit court
erred in refusing to give to the jury said instruction marked “A.”
The plaintiff avers that there was no error in that ruling and
judgment of the said circuit court.
2. The said Supreme Court of Appeals erred in refusing, by its
judgment rendered on the 10th day of November, 1914, to award the
said plaintiff a writ of error and supersedeas to the final judgment
of the said circuit court rendered on the 3d day of September, 1914,
in favor of the said defendant, on the second trial of said case, which
was had pursuant to the judgment aforesaid of the said Supreme
Court of Appeals rendered on the said 12th day of March, 1914, the
effect of which refusal to award the said plaintiff a writ of error and
supersedeas was to affirm the said judgment of the said circuit court
rendered in favor of the said defendant on the 3d day of September,
1914,
The errors in the said last mentioned judgment are more particu-
larly set forth as follows:
(2-a) The said Supreme Court of Appeals erred in affirming the
ruling and judgment of the said circuit court in refusing to give to
RALPH B. JACOBS yS. SOUTHERN RAILWAY COMPANY. 3
the jury, on the said second trial, instruction No. 3, requested by the
said plaintiff in the following words:
“Tf the jury believe from the evidence that the officers, agents and
employes of the defendant, or any of them, negligently caused,
suffered or permitted the pile of cinders mentioned in the declaration
to be placed, and to be, remain and accumulate upon and alongside
the main line of its railway track or roadbed upon its railroad yard
at the town of Lawrenceville, in dangerous proximity to the said
railroad track, and that the plaintiff suffered the injury mentioned
in the declaration, and that such injury resulted in whole or in part
from the negligence of the said officers, agents and employes of the
said defendant, or any of them, in either negligently causing, suffer-
ing or permitting the said pile of cinders to be placed, and to be,
remain and accumulate, upon and alongside the said railroad track
or roadbed as aforesaid, they shou!d find for the plaintiff.”
This instruction, the plaintiff submits, correctly states the law in
0 far as the first section of the said act of Congress makes the negli-
gence of any of the officers, agents or employes of the defendant the
basis of recovery for an injury resulting in whole or in part
4 from such negligence; and the said circuit court erred in
refusing to give said instruction to the jury.
(2-b) The said Supreme Court of Appeals erred in affirming the
ruling and judgment of the said circuit court in refusing to give to
the jury on the said second trial, instruction No. 4, requested by the
plaintiff in the following words:
“Tf the jury believe from the evidence that the defendant, through
its officers, agents and employes, or any of them, negligerily caused,
suffered or permitted the pile of cinders mentioned in the declaration
to be placed, and to be, remain and accumulate upon and alongside
the main line of its railway track or roadbed, upon its railroad yard
at the town of Lawrenceville, in dangerous proximity to the said
railroad track or roadbed, and that said pile of cinders constituted a
defect or insufficiency in said railroad track or roadbed of the said
defendant, due to the negligence of the said defendant, and that the
plaintiff suffered the injury mentioned in the declaration, and that
such injury resulted in whole or in part from such defect or insuffi-
ciency in the said railroad track or roadbed, due to the negligence
of the said defendant as aforesaid in so negligently causing, suffering
or permitting the said pile of cinders to be placed and to he, remain
and accumulate upon and alongside the said railroad track or road-
bed as aforesaid, they should find for the plaintiff.”
This instruction, the plaintiff submits, correctly states the law in
80 far as the first section of said act of Congress makes any defect
or insufficiency in the railroad track or roadbed of the said defend-
ant, due to the negligence of the defendant, the basis of recovery for
injury resulting in whole or in part from such defect or insufficiency ;
and the said circuit court erred in refusing to give said instruction
to the jury.
(2-c) The said Supreme Court of Appeals erred in affirming the
ruling and judgment of the said circuit court in refusing to give to
4 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
the jury on the said second trial, instruction No. 5, requested by the
plaintiff, in the following words:
“The fact that the plaintiff may have had knowledge of the exist-
ence of the pile of cinders mentioned in the declaration is not a bar
to an action for injury caused to him thereby. Such knowledge,
however, if the jury believe from the evidence that he had such
knowledge, may be considered by the jury along with all the evidence
in the case in determining whether the plaintiff was himself guilty
of negligence, which contributed to produce the injury mentioned in
the declaration ; but the fact that the plaintiff may himself have been
guilty of contributory negligence shall not bar a recovery, but the
damages shall be diminished by the jury in proportion to the amount
of contributory negligence, if such there were, which the jury may
believe from the evidence was attributable to the said plaintiff under
the circumstances.”
5 This instruction, the plaintiff submits, correctly states the
law under said act of Congress with respect to the extent to
which the plaintiff’s knowledge of the existence of the pile of cinders
affects his right of recovery for the injury sustained by him, and re-
sulting in whole or in part from the negligence of the officers, agents
or employes of the defendant, or from any defect or insufficiency due
to its negligence in its railroad track or roadbed; and the said circuit
court erred in refusing to give said instruction to the jury.
(2-7) The said Supreme Court of Appeals erred in affirming the
ruling and judgement of the said circuit court in refusing to give to
the jury on the said second trial, instruction No, 6, requested by the
plaintiff, in the following words:
“In order to charge the plaintiff with contributory negligence
which the jury are to consider in mitigation of damages, the jury
must believe from the evidence not only that the plaintiff knew of
the existence of the pile of ¢inders, but also that the danger occa-
sioned by the said pile of cinders was known to him, or was so ob
vious that a man of ordinary prudence would have appreciated such
danger, and not have attempted as the plaintiff did to get upon the
engine at the time and under the circumstances disclosed by the evi-
dence.”
This instruction, the plaintiff submits, correctly states the law with
respect to the doctrine of contributory negligence as applicable to
this case; and the said circuit court erred in refusing to give said in-
struction to the jury.
(2-e) The said Supreme Court of Appeals erred in aflirming the
ruling and judgment of the said circuit court in giving to the jury
the said instruction marked “A”, hereinabove set forth.
The plaintiff submits that the said circuit court erred in giving
said instruction marked “A” to the jury, for these two re: UsONs :
First. That the common-law defense of assumption of risk is not
an available defense in bar of recovery for any liability created and
imposed by the first section of the act of Congress; and
Second. That said instruction marked “A” does not correctly state
the common-law defense of assumption of risk.
(2-f) The said Supreme Court of Appeals erred in affirming the
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 5
ruling and judgment of the said circuit court in refusing to
6 set aside the verdict of the jury rendered in favor of the de-
fendant on the said second trial had on the 3d day of Sep-
tember, 1914, as aforesaid, upon the ground that the said verdict 1s
contrary to the law and the evidence; which ruling and judgment of
the said circuit court was also error.
The plaintiff submits that every fact necessary to entitle him ts
recover is established by the evidence in the case.
(2-9) The said Supreme Court of Appeals erred in aflirming the
ruling and judgment of the said circuit court in refusing to set aside
the verdict of the jury rendered in favor of the defendant on the said
second trial, had on the said 38d day of September, 1914, as aforesaid.
and award the plaintiff a new trial, upon the ground that the said
circuit court erred in refusing to give to the jury the said instructions
numbered 3, 4. 5 and 6, requested by the plaintiff, as hereinhefcre
set forth; which ruling and judgment of the said circuit court was
also error.
(2-h) The said Supreme Court of Appeals erred in affirming the
ruling and judgment of the said circuit court in refusing to set aside
the verdict of the jury, rendered in favor of the defendant at the said
second trial, had on the said 3d day of September, 1914, as aforesaid,
and award the plaintiff a new trial, upon the ground that the said
circuit court erred in giving to the jury the said instruction marked
“A” requested by the defendant, and hereinbefore set forth; which
ruling and judgment of the said cireuit court was also error.
3. The said Supreme Court of Appeals erred in reversing by its
judgment aforesaid, rendered on the 12th day of March, 1914, the
judgment of the said circuit court rendered as aforesaid in favor of
the plaintiff on the 24th day of April, 1913.
Under the law and evidence as it appears in the record in this
case in the said circuit court and in the said Supreme Court of Ap-
peals of Virginia, the plaintiff was plainly entitled to recover the
damages awarded him by the verdict of the jury on the first trial of
the case in the said circuit court, to-wit: $12,000.00, with interest from
the 5th day of March, 1913, the date of the verdict, and his
7 costs, for the following reasons:
(1) The defendant was at the time the plaintiff received
the injury a common carrier by railroad engaging in interstate com-
merce ;
(2) The plaintiff was then and there a person employed by said
defendant in such commerce within the intendment of the said act
of Congress ;
(3) The injury, to-wit: the loss of his right leg, sustained by the
plaintiff resulted in whole or in part from:
(a) The negligence of the officers, agents and emploves of the
defendant; and
(b) by reason of a defect or insufficiency due to the negligence of
the defendant in its track and roadbed on its yard at Lawrenceville,
consisting of a pile of loose cinders which had been suffered to accu-
mulate alongside its track.
(4) The plaintiff had not assumed the risk (a) of such negli-
6 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY,
gence of the said officers, agents and employes, nor (6) of the said
defect or insufficiency, inasmuch as under the said act of Congress:
(a) an employe can be held to have assumed only the normal
“risks of his employment”; the secondary risks superadded thereto
by the negligence of the defendant, or of its officers, agents or em-
ploves,and not assumed by the plaintiff, the statute imposing liability
upon the defendant for an injury to the plaintiff resulting in whole
or in part from any defect or insufficiency in its track or roadbed,
due to the negligence of the defendant, or from the negligence of
any of its officers, agents or employes, which liability is absolute;
(+) the principle of the assumption of risk of the employer’s neg-
ligence is a principle of the common-law of England and of such of
the states as may have adopted it; but the said common-law principle
is no part of a distinctive federal system of jurisprudence;
(c) in the absence of express adoption by Congress of the com-
mon-law principle of assumption of risk of the employer’s negli-
gence, the said principle does not ex proprio vigore #) ly as
8 a rule of decision in courts administering the law ©! the
United States, and the said principle as applied by the courts
of the United States is recognized by such courts only as an emana-
tion from the states which have not by constitution or statute abol-
ished the principle; and
(d) the common-law principle of assumption of risk had been
abolished in the state of Virginia before the plaintiff's cauge of action
arose, by virtue of section 162 of the constitution of the state, as well
as by statute (Code of Virginia, section 1294-k).
(5) Even at common-law, the plaintiff did not assume the risk of
the danger created by the said pile of cinders, because:
(a) the evidence shows that he had knowledge only of the exist-
ence of the cinder pile, but not of the resulting danger; and such
knowledge of the condition only does not at common-law charge him
with assumption of risk;
(>) at most, the plaintiff is chargeable with contributory negli-
gence only, which under said act of Congress is not a bar to recovery,
and the effect of which as the basis for mitigation of damages was
properly submitted to the jury by instructions given by the said cir-
cuit court.
4. For the reasons stated in support of the fourth assignment of
error, the said Supreme Court of Appeals erred in refusing by its
judgment rendered on the 10th day of November, 1914, to award
the plaintiff a writ of error and supersedeas to the judgment of the
said circuit court rendered on the 3d day of September, 1914, in
favor of the defendant, and in thereby affirming the said last men-
tioned judgment.
5. The plaintiff avers that the final judgment of the said circuit
court rendered in favor of the defendant on the 3d day of Novem-
ber, 1914, is erroneous in all the particulars set forth in the foregoing
assignments of error with respect to the judgment of the said Su-
preme Court of Appeals rendered on the 10th day of November,
1914, by which said judgment of the circuit court was affirmed; and
the said plaintiff prays that, so far as it may be necessary under the
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. ;
practice of the said Supreme Court of the United States for him to as-
sign errors in said judgment of the circuit court, the fore-
9 going assignments of error in the said last mentioned judg-
ment of the said Supreme Court of Appeals may be taken and
ireated as assignments of error also in the said judgment of the said
circuit court.
tor which errors the plaintiff, Ralph B. Jacobs, prays:
1. That the said judgment of the said Supreme Court of Appeals
of the state of Virginia, rendered on the 12th day of March, 1914,
may be reviewed, reversed and annulled; and that a judgment may
be rendered in favor of the said plaintiff for $12,000.00, the damages
awarded him by the jury on the first trial of this case, with interest
thereon from the 5th day of March, 1913, and for costs; and that all
proceedings in this case in the said circuit court and in the said Su-
preme Court of Appeals subsequent to the said judgment of the said
Supreme Court of Appeals rendered on the said 12th day of March,
1914, may also be reviewed, reversed and annulled;
2. That the final judgment of the circuit court of the county of
Brunswick, rendered in favor of the defendant, on the second trial of
this case asx aforesaid, on the 3d day of September, 1914, as well as
the final judgment of the said Supreme Court of Appeals rendered
on the 10th day ef November, 1914, affirming said last mentioned
judgment of said circuit court may be reviewed, reversed and an-
nulled; and that a judgment may be rendered in favor of the plain-
tiff awarding him a new trial, if in the opinion of the said Supreme
Court of the United States a new trial be necessary to attain the ends
of justice, and for costs; and
3. That all such other and further relief as may be proper in the
premises may be granted.
EDWARD P. BUFORD,
Attorney for the Plaintiff Ralph B. Jacobs.
10 | Endorsed:] Ralph B. Jacobs vs, Southern Railway Com-
pany. Assignments of error. Buford, Lewis & Peterson,
Attorneys at Law, Lawrenceville, Virginia.
11 Supreme Court of Appeals of the State of Virginia.
Raven B. Jacoss, Plaintiif,
vs.
SouTHERN RaiLway Company, a Corporation, Defendant.
Petition for Writ of Error.
To the Honorable James Keith, President of the Supreme Court of
Appeals of the State of Virginia:
Considering himself aggrieved by the final judgment of the Su-
preme Court of Appeals of the state of Virginia, in rendering jude-
ment against him in the above entitled case, the plaintiff, Ralph B.
Jacobs, hereby prays a writ of error from the said decision and judg-
8 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
ment to the Supreme Court of the United States; the said Supreme
Court of Appeals of the state of Virginia being the highest court of
law or equity in said state in which a judgment can be had in said
case. Assignments of error herewith.
EDWARD P. BUFORD,
Attorney for the Plaintiff, Ralph B. Jacobs,
STATE OF VIRGINIA,
Supreme Court of Appeals, ss:
Let the writ issue upon execution of a bond by the plaintiff, Ralph
B. Jacobs, to the defendant, the Southern Railway Company, a cor-
poration, in the sum of $300.00.; said bond when approved to act
as a supersedeas.
Dated, December Dec. 22nd, 1914.
JAMES KEITH,
President of the Supreme Court of Appeals
of the State of Virginia.
12 | Endorsed:| Ralph B. Jacobs, vs. Southern Railway Com-
pany. Petition for writ of error, and Order granting writ.
Buford, Lewis & Peterson, Attorneys at Law, Lawrenceville, Vir.
ginia.
13 Copy.
Supreme Court of the United States.
No. —.
Ratpu B. Jacons, Plaintiff,
vs.
SouTHERN Rattway Company, a Corporation, Defendant.
Bond.
Know all men by these presents, That we, Ralph B. Jacobs, as
principal, and W. T. Sledge and W. A. Trotter, as sureties, are held
and firmly bound unto the Southern Railway Company, a corpora-
tion, in the sum of Three Hundred dollars ($300.00.), to be paid
to the said Southern Railway Company, to which payment, well and
truly to be made, -ve bind ourselves jointly and severally firmly by
these presents.
Sealed with our seals, and dated this 21st day of December, 1914.
Whereas, the above-named plaintiff in error seeks to prosecute his
writ of error to the Supreme Court of the United States to reverse
the judgment rendered in the above entitled action by the Supreme
Court of Appeals of the state of Virginia,
Now, therefore, The condition of this obligation is such, that if
the above-named plaintiff in error shall prosecute his said writ of
error to effect, and answer all costs and damages that may be ad-
RALPH B. JACOBS yS. SOUTHERN RAILWAY COMPANY. 4)
judged if he shall fail to make good his plea, then this obligation to
he void, otherwise to remain in full force and effect.
RALPH B. JACOBS. [sgat.]
W. T. SLEDGE. [ SEAL. ]
W. A. TROTTER. [ SEAL. |
SraTE OF VIRGINIA,
County of Brunswick, ss:
W. T. Sledge and W. A. Trotter, being each duly sworn, on oath
depose and say: We are each of lawful age and are citizens of the
tate of Virginia, and know the contents of the foregoing instrument
to which we have attached our names. We each for himself
14 say we are worth the sum of Three hundred dollars
($300.00.) over and above all debts, liabilities and exemp-
tions.
W. T. SLEDGE.
W. A. TROTTER.
Subseribed and sworn to before me, this 21st day of December,
1914.
[Seal J. R. Owens, Notary Public, Brunswick Co., Va. ]
J. R. OWENS,
Notary Public.
(My Commission expires December 11, 1915.)
The above bond is approved.
JAMES KEITH,
President of the Supreme Court of
Appeals of the State of Virginia.
The original of the foregoing supersedeas bond was lodged with
the clerk of the Supreme Court of Appeals of Virginia on December
22, 1914, and the following endorsement made thereon. Bond re-
ceived and filed December 22, 1914.
H. STEWART JONES,
Clerk Supreme Court of Appeals of Virginia.
1) | Endorsed: | Supreme Court of the United States. No. —.
Ralph B. Jacobs, vs. Southern Railway Company. Bond.
Buford, Lewis & Peterson, Attorneys at Law, Lawrenceville, Vir-
ginia.
16 Tur UNITED STATES OF AMERICA, 88:
The President of the United States of America to the Honorable the
Judges of the Supreme Court of Appeals of the State of Virginia,
Greeting:
Because in the record and proceedings, as also in the rendition of
the judgment, of a plea which is in the said supreme court of ap-
peals of the state of Virginia, before you, or some of you, being the
2—326
10 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY,
highest court of law or equity of the said state in which « decision
could be had in the said suit betwee: Ralph B. Jacob: and the
Southern Railway Company, wherein was drawn in question the
validity of a treaty or statute of, or an authority exercised under, the
United States, and the decision was against their validity ; or wherein
was drawn in question the validity of a statute of, or an authority
exercised under, said State, on the ground of their being repugnant
to the constitution, treaties, or laws of the United States, and the
decision was in favor of such, their validity; or wherein was drawn
in question the construction of a clause of the constitution. or of a
treaty, or statute of, or commission held under. the United States,
and the decision was against the title, right, privilege, or exemption
specially set up or claimed under such clause of the said constitu.
tion, treaty, statute, or commission, a manifest error hath happened,
to the great damage of the said Ralph B. Jacobs, as by his complaint
appears, we being willing that error, if any hath been, should be
duly corrected, and full and speedy justice done to the parties afore-
said in this behalf, do command you, if judgment be therein given,
that then under your seal, distinctly and openly, you send the record
and proceedings aforesaid, with all things concerning the same, to
the supreme court of the United States, together with this writ, so
that you have the same at Washington on the 18th day of January,
1915, in the said supreme court, to be then and there held,
17 that, the record and proceedings aforesaid being inspected
the said supreme court may cause further to be done therein,
to correct that error, what of right and according to the laws and
customs of the United States should be done.
Witness the Hon. Edward D. White, Chief Justice of the said
supreme court, the 23rd day of December, in the year of our Lord
1914.
[Seal United States District Court, Eastern District of
Virginia. ]
JOSEPH P. BRADY,
Clerk of the United States District Court
for the Eastern District of Virginia.
Allowed by
JAMES KEITH,
President of the Supreme Court of
Appeals of the State of Virginia.
The original of the foregoing writ of error was lodged with the
Clerk of the Supreme Court of Appeals of the State of Virginia on
December 23, 1914, and also at the same time and place a copy
thereof for the Southern Railway Company. The following en-
dorsement was made upon the original writ and upon the copy.
Writ of error Filed, December 23, 1914.
H. STEWART JONES, |
Clerk Supreme Court of Appeals of Virgina.
Ve ee
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY, 11
Legal service of the foregoing writ of error is hereby accepted,
SOUTHERN RAILWAY COMPANY,
By WILLIAM LEIGH WILLIAMS,
: Its Attorney.
December 26, 1914.
18 [Endorsed:] Writ of error filed December 23, 1914, H.
Stewart Jones, Clerk Supreme Court of Appeals of Virginia.
19 Tue Unirep States or AMERICA, 8s:
The President of the United States to the Southern Railway Com-
pany, Greeting:
You are hereby cited and admonished to be and appear at and
before the Supreme Court of the United States at Washington, D. C.,
within thirty days from the date hereof, pursuant to a writ of error
filed in the office of the clerk of the Supreme Court of Appeals of
the State of Virginia, wherein Ralph B. Jacobs is plaintiff in error
and you are the defendant in error, to show cause, if any there be,
why the judgment rendered against the said plaintiff in error as in
aid writ of error mentioned should not be corrected, and why
speedy justice should not be done the parties in that behalf.
Witness, the President of the Supreme Court of Appeals of the
State of Virginia, this the 23rd day of December, 1914.
JAMES KEITH,
President Court of Appeals of
the State of Virginia.
[Seal Supreme Court of Appeals of Virginia, Richmond. }
Attest :
H. STEWART JONES,
Clerk of the Supreme Court of
Appeals of the State of Virginia.
Legal service of the foregoing citation is hereby accepted.
December 26, 1914.
SOUTHERN RAILWAY COMPANY,
By WILLIAM LEIGH WILLIAMS,
Its Attorney.
20 Return to Writ.
UNITED STATES OF AMERICA,
Supreme Court of Appeals of Virginia, ss:
In obedience to the commands of the within writ, I herewith
transmit to the Supreme Court of the United States a duly certified
transcript of the complete record and proceedings in the within en-
ittled case, with all things concerning the same.
In witness whereof, | hereunto subscribe my name, and affix
12 RALPH B. JACOBS vS. SOUTHERN RAILWAY COMPANY.
the seal of the said Supreme Court of Appeals of Virginia, in th
City of Richmond, this 7th day of Tannese 1918, r 7
[Seal Supreme Court of Appeals of Virginia, Richmond. ]
Clerk of the Supreme Court of Appeals of Virginia.
transcript, $73.64, paid by E. P. Buford.
Clerk of the Supreme Court of Appeals of Virginia,
The attorneys of record in the case are as follows:
E. P. Buford, Lawrenceville, Virginia, for plaintiff in error.
Wm. Leigh Williams, Norfolk, Virginia, for defendant in error,
21 Form 1474.
Southern Railway Company,
Law Department.
Norrok, Va., January Ist, 1915.
Raupu B. Jacoss
vs.
SoutTnuern Ry. Co.
H. Stewart Jones, Esq., Clerk Court of Appeals, Richmond, Va.
Dear Sir: I desire to acknowledge due notice of an application
on the part of Ralph B. Jacobs for a copy of the record in the above
entitled case, with a view to carrying the case from the Supreme
Court of Virginia to the Supreme Court of the United States.
Yours very truly,
W. L. WILLIAMS,
Ass’t Division Counsel for Southern Ry. Co.
22 In the Supreme Court of Appeals of Virginia, at Richmond.
SouTHERN RAibway CoMPANY
v.
Raupn B. Jacoss.
To the Honorable Judges of the Supreme Court of Appeals of
Virginia:
Your petitioner, Southern Railway Company, a corporation organ-
ized and existing by and under the laws of the State of Virginia,
respectfully showeth unto your honors that it is aggrieved by the
judgment of the Cirenit Court of Brunswick County, Virginia, en-
tered on the 24th day of April, 1913, in favor of Ralph B. Jacobs
and against your petitioner, for the sum of Twelve Thousand
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 13
($12,000.00) Dollars with interest thereon from the 5th day of
March, 1913, and costs.
A transcript of the record in said case is herewith presented.
This is an action seeking to recover damages for personal injury,
brought under the Act of Congress known as the “Emplovers’ Lia-
bility Act,” which was approved April 22, 1908. The material
arts of this act, so far as this controversy is concerned, are sections
1, 3 and 4, which sections, for the convenience of the Court, are
here quoted :
“Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That every
23 common carrier by railroad while engaging in commerce be-
tween any of the several States or Territories, or between any
of the States and Territories, or between the District of Columbia
and any of the States and Territories, or between the District of
Columbia or any of the States or Territories and any foreign nation
or nations, shall be liable in damages to any person suffering injury
while he is employed by such carrier in such commerce, or, in case
of the death of such emplovee, to his or her personal representative,
for the benefit of the surviving widow or husband and children of
such employee; and, if none, then of the next of kin dependent
upon such employee, for such injury or death resulting in whole
or in part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or insufficiency,
due to its negligence, in its cars, engines, appliances, machinery,
track, roadbed, works, boats, wharves, or other equipment.
Sec. 3. That in all actions hereafter brought against any such
common carrier by railroad under or by virtue of any of the pro-
visions of this Act to recover damages for personal injuries to an
employee, or where such injuries have resulted in his death, the
fact that the employee may have been guilty of contributory negli-
gence shall not bar a recovery, but the damages shall be diminished
by the jury in proportion to the amount of negligence attributable
to such employee: Provided, That no such emplovee who may be
injured or killed shall be held to have been guilty of contributory
negligence in any case where the violation by such common carrier
of any statute enacted for the safety of employees contributed to the
injury or death of such employee.
Sec. 4. That in any action brought against any common carrier
under or by virtue of any of the provisions of this Act to recover
damages for injuries to or the death of, any of its employees, such
employee shall not be held to have assumed the risks of his employ-
ment in any case where the violation by such common carrier of
any statute enacted for the safety of employees contributed to the
injury or death of such employee.”
This Act was amended by an Act of Congress approved April 5,
1910, but the amendments are not material to this contro-
versy.
24 All of the evidence adduced both for the plaintiff and
the defendant will be found set out in the transcript, Record
pp. 22 to 101, inclusive, constituting Bill of Exceptions No. 1.
14 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY,
On Record p. 100, it will be seen that after the jury found their
verdict for the plaintiff the defendant moved the court to set aside
the verdict of the jury as contrary to the law and the evidence, and
for misdirection of the jury, and for failure to instruct the jury
as requested by the defendant, and for errors of the court in reject-
ing evidence offered by the defendant, and in admitting evidence
over the objection of the defendant, and because the verdict was ex-
cessive, and the rights of the defendant under the Act of Congress
under which this action was brought had been denied; and that this
motion was continued to a subsequent term, and at the April Term,
1913, this motion was overruled, and a new trial was refused by the
court below, which action and ruling of the court is now assigned
as error.
On Record pp. 102-104, inclusive, wiil be found the instructions
asked for by the plaintiff, all of which were given. Instruction No.
1 sets out in substance that it was the duty of the Railway Com-
pany to use ordinary care to maintain and keep its railroad tracks
and roadbed in a reasonably safe condition. To the giving of this
instruction the defendant in proper time excepted, and now assigns
the action and ruling of the court in giving this instruction as
error. The objection to this instruction is that there was no evidence
in the case showing any failure on the part of the defendant com-
pany to keep its roadbed in a reasonably safe, condition.
Instruction No. 2, found on Record p. 102, was given over the
objection of the Railway Company, and this action of the court
is assigned as error. This instruction reads as follows:
“The court further instructs the jury that knowledge by the
plaintiff of the unsafe character or condition of the said roadbed
is of itself no defense to an action for injury caused to him thereby.
Such knowledge, however, if the jury believe from the evidence that
he had such knowledge, may be considered by the jury along with
all the evidence in the case, in determining whether the plaintiff
was himself guilty of negligence, which contributed to pro-
25 duce the injury mentioned in the declaration; but the fact
that the plaintiff may himself have been guilty of contribu-
tory negligence shall not bar a recovery, but the damages shall be
diminished by the jury in proportion to the amount of contributory
negligence, if such there were, which they may believe from the
evidence was attributable to said plaintiff under the circumstances.”
This instruction is open to the objection that at one and the same
time it undertakes to apply to the case the law of Virginia as laid
down in Sec. 162 of its Constitution, and also the law as declared
by the Act of Congress above recited. Furthermore. the instrue-
tion blends and confounds the doctrine of assumption of risk and
the doctrine of contributory negligence in hopeless confusion,
treating them apparently as if they were the same, although they
are two very distinct propositions, and dealt with by the Act of Con-
gress in different ways. The instruction is the converse of the in-
structions asked for by the defendant, and will be discussed more
at length in connection with the instructions asked for by the Rail-
way Company.
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 15
Instruction No. 3 granted for the plaintiff below, found on Ree-
ord p. 103, was given over the objection of the Railway Company,
and this action of the court is assigned as error. The objection
to this instruction is that it absolutely ignores all of the defenses
of the defendant below, and furthermore, ignores the fact that at
the time of the accident none of the cars being moved were loaded
with interstate freight, in whole or in part, nor were any of the
cars in that movement destined to any point beyond the State of
Virginia, nor was the contents of any of the said cars destined to
any point beyond the State of Virginia. The instruction is the
converse of an instruction asked for by the Railway Company, and
the objection will be elaborated further on.
On Record p. 105 it will be found that the Railway Company
asked the court to give the following instruction, marked “A”:
“The Court instructs the jury that if they believe from the
evidence that the existence of the cinder pile was known to the
plaintiff, or that he had been working on the Southern Rail-
26 way at Lawrenceville for more than a year and that the
cinders had been piled at the same place in the way described
by the witnesses for many years prior to the accident, and that
the plaintiff had failed to show that he had made complaint or ob-
jection on account of the cinder pile, then he assumed the risk of
danger from the cinder pile, if there was any danger in it, and the
Act of Congress approved April 22, 1908, permits this defense, and
the jury should find their verdict for the defendant.”
The Court refused to give this instruction and the Railway Com-
pany excepted, and now assigns this action and ruling of the Court
as error.
By reference to Record p. 69, and the following pages, and Ree-
ord p. 74, it will be seen that the plaintiff below had been working
for the Railway Company at Lawrenceville for about eighteen
months before the accident, and was entirely familiar with the
practice and habit of the company of piling the cinders along the
track from time to time at the point where the passenger trains
blew out the ash pans. The undisputed evidence in the case shows
that this had been the practice and habit of the company for many
years, and that the plaintiff, Jacobs, was entirely familiar with this
practice and habit. It is assumed that the court below refused to
give this instruction upon the ground that the doctrine of assump-
tion of risk has been abolished in the State of Virginia. It is said
in the case of Schlemmer v. Buffalo, &e., Co., 220 U. S, 590; 55
L. Ed. 600, as follows:
“While, as was said in the case when here before, assumption of
risk sometimes shades into negligence as commonly understood,
there is, nevertheless, a practical and clear distinction between the
two. In the absence of statute taking away the defense, or such
obvious dangers that no ordinarily prudent person would incur them
an employee is held to assume the risk of the ordinary dangers of
the occupation into which he is about to enter, and also those risks
and dangers which are known, or are so plainly observable that the
employee may be presumed to know of them, and if he continues in
16 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
the master’s employ without objection, he takes upon himself the
risk of injury from such defects. Choctaw, O. & G. R. Co. y,
27 McDade, 191 U. S. 64, 67, 68; 48 L. Ed. 96, 100, 101, 24
Sup. Ct. Rep. 24, and former cases in this court therein
cited.
Contributory negligence, on the other hand, is the omission of the
employee to use those precautions for his own safety which ordinary
rudence requires. (See, in this connection, Narramore v. Cleve-
and, C. C. & St. L. R. Co., 48 L. R. A. 68; 37 C. C. A. 499, 509,
96 Fed. 298).
See also N. & W. R. R. Co. v. Cheatwood, 103 Va. 368.
It is respectfully submitted that if the doctrine of assumption of
risk, as above set out, applies at all, it is a perfect defense under the
evidence in this case, and the instruction should have been given,
provided that doctrine is a defense under the Act of Congress under
which the suit was brought.
Referring again to the act under which the suit is brought, See.
4 reads as follows:
“That in any action brought against any common carrier under
or by virtue of any of the provisions of this Act to recover damages
for injuries to, or the death of, any of its employees, such employee
shall not be held to have assumed the risks of his employment in
any case where the violation by such common earrier of any statute
enacted for the safety of emplovees contributed to the injury or death
of such employee.”
By the terms of the act itself assumption of risk is declared not
to be a defense when the negligence complained of is violation of
some statute enacted for the safetv of employees. The construe-
tion put upon this act by the Court below was that the defense had
been entirely abolished. Such a construction reads out of the Act
entirely Section 4, for if the doctrine had been abolished absolutely
and in all cases, why should Section 4 be inserted saying that it
should be deemed to be abolished in a certain particular case, to-wit:
when there had been violation of some statute enacted for the safety
of employees, etc.” The fair and reasonable construction of the Act
is to construe it as meaning what it says, namely, that the assump-
tion of risk is abolished only where the negligence is in viola-
28 tion of some statute enacted for the safety of employees. We
respectfully submit that the Act of Congress above referred
to is the exclusive substantive law governing cases of this character:
that Congress having spoken within its constitutional powers on this
subject, all State laws, so far as they are matters of substance and
right, yield to the law as declared by Congress; that one of the main
objects of the law was to produce uniformity in these cases through-
out all of the United States and its Territories and the District of
Columbia. Any other construction would only add to the already
great confusion which existed prior to the passage of the Act. We
would still have as many different State laws governing these cases
as there are States.
This question came before the Supreme Court of Idaho in the case
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 17
of Neil v. Idaho, 125 Pac. 341, and it was there said, referring to
the Act of Congress approved April 22, 1908:
“The provisions of section 4 of said Act of Congress do not remove
the defense of assumption of risk unless the injury or death of the
employee was contributed to by the violation on the part of the
common carrier of any statute enacted for the safety of the em-
ployees.””
lt matters not what is the law of Virginia in this connection. The
sole inquiry is, What does the Act of Congress mean in this respect?
In the case of Michigan Central R, Kk. Co. v. Vreeland, decided
January 20, 1913, in the Supreme Court of the United States, in
speaking of this very act it is said by the Court, speaking through
Mr. Justice Lurton, as follows:
“We may not piece out this act of Congress by resorting to the
local statutes of the state of procedure or that of the injury. The act
is one Which relates to the liability of railroad companies engaged in
interstate commerce to their employees while engaged in such com-
merce. ‘The power of Congress to deal with the subject comes from
its power to regulate commerce between the states.
Prior to this act Congress had not deemed it expedient to
29 legislate upon the subject, though its power was ample. “The
subject,’ as observed by this court in Second Employers’ Lia-
bility Cases (Mondou v. New York N. Y. & HL. R. Co.), 223 U.S.
1; 54, 56 L. Ed. 327, 347; 38 L. R. A. (N. S.) 44, 32 Sup. Ct.
Rep. 169, ‘is one which falls within the police power of the state in
the absence of regulation by Congress.’ By this act Congress has
undertaken to cover the subject of the liability of railroad companies
to their employees injured while engaged in interstate commerce.
This exertion of a power which is granted in express terms must
supersede all legislation over the same subject by the states.”
Again in the same case it is said:
“The statutes of many of the states expressly provide for the sur-
vival of the right of action which the injured person might have
prosecuted if he had survived. But unless this Federal statute which
declares the liability here asserted provides that the right of action
shall survive the death of the injured employee, it does not pass to
his representative, notwithstanding state legislation.”
Again, in the case of Seaboard Air Line v. Moore, decided by the
Supreme Court of the United States April 28, 1913, opinion by Chief
Justice White, it is said:
“Based upon a statement made in the opinion of the Court below
to the effect that the case of Mondou v. New York, 228 U.S. 1.
was decisive of the constitutionality and applicability to the case of
the Employers’ Liability Law, and, moreover, disposed of a number
of contentions urged in the assignments of error filed below. it is
pressed upon our attention that the court decided and erred in decid-
ing that the Employers’ Liability Law abolished, as to all cases ecom-
ing under its provisions, the defense of assumption of risk, and, also,
that a railroad employee injured in the course of his employment
could avail of the benefits of the statute although at the time he sus-
3—326
18 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY,
tained the injury he was not actually engaged in interstate commerce,
But we think it is plain that the contentions last stated are without
merit * * *, It is unnecessary to recur to the text of the opin-
ion to demonstrate the conclusion just stated, because in any event
the contentions must be overruled, since the benefit of the
30 defense of assumption of risk was accorded to the railway
company at the trial and the right of the plaintiff to recover
was made dependent upon his establishing that at the time he was in.
jured he was actually engaged in interstate commerce.”
It is perfectly clear from the opinion in this case that the doctrine
of assumption of risk was regarded as obtaining, and put before
the jury by the lower court, and the Supreme Court of the United
States says that this was right. In the case at bar the court below
distinctly declined to permit this defense to be put forward by the
railroad company, on the theory that it had been abolished by the
laws of Virginia.
Again the Supreme Court of the United States, in the case of
Gulf, &e., Co. v. McGinnis, decided April 7, 1913, in discussing the
act now under discussion, says:
“It has also been assigned as error that the defense of as-umed
risk was, in legal effect, denied, because the court overruled a mo-
tion to instruct a verdict for the defendant. The defense of as
sumed risk was submitted to the jury under a full and fair general
charge.”
From an examination of the original record of the Supreme Court
of the United States, the full and fair general charge above referred
to was, in part, as follows:
“(3) An employee of a railroad company is held in law to as
sume such risks as are ordinarily incident to the service he engages
to perform, and such others as he knows of or must necessarily have
known of in the ordinary discharge of the duties of his service; but
risks arising from the negligence of the company’s servants or em-
ployees that are chargeable to it are not assumed by an employee,
unless he knows of them or must necessarily have known of them
in the ordinary discharge of the duties of his service.”
Again in the case of American R. Co. v. Birch, 224 U. 8. 544;
56 L. Ed. 879, in discussing this Act the Court says through Mr.
Justice McKenna, as follows:
“Section 3 includes (exciudes?) the defense of contributory
negligence, but requires the damages to be ‘diminished by the
31 jury in proportion to the amount of negligence attributable
to such employee.’ But provides that contributory negligence
is not to be attributable to the employee injured or killed ‘where
the violation by such common carrier of a statute enacted for the
safety of employees contributed to the injury or death of such em-
ployee.’ And by Sec. 4, assumption of risk by the employee is also
excluded in such case.”
There would be no sense in the Court saying that assumption of
risk is excluded in such case if it was excluded in all cases. .
In the case of Mondou vy. New York, &c., Co., 128 U. S., im dis
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. ly
cussing the act now under construction, the Court said at p. 54 (56
L. Ed. 348) :
“True, prior to the present act, the laws of the several states were
regarded as determinative of the liability of employers engaged in
interstate commerce for injuries received by the'r employees while
engaged in such commerce. But that was because Congress, al-
though empowered to regulate that subject, had not acted thereon,
and because the subject is one which falls within the police power
of the states in the absence of action by Congress.” (Citation of
cases.) “The inaction of Congress, however, in no wise affected its
power over the subject.” (Citation of cases.) “And now that Con-
gress has acted, the laws of the states, in so far as they cover the
same field, are superseded, for necessarily that whith is not supreme
must vield to that which is.”
The Supreme Court of Georgia has distinctly held that the de-
fense of assumption of risk was not abolished by the Act of Congress
except in cases where the servant was injured through the violation
by the master of some statute enacted for the safety of employees.
See Bowers v. Southern Ry. Co.. 78 8. FE. 679.
Assumption of risk is a good defense to an action under the Fed-
eral Employers’ Liability Act, except when the earrier’s default
consists in a violation of some statute enacted for the safety of em-
ployees, and such default ha- contributed to the injury or death of
the emplovee in question. Barker v. Kansas City, &e., Co., 129 Pac.
32 This court is also referred to the case of Freeman v. Powell,
144 8S. W. 1034.
It is submitted that this case is on all fours with the case at. bar.
The plaintiff was engaged in interstate commerce, and was injured
through failure of the Railway Company to furnish proper appli-
ances, The court, in discussing the case, savs:
“In the absence of a statute affecting the rule, we think it is not
to be doubted from the unquestioned facts that appellee did assume
the risk. See Mt. Marion Coal Mining Co. v. Holt. 118 S. W. 825;
Choctaw v. MeDade, 191 U.S. 64. But it is insisted that the Court’s
conclusion to the contrary is correct, because of the act of the legis-
lature of the State of Texas approved April 24, 1905.”
The court then gives at length the Texas statute which was con-
strued by the court below to abolish the doctrine of assumed risk
with reference to the case before it. Afterwards the court proceeds:
“If the above act applies. the court’s findings have some support
in the evidence; but we are of the opinion that the rights of the
parties are to be determined by the provisions of the act of April
22, 1908, passed by the Congress of the United States.”
The court then proceeds to give the act of Congress, and then
says :
“Tt thus appears that under the federal statute a complaining em-
plovee to whom the act applies is not relieved from the operation of
the ordinary rule of assumed risk, except in cases where there is a
violation by the carrier of some statute enacted for the safety of an
employee which has contributed to his injury or death, and of this
20 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
there is no contention in this suit. In the respect just noted, the act
of Congress conflicts with the state’s statute which we have quoted.
The power of Congress over interstate commerce is not an open
question, and it extends to all agencies and instrumentalities by or
through which it is carried on.”
33 The court then proceeds to cite a number of authorities,
and then says:
“Tt seems to us that the authorities hereinbefore cited are con-
clusive to the effect that the subject of interstate commerce has been
committed to the national law making power. and that when this
power has heen exercised it is supreme, and excludes any state legis.
lation on the subject.”
The court refused to give instruction marked “B” asked for by
the defendant, which will he found on Record p. 105, and this action
of the court is assigned as error.
This instruction simply sought to have the jury instructed to the
effect that it was incumbent on the plaintiff to show that in allowing
the cinders to pile up from time to time as shown by the evidence,
the Railway Company was acting in a manner different from the
way in which other réatonable and well managed railway companies
acted under similar cireumstances and conditions. The court is
referred to the case of Bertha Zine Co. v. Martin, 93 Va. 807.
Instruction “D.” found on Record p. 106, asked the court to in-
struct the jurv that the act of Congress now under consideration did
not apply to switching movements. This instruction the court re-
fused and this action of the court is assigned as error.
Instruction “EF.” found on Record p. 107. instructed the jury that
if thev believed from the evidence that the cars being moved at the
time of the accident were cars destined to points within the State
of Virginia, and movine from Lawrenceville, Virginia, that then
they should find for the defendant. This the court refused, and
this action of the court is assigned as error. In connection with the
refusal of the court to give this insiruction, the court is referred to
the following cases:
The plaintiff was building a track upon a bridge which was used
by the defendant in both kinds of commerce, and was struck on
another track by a train engaged in intrastate commerce. Held
that the statute did not apply.
34 Pendersen v. Delaware, &e., Co., 197 Fed. 540.
A bridge repairer being struck while repairing a bridge engaged
in interstate commerce, held not to be within the act. Taylor v.
Southern Rv. Co., 178 Fed. 380.
The car which plaintiff was trving to set out was engaged in intra-
state business, though there were other cars in the train engaged
in interstate commerce. Held that the act did not apply. Van
Brimmer v. Texas, 190 Fed. 397,
The undisputed evidence very clearly shows that at the time of the
accident the trainswas moving only two cars, namely, Southern
136532 and N. Y. P. & N. 1352, which were intended to be, and
which were, carried out on this train, and that both of these car
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 21
were intended for points within the State of Virginia, and there
was no evidence that any of the contents of these cars originated
from points without the State of Virginia. Now, it is absolutely
necessary, in order to bring the case of the plaintiff below under
the statute, to show that both the plaintiff and the defendant were
at the time of the accident engaged in interstate commerce.
The court below was asked to set aside the verdict upon the
ground that the verdict was excessive. The act of Congress under
which this action was brought declares that the jury shall diminish
the damages in proportion to the contributory negligence of the
plaintiff in the action. Now the undisputed evidence in this case
shows that this plaintiff attempted to board a moving engine with-
out notifying the engineer. with a water cooler in his arms, and at
a place where he knew cinders had been piled off and on ever since
he had been working for the company, and this too in broad open
daylight and when there was no necessity for his boarding the en-
gine at that particular time, as it was making a switching movement
and necessarily would have to stop and come back after the switeh-
ing movement had been completed.
For the errors above assigned in refusing to set aside the said
verdict, and in entering judgment thereon, and in instructing the
jury as above set out, and in refusing to instruct the jury as re-
uested by the Railway Company as above set out, your peti-
35 tioner prays for a writ of error and supersedeas, and that the
said judgment may be reviewed and reversed, and your peti-
tioner will ever pray, ete.
SOUTHERN RAILWAY COMPANY,
By W. L. WILLIAMS.
I, William Leigh Williams. an attorney and counsellor at law of
the Supreme Court of Appeals of Virginia, do hereby certify that
in my opinion it is proper that the decision in the above entitled case
be reviewed and reversed by this honorable court.
WILLIAM LEIGH WILLIAMS,
Received June 12, 1913.
JAMES KEITH.
Writ of error and supersedeas awarded. Bond $15,000.
JAMES KEITH.
VIRGINIA:
Pleas at the Court House of the County of Brunswick Before the
Circuit Court of said County, on the 28rd Day of April, 1913,
Be it remembered, that heretefore, to-wit: at rules held at the
clerk’s office of said Cireuit Court, on the first Monday in August.
1912, came Ralph B. Jacobs, plaintiff by his attorneys, and filed his
declaration against the Southern Railway Company, which declara-
tion is in the following words:
22 RALPH B. JACOBS vs. SOUTHERN RAILWAY COMPANY.
“VIRGINIA :
In the Circuit Court of Brunswick County.
Second Rules in July, 1912.
“Ralph B. Jacobs, Plaintiff, complains of the Southern Railway
Company, a corporation, Defendant, of a plea of trespass on the case,
for this, to-wit:
36 That before and at the time of committing the wrongs and
grievances hereinafter mentioned, the said defendant had
been and was a corporation, operating a railroad in the State of Vir-
ginia, to-wit: a railroad from the City of Norfolk to the City of Dan-
ville, in the said State, and passing through the County of Bruns-
wick and the Town of Lawrenceville, in the said county; upon,
along and over which said railroad, the said defendant ran, hauled
and operated trains of cars, by means of locomotive engines, pro-
pelled by steam, for the transportation of passengers and freight, in
its business which it then and there conducted and carried on as a
common carrier of passengers and freight.
And the said defendant, as such common carrier of passeagers
and freight, was, at the time of committing the said wrongs and
erievances, engaging incertain commerce, commonly called interstate
commerce, to-wit: certain commerce between certain of the several
states, to-wit: certain commerce between certain of the several terri-
tories, to-wit: certain commerce between certain of the states and cer-
tain of the territories, to-wit: certain commerce between the District
of Columbia and certain of the states, to-wit: certain commerce be-
tween the District of Columbia and certain of the territories, to-wit:
certain commerce between the District of Columbia and a certain
foreign nation or certain foreign nations, to-wit: certain commerce
between certain of the states and a certain foreign nation or certain
foreign nations, to-wit: certain commerce between certain of the
territories and a certain foreign nation or certain foreign nations,
within the meaning, purview and intendment of that certain Act of
Congress of the United States of America, entitled “An Act Relating
to the Liability of Common Carriers by Railroad to their Employes
in Certain Cases,” which was approved on April 2, 1908.
And the said defendant, for the purpose of carrying on and con-
ducting its business and the commerce aforesaid, then and_ there
hired and had in its service, divers employes and servants, to-wit:
locomotive engineers, firemen and other employes, engaged in the
physical operation of its trains, cars and engines, in service requir-
ing their presence upor its trains, cars and engines and in charge of
its locomotive engines. And the said defendant, as such pro-
37 prietor of the said railroad, maintained also in connection
with its said railroad a certain railroad vard at the said town
of Lawrenceville, in the said county, in connection with the main
line of its said railroad, upon which said railroad yard it maintained
and operated sundry side tracks and switch tracks, for the purpose
of operating and shifting its engines, trains and cars, and of loading
a ee ee oe oe ee
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 23
and unloading freight and of receiving and discharging passengers,
and of coupling and uncoupling its engines, cars and trains, and of
making up its trains on the said railroad tracks, on its said yard;
which said railroad vard was a scene of ceaseless activity, and, in
order to carry on their work and promptly discharge their duties to
the said defendant, it became and was necessary for the employes
and servants of the said defendant engaged in and about it- service
aforesaid, to exercise a careful economy of time, and, as far as possi-
ble, utilize every moment of time in the service of the said defend-
ant, and it was necessary, customary and usual for the said servants
and employes of the said defendant engaged by it in and about the
duties and services aforesaid, to board and get upon the engines of
the said defendant while moving at a slow rate of speed upon the
said yard, of all which the said defendant had knowledge, and
acquiesced in and approved thereof.
And the said defendant, being such proprietor of and operating
said railroad, locomotive engines and trains of cars and maintain-
ing and operating said railroad vard and the said tracks and switeh
tracks on said yard, for the purpose of conducting its business and
the commerce aforesaid, and being the employer of such servants
and employes as aforesaid, heretofore, to-wit: on the 19th day of
August, 1911, and for a long space of time, to-wit: one year before
that day, the said plaintiff, at the special instance and request of the
said defendant, had become and was an employe and servant of the
said defendant, engaged and employed by the said defendant in the
capacity, and fo. the purpose of performing the duties, of a fireman
on a certain one of the freight trains of the said defendant, to-wit:
a freight train sometimes designated as train Number 62, and con-
sisting of a certain locomotive engine and tender and divers freight
and box cars; and as such employe and fireman of the said
38 defendant, it became and was the duty of the said plaintiff,
in obedience to the rules, orders and requirements of the said
defendant, to aid and assist in the shifting of the said engine, cars
and train of cars, of the said defendant and in making up the said
train on the railroad yard aforesaid, and in the running and oper-
ating of its said freight train on its railroad aforesaid. And the said
- plaintiff, being such servant, employe and fireman of the said de-
fendant, was, at the time of suffering the injury hereinafter men-
tioned a person employed by the said defendant in such commerce,
to-wit: in the interstate commerce aforesaid, within the meaning,
purview and intendment of the Act of Congress aforesaid, and was
engaged in the service of the said defendant requiring his presence
on its trains, cars and engines. And the said plaintiff is entitled
to the benefit of the provisions of said Act of Congress.
And thereupon it became and was the duty of the said defendant,
through its agents, servants and employes, other than the said plain-
tiff, engaged in another department of the service of the said defend-
ant, to use ordinary care to provide and maintain reasonably safe
railroad tracks, roadbeds, places and ways upon, along and over
which the said plaintiff was required to perform for the said defend-
ant the duties and services aforesaid. And the said plaintiff avers
FS aS Nei TR
24 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
that the said defendant, not regarding its said duty in that hehalf,
carelessly and negligently wholly failed and omitted to perform the
same, and, at the time of, and for a long space of time, to-wit: thirty
days before, inflicting the injury upon the plaintiff hereinafter men-
tioned, the said defendant, through its agents, servants and em-
ployes, other than the plaintiff, last above mentioned, to-wit: its
agents, servants and employes engaged in another department of its
service from that in which the plaintiff was then and there engaged,
carelessly and negligently caused, suffered and permitted a large pile
of loose cinders and ashes to be placed, and to be, remain and aceu-
mulate, upon and alongside the main line of its said railroad track,
and roadbed upon the said cailroad yard, at the said town of Law-
renceville, in dangerous proximity to the said railroad track, to-wit:
a pile of loose cinders and ashes one (1) foot high, seven (7) feet
wide, and thirty (30) feet long, which, from its nature was reason-
ably liable, and might reasonably have been expected by the said
defendant, to cause the servants and employes of the said
39 defendant engaged in performing the duties and services re-
quired of the plaintiff as aforesaid, to stumble, fall and be
injured in the manner in which the plaintiff was caused to stumble,
fall and be injured as hereinafter alleged, of all which the said de-
fendant then and there had notice.
And the said plaintiff avers that heretofore, to-wit: on the said
19th day of August, 1911, while engaged in the performance of the
duties and services required of him by the said defendant as such
fireman as aforesaid, and while the said defendant was engaging in
the said commerce, to-wit: in the interstate commerce aforesaid and
hereinbefore described, and while the said plaintiff was so employed
by the said defendant in such comnierce aforesaid, within the mean-
ing, purview and intendment of the Act of Congress aforesaid, the
said plaintiff, at the said railroad yard, at the said town of Lawrence-
ville, in the performance of his duties and services as such fireman
as aforesaid, and in the usual and customary manner, kuown to, ac-
quiesced in and approved of by the said defendant as afvresaid, at-
tempted to board and go upon the said engine and into the «ab
thereof, while the said engine was moving at a slow rate of speed.
to-wit: at the ratéof not more than four (4) miles an hour, for the
purpose of performing on said engine the duties required of him as
such fireman in the running, shifting and operating of said engine
and train of cars; and while he was so attempting to board and get
upon said engine as aforesaid, the said plaintiff came into contact
with the said pile of loose cinders and ashes, which the said defendant
had negligently caused, suffered and permitted, to be and remain in
close and dangerous proximity to its said railroad track as aforesaid,
and the said plaintiff was caused by the said pile of loose cinders
and ashes to stumble and fall and to slip and be pulled and thrown
down, and under the said engine and train, and then and there,
while the said plaintiff was so thrown down and in a prostrate and
helpless condition and before he could extricate himself from his
position of danger, the wheel or wheels of the said engine and train
of cars ran over, and so severely broke, crushed and mangled, the
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY, 25
right lef of the said plaintiff that his said right leg had to be am-
putated.
And the said plaintiff avers that the act of the said plain-
40 tiff in so attempting to board and get upon the said engine,
while it was in motion as aforesaid, was done by the said
plaintiff in accordance with the usual and customary practice on the
part of himself and other employes of the said defendant, with the
knowledge, acquiescence and approval of the said defendant, and in
accordance with the necessity, recognized and approved by the said
defendant, for economizing and utilizing every moment of time in
the operation of its trains upon the said yard, and could have been
accomplished by the said plaintiff without danger or risk of injury
to himself but for the carelessness and negligence of the said defend-
ant in failing and omitting to perform its duty aforesaid; and the
said plaintiff avers that when attempting to board and get upon the
said engine as aforesaid, he had no knowledge of the dangerous con-
dition of the said place and way, caused by the negligence of the
defendant aforesaid, or of the danger and risk of injury to which he
was thereby exposed, and that he was exercising ordinary care and
pre aution for his own safety, while attempting to board and get
upon the said engine.
And by means of the premises, the said plaintiff became and was
greatly bruised, hurt and wounded, sick, sore, lame and disordered,
and so remained during all that time, suffered and underwent great
pain and was hindered from transacting his lawful business by
him and continued for a long space of time, to-wit: hitherto,
and during that time to be done, performed and transacted, and
has been permanently maimed and disabled in and deprived of the
use of his said right leg, and has been caused to suffer and endure
great mental and bodily pain and anguish, and was thereby also
obliged to pay and expend, and did necessarily pay and expend
divers sums of money, in the whole amounting to a large sum of
money, to-wit: the sum of $100.00, in and about endeavoring to be
cured of the sickness, soreness, lameness and disorder aforesaid, re-
ceived as aforesaid, and other wrongs to the said plaintiff, the said
defendant then and there did. To the Damage of the said plaintiff
Twenty Thousand ($20,000.00) Dollars,
And for this also, to-wit: That before and at the time of com-
mitting the wrongs and grievances hereinafter mentioned, the
41 said defendant had been and was a corporation, operating a
railroad in the State of Virginia, to-wit: a railroad from the
City of Norfolk to the City of Danville, in the said State, and pass-
ing through the County of Brunswick and the Town of Lawrence-
ville, in the said county; upon, along and over which said railroad,
the said defendant ran, hauled and operated trains of cars, by means
of locomotive engines, propelled by steam, for the transportation of
passengers and freight, in its business which it then and there con-
ducted and carried on as a common carrier of passengers and freight,
And the said defendant, as such common carrier of passengers and
freight, was, at the time of committing the said wrongs and griey-
ances, engaging in certain commerce, commonly called interstate
4—326
26 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
commerce, to-wit: certain commerce between certain of the several
states, to-wit: certain commerce between certain of the several terri-
tories, to-wit: certain commerce between certain of the states and cep.
tain of the territories, to-wit: certain commerce between the District
of Columbia and certain of the states, to-wit: certain commerce be-
tween the District of Columbia and certain of the territories, to-wit:
certain commerce between the District of Columbia and a certain
foreign nation or certain foreign nations, to-wit: certain commerce
between certain of the states and a certain foreign nation or cer-
tain foreign nations, to-wit: certain commerce between certain of the
territories and a certain foreign nation or certain foreign nations,
within the meaning, purview and intendment of that certain Act of
Congress of the United States of America, entitled “An Act Relat-
ing to the Liability of Common Carriers by Railroad to their Em-
ployes in Certain Cases,” which was approved on April 22, 1908.
And the said defendant, for the purpose of carrying on and con-
ducting its business and the commerce aforesaid, then and there
hired and had in its service, divers employes and servants, to-wit:
locomotive engineers, firemen and other employes, engaged in the
physical operation of its trains, cars and engines, in service requiring
their presence upon its trains, cars and engines, and in charge of
its locomotive engines. And:the said defendant, as such pro-
42 prietor of the said railroad, maintained also in connection
with its said railroad a certain railroad yard at the said town
of Lawrenceville, in the said county, in connection with the main
line of its said railroad, upon which said railroad yard it maintained
and operated sundry side tracks and switch tracks, for the purpose
of operating and shifting its engines, trains and cars, and of loading
and unloading freight and of receiving and discharging passengers,
and of coupling and uncoupling its engines, cars and trains, and of
making up its trains on the said railroad tracks, on its said yard;
which said railroad yard was a scene of ceaseless activity, and, in
order to carry on their work and promptly discharge their duties
to the said defendant, it became and was necessary for the. employes
and servants of said defendant engaged in and about its service afore-
said, to exercise a careful economy of time, and, as far as possible,
atilize every moment of time in the service of the said defendant,
and it was necessary, customary and usual for the said servants and
employes of the said defendant engaged by it in and about the
duties and services aforesaid, to board and get upon the engines of
the said defendant. while moving at a slow rate of speed upon the
said yard, of all which the said defendant had knowledge, and acqui-
esced in and approved thereof.
And the said defendant, being such proprietor of and operating
said railroad, locomotive engines and trains of cars and maintaining
and operating said railroad yard and the side tracks and_ switeh
tracks on said yard, for the purpose of conducting its business and
the commerce aforesaid, and being the employer of such servants and
employes as aforesaid, heretofore, to-wit: on the 19th day of August,
1911, and for a long space of time, to-wit: one year before that day,
the said plaintiff, at the special instance and request of the said de
fendant, had become and was an employe and servant of the said
RALPH B. JACOBS VS, SOUTHERN RAILWAY COMPANY. 27
defendant, engaged and employed by the said defendant in the
capacity, and for the purpose of performing the duties, of a fireman
on a certain one of the freight trains of the said defendant, to-wit:
a freight train sometimes designated as train Number 62, and con-
sisting of a certain locomotive engine and tender and divers
48 freight and boy cars: and as such emplove and fireman of the
said defendant. it became and was the duty of the said plain-
tiff, in obedience to the rules, orders and requirements of the said
defendant, to aid and assist in the shifting of the said engine, cars
and train of cars of the said defendant and in making up the said
train on the railroad vard aforesaid, and in the running and operat-
ing of its said freight train on its railroad aforesaid. And the said
plaintiff, being such servant. emplove and fireman of the said de-
fendant, was, at the time of suffering the injury hereinafter men-
tioned, a person employed by the said defendant in such commerce,
to-wit: in th- interstate commerce aforesaid, within the meaning,
purview and intendment of the Act of Congress aforesaid, and was
engaged in the service of the said defendant requiring his presence
on its trains, cars and engines. And as an incident to the service in
which the plaintiff was so engaged as aforesaid, it became and was
necessary for the said plaintiff to secure, provide and carry into the
cab of said engine a sufficient supply of drinking water for himself
and the engineer in charge of said engine, while in the discharge
of their duties in running and operating the said engine and train,
to-wit: from the said town of Lawrenceville, to the said Citv of Nor-
folk. And the said plaintiff is entitled to the benefit of the pro-
visions of said Act of Congress. And thereupon it became and was
the duty of the said defendant, through its agents, servants and em-
ploves, other than the said plaintiff, engaged in another department
of the service of the said defendant, to use ordinary care to provide
and maintain reasonably safe railroad tracks, roadbeds, places and
wavs upon, along and over, which the said plaintiff was required to
perform for the said defendant the duties and services aforesaid.
And the said plaintiff avers that the said defendant, not regarding its
said duty in that behalf. carelessly and negligently wholly failed
and omitted to perform the same, and at the time of, and for a long
space of time, to-wit: thirty days before, inflicting the injury upon
the plaintiff hereinafter mentioned, the said defendant, through its
agents, servants and emploves, other than the plaintiff, last above
mentioned, to-wit: its agents, servants and employes engaged in an-
other department of its service from that in which the plaintiff was
then and there engaged, carelessly and negligently caused,
qf suffered and permitted, a large pile of loose cinders and ashes
to be placed. and to be, remain and accumulate, upon and
alongside the main line of its said railroad track, and road bed, upon
the said railroad vard, at the said town of Lawrenceville, in danger-
ous proximity to the said railroad track, to-wit: a pile of loose cin-
ders and ashes one (1) foot high, seven (7) feet wide, and thirty
(30) feet long. which from its nature was reasonably liable, and
might reasonably have been expected by the said defendant, to cause
the servants and employes of the said defendant engaged in perform-
ing the duties and services required of the plaintiff as aforesaid, to
28 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
stumble, fall and be injured in the manner in which the plaintiff
was caused to stumble, fall and be injured as hereinafter alleged, of
all which the said defendant then and there had notice.
And the said plaintiff avers that heretofore, to-wit: on the said
19th day of August, 1911, while engaged in the performance of the
duties and services required of him by the said defendant as such
fireman as aforesaid, and while the said defendant was engaging in
the said commerce, to-wit: in the interstate commerce aforesaid and
hereinbefore described, and while the said plaintiff was so employed
by the said defendant in such commerce aforesaid, within the mean-
ing, purview and intendment of the Act of Congress aforesaid, the
said plaintiff, at the said railroad yard, at the said town of Lawrence-
ville, in the performance of his duties and services as such fireman
as aforesaid, and in the usual and customary manner, known to,
aequiesced in and approved of by the said defendant as aforesaid,
having secured and supplied himself with a can or cooler of drinking
water for the use of himself and the engineer as aforesaid, and havy-
ing said can or cooler of water in his hand, attempted to board and
get upon the said engine and into the cab thereof, while the said
engine wes moving at a slow rate of speed, to-wit: at the rate of not
more than four (4) miles an hour, for the purpose of performing
on said engine the duties required of him as such fireman in the
running, shiftir® and operating, of said engine and train of cars:
and while he was so attempting to board and get upon said engine
as aforesaid, the said plaintiff came into contact with the said pile
of loose cinders and ashes, which the said defendant had neg-
45 ligently caused, suffered and permitted to be and remain in
close and dangerous proximity to its said railroad track as
aforesaid, and the said plaintiff was caused by the said pile of loose
cinders and ashes to stumble and fall and to slip and be pulled and
thrown down and under the said engine and train, and then and
there, while the said plaintiff was so thrown down and in a prostrate
and helpless condition and before he could extricate himself from
his position of danger, the wheel or wheels of the said engine and
train of cars ran over, and so severely broke, crushed and mangled,
the right leg of the said plaintiff that his said right leg had to be
amputated.
And the said plaintiff avers that the act of the said plaintiff in s
attempting to beard and get upon the said engine. while it was in
motion as aforesaid, was done by the said plaintiff in accordance with
the ustial and customary practice on the part of himself and other
employes of the said defendant, with the knowledge, acquiescence
and approval, of the said defendant, and in accordance with the
necessity, recognized and approved by the said defendant, for econ-
omizing and utilizing every moment of time in the operation of its
trains upon the said yard, and could have been accomplished by the
said plaintiff without danger or risk of injury to himself but for
the carelessness and negligence of the said defendant in failing and
omitting to perform its duty aforesaid; and the said plaintiff avers
that when attempting to board and get upon the said engine as afore
said. he had no knowledge of the dangerous condition of the said
place and way, caused by the negligence of the defendant aforesaid,
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 2¢
or of the danger and risk of injury to which he was thereby exposed,
and that he was exercising ordinary care and precaution for his own
afety, while attempting to board and get upon the said engine.
And by means of the premises, the said plaintiff became and was
greatly bruised, hurt and wounded, sick, sore, lame and disordered,
and so remained and continued for a long space of time, to-wit:
hitherto, and during all that time, suffered and underwent great
pain and was hindered from transacting his lawful business
46 by him during that time to be done, performed and trans-
acted, and has been permanently maimed and disabled in and
deprived of the use of his said right leg, and has been caused to suffer
and endure great mental and bodily pain and anguish, and was
thereby also obliged to pay and expend, and did necessarily pay and
expend divers sums of money, in the whole amounting to a large
sum of money, to wit: the sum of $100.00, in and about endeavoring
to be cured of the sickness, soreness, lameness and disorder aforesaid,
received as aforesaid, and other wrongs to the said plaintiff, the said
defendant then and there did. To the damage of the said plaintiff
Twenty Thousand ($20,000.00) Dollars.
And therefore he brings his suite.
BUFORD, LEWIS & PETERSON, p. q.”
And at another day, to-wit: At a Circuit Court held for the County
of Brunswick, on Tuesday, the third day of September, 1912, the
following order was entered :
“This day came the parties by their attorneys, respectively, and
the defendant moved the Court to quash the interrogatories hereto-
fore propounded by the plaintiff to the defendant Company, which
motion was argued by Counsel.
And the Court having heard the argument of counsel doth sus-
tain the said motion, and it is ordered that the interrogatories be
quashed, to which action of the Court the plaintiff then and there
excepted, and tendered to the Court his first bill of exceptions, which
was thereupon signed, sealed and enrolled and made a part of this
record.
Thereupon the defendant pleaded not guilty in which issue the
plaintiff joined.
And thereupon the defendant moved the Court to require the
plaintiff to file the particulars of his claim within fifteen days from
the rising of this Court, and that the defendant file its grounds of
defense within fifteen days thereafter, which was accordingly |
ordered. i
By consent of parties by counsel, this case is continued
47 until the next term of this Court and is set for trial on the
24th day of October, 1912.”
And, at another day, to-wit: At a Circuit Court continued and
held for the County aforesaid. on Tuesday, the fourth day of March,
1913, the following order was entered: ,
“This day came the parties by their attorneys. And thereupon
came a jury, to-wit: Miles Taylor, J. S. Jones, John W. Matthews,
30 RALPH B. JACOBS VS, SOUTHERN RAILWAY COMPANY,
L. H. Raney, Huff Harris, W. E. Smith and T. B. Reams, who
were selected, impannelled, and sworn im manner provided by law,
and having fully heard the evidence, are adjourned until to-morrow
morning at ten o’clock.
And the further hearing of this case is continued until to-morrow
morning at ten o’clock.”
And, at another day, to-wit: At a Circuit Court continued and
held for the County aforesaid, on Wednesday, the 5th day of March,
1913, the following order was entered:
“This day came again the parties by their attorneys, and the jury
sworn on yesterday appeared in court, in pursuance of their ajourn-
ment, and having heard the argument of counsel, retired to their
room to consider of their verdict, and after a short while, returned
in court and reported a verdict in these words: “We, the Jury, find
for the plaintiff, and assess his damages at $12,000.00. W. EF.
Smith, Foreman.”
And thereupon the defendant, by counsel, moved the court to set
aside the verdict. of the jury, and grant it a new trial upon the
grounds that the verdict is contrary to the law and the evidence, and
for misdirection of the jury, and for failure to instruct the jury
as requested by the defendant, and for errors of the court in rejecting
evidence offered by the defendant, and in admitting evidence over
the objection of the defendant, and because the verdict is excessive
and the rights of the defendant under the act of Congress under
which the action is brought have been denied, and for other errors
appearing on the face of the record. And the court not being
advised of its judgment upon said motion, doth continue the same
for argument and decision until the next term of this court.”
48 And, now at this day, to-wit: At a Circuit Court held for
the County aforesaid, on Tuesday, the 24th day of April,
1913, the following order was entered:
“This day came again the parties, plaintiff and defendant, by
counsel, and the court having duly considered the motion of the
defendant, and the grounds thereof, which was made at the [eb-
ruary Term, 1913, and the hearing of which was continued to this
term, to set aside the verdict of the jury and grant it a new trial
doth overrule said motion and decline to set aside the said verdict,
and to grant the defendant a new trial. And the defendant, by
counsel, noted an exception to the ruling of the court in refusing
to set aside the verdict and grant to it a new trial; and thereupon
it is considered by the court that the plaintiff do recover of the
defendant the sum of Twelve Thousand Dollars, with interest
thereon from the 5th dav of March, 1913, and his costs by him in
this behalf expended.
And thereupon the defendant presented in open Court its several
Bills of Exception numbered 1 and 2, which having been signed
and sealed by the Judge of this Court, now, on motion of counsel
for the defendant, it is ordered that the said several bills of exception
be and they hereby are made a part of the record in this case. And
RALPH B. JACORS VS. SOUTHERN RAILWAY COMPANY. 31
on motion of the defendant, by counsel, the said judgment of the
court is suspended for ninety days from the rising of the court, upon
the execution by the defendant or someone for it, before the Clerk
of this Court, with security to be approved by him, of a bond in the
penalty of Iifteen Thousand ($15,000.00) Dollars conditioned as
provided by law, in order to enable the defendant to present a
petition to the Supreme Court of Appeals for a writ of error and
supersedeas in this case.
And it is further ordered by the court that the bill of particulars
of the plaintiff and of the grounds of defense of the defendant be
now filed nunc pro tune, the same by consent of the plaintiff and
defendant to be considered as having been filed in apt time.”
Which Bill of Particulars of the plaintiff and of the Grounds of
Defense of the defen lant are in the following words:
49 Bill of Particulars.
“The plaintiff sets forth the following particulars of his claim in
addition to the facts and claims set forth in his declaration :
1. That the injury to the plaintiff alleged in the declaration oc-
curred on the yard of the defendant at the town of Lawrenceville,
in the county of Brunswick, State of Virginia, at a certain place on
the track of the said defendant, near the depot of said defendant,
and eastward thereof.
2. That the freight train designated as freight train numbered
62 in said declaration, at the time of the said injury and then
and there being made up and shifted preparatory to setting out and
as incident to setting out on said run, embraced among other inter-
state shipments within the meaning of said Act of Congress, con-
tained the following shipments, to wit:
a. Shipments of merchandise from a certain place, to-wit: Spencer,
in the State of North Carolina, to certain points in the State of
Virginia, to-wit: stetions along the line of the division of said de-
fendant’s railway from the town of Lawrenceville, aforesaid, to
Pinners Point, Virginia, inclusive, which shipments were contained
in a certain car designated as New York, Philadelphia and Norfolk
or N. Y. P. & N., number 1352.
b. Shipments of merchandise from a certain place, to-wit Ox-
ford, in the State of North Carolina, to Emporia, in the State of
Virginia; shipments of merchandise, to-wit: a box of clothing, from
Drake’s Branch, in the State of Virginia, to the citv of New York,
in the State of New York, and shipments of merchandise, to-wit:
four tierces of tobacco, from Chase City, in the State of Virginia,
to the city of Philadelphia, in the State of Pennsylvania, which
shipments were contained in a certain car designated as Southern
car, number 80790.
ce. That at the time of said injury, the said train contained other
shipments of interstate commerce within the meaning of the said
Act of Congress.
50 3. That the said defendant at the time of the said injury
as respects the Norfolk and Danville division of its said
32 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
railway, on which said injury occurred, was engaged in interstate
commerce within the meaning of the Act of Congress aforesaid, and
the said plaintiff was at the time of said injury employed by the
said defendant in such interstate commerce, the said division of said
railway being partly in the State of Virginia and partly in the State
of North Carolina, and the function of said freight train number 62
being to haul and transport from the town of Lawrenceville. Vir.
ginia, thence eastward to Pinners Point in said State, by means of
freight cars operated by said defendant, shipments of freight from
places without the State of Virginia, brought to the said town of
Lawrenceville by the said defendant, and shipments of freight origi-
nating in said State of Virginia west of the said town of Lawrence-
ville, and destined to places in other states and territories outside of
the State of Virginia, and to be hauled by means of said freight train
from the said town of Lawrenceville in pursuance of said interstate
transportation ; and that one of the functions of the said train as ap-
pointed by said defendant, was to haul and transport all interstate
shipments originating at any point between Lawrenceville, Virginia,
and Pinners Point, Virginia, and that at a certain station east of
the said town of Lawrenceville on said railway, to-wit: at Emporia
station and at Suffolk station, both in the State of Virginia, ship-
ments of merchandise and freight on the day on which said injury
occurred, were received at said stations and loaded upon said train
destined to points outside of the State of Virginia, and were by
means of said train conveyed for transportation and delivery to other
transportation companies in transit to said destinations.
BUFORD, LEWIS & PETERSON,
Attorneys for Plaintiff.”
Grounds of Defense.
“Pursuant to an order heretofore entered in this cause, the defend-
ant, by its sttorney, files this its Grounds of Defense.
51 The Soutaern Railway Company, the defendant above
named, relies upon the pleas heretofore filed in this cause,
and for further defense says that each and every allegation of the
declaration, and each count thereof, is untrue, and that neither the
plaintiff nor the defendant at the time of the accident complained of
in the declaration was engaged in interstate commerce, ‘but, on the
contrary, were engaged in intrastate commerce; that the said plain-
tiff was guilty of gross contributory negligence in attempting to
board the engine with a water cooler filled with water in his arms,
and was also guilty of gross contributory negligence in attempting
to board the engine from a pile of cinders along the track; and was
also guilty of gross contributory negligence in running along the
track and in attempting to board the engine without looking and
seeing the pile of cinders, which could have been observed with any
caution and care on his part; that the said pile of cinders had been
allowed to accumulate in the same manner and in the same place as
they were at the time of the accident for many years prior to the ac
cident, and that these facts were well known to the plaintiff, and
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 33
that he assumed the risk of danger from said pile of cinders, if there
was any danger in allowing them to remain there.
Respectfully submitted,
W. L. WILLIAMS,
TURNBULL & TURNBULL, p. d.”
~~ D> = DOD Cee wD
Bill of Exceptions No. 1.
Be it remembered that on the trial of this cause, the plaintiff and
defendant, respectively, introduced, to maintain the issues on their
part, the following testimony :
In the Circuit Court of Brunswick County, Virginia.
R. B. Jacoss
Vv.
SouTHERN Raitway CoMPANy.
Testimony.
Before Hon. J. F, West and Jury.
LAWRENCEVILLE, VirGinia, March 4, 1913.
Present: Messrs. Buford, Lewis & Peterson, for the plaintiff;
Messrs. W. L. Williams and Turnbull & Turnbull, for the defendant.
D. 8S. Phlegar, Shorthand Reporter, Norfolk, Virginia,
Kk. W. Ligon, on behalf of the plaintiff, being duly sworn, testified
as follows:
Examined by Mr, Buroxp:
Q. Mr. Ligon, what position do you hold?
A, Agent for the Southern Railway, at Lawrenceville.
Q. Agent for the Southern Railway Company at Lawrenceville?
A. Yes, sir.
Q. Tell the court and jury how the train, the freight train made
up here on the morning of the L¥th of August, LY11, is designated?
A. It is known as train 62.
Q. What is the run of that train’?
A. From Lawrenceville to Pinners Point.
Q. What was that train composed of?
Mr. WiLLiaAMs: Now, inay it please your Honor, | object unless
he knows by independent memory, unless he has a memorandum
rede by himself from which he could give that information.
ashe Court: | suppose that he has reference to whether freight
train or passenger.
Mr. Witiiams: He said what composed it, and | suppose he
meant the names and number of cars.
5—326
34 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY,
53 Mr. Burorp: Yes.
Mr. WitxtAMs: This occurred on the 19th of August,
1911, a cousiderable length of time back. I say any witness can
only testify by having independent recollection, or having some
memorandum made at the time, by which he can refresh his
memory.
The Courr: The position seems sound.
Mr. Burorp: I assume that he is going to speak with reference to
his records.
Mr. WituiaMs: I then ask for the production of the record.
By Mr, Burorp:
Q. Answer my question, Mr. Ligon, from records, if you have
them.
A. (Witness examines the records.)
Mr. Witxr .ms: Will you permit me to ask him whether he made
that record himself?
The Court: Yes.
By Mr. W1ILLIAMs:
Q. Did you make that record yourself, Mr. Ligon?
A. No, sir.
Mr. WiturAms: I say that he cannot refresh his memory from it.
By the Court:
Q. Who made the record, if you know?
A. The consist of the train was made by the operator on duty at
that time, and checked by the conductor as to what particular cars
he moved.
By Mr. Burorp:
Q. By the operator—one of the agents of the company?
A. He was in the employ of the company.
Q. Is that the regular record of the Southern Railway Com-
pany?
54 A. Yes, sir.
Q. Is that what the Southern Railway Company, and all
its officers, rely upon as showing what was the train on that date?
A. That is what we use at the office.
Q. Is that the record produced from the office at Lawrenceville?
A. Yes, sir.
Q. That is a part of the record of your office, is it?
A. Yes, sir.
Q. Who was the man who actually made that record?
A. 1 could not tell now, Mr. Buford, unless I examine my time
sheet to see who worked that day, as I do not recognize the hand-
writing.
Q. Have they been in the possession of the company, at Lawrence
ville, all this time?
A. Yes, sir.
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 35.
Q. Will they be returned by you to the company, and be kept as
a part of the records of the office here?
A. Yes, sir.
Q. Are they under your control, as agent of the company?
A. Yes, sir.
Q. You say the conductor in charge of the train checked that
list, and his check shows what cars actually went into his train?
A. Yes, sir.
Q. Who was that conductor?
A. Conductor Renfrow.
Q. Is Mr. Renfrow’s signature on there?
A. No, sir.
By Mr, Burorp: We will call Mr. Renfrow to the stand just now
to identify the record.
R. G. Renrrow, on behalf of the plaintiff, being duly sworn, tes-
tifies as follows:
Examined by Mr. Burorp:
Q. Mr. Renfrow, will you look at that list, please, sir, and say
whether—are you the conductor of train No, 62?
A. Yes, sir.
55 Q. Were you the conductor on the 19th day of August,
1911?
. Yes, sir.
. The morning on which Mr. Jacobs received his injury?
. Yes, sir.
. Did vou check that list of cars?
A. Yes, sir.
Are those the cars that composed the train?
. Yes, sir.
And the train on which Mr. Jacobs was serving as fireman?
. Yes, sir.
. What cars then composed the train?
. Those that have my cross mark in this line down here.
Q. Will you please read them out, and give the name and num-
Southern 10753; A. C. L. 29093; N. Y. P. & N. 1352; South-
ern 1 133479: Southern 30790; Southern 11956; Southern 136532.
E. W. Ligon, takes the stand for further examination.
By Mr. Burorp:
Q. Will you tell the jury now, Mr. Ligon, by reference to your
records, how those cars, just mentioned by Mr. Renfrow, came to
Lawrenceville, and when they were brought here?
Mr. WitiiaMs: Now, may it please your Honor, I desire to object
to any inquiry or reference to cars before they came to Lawrence-
ville. The point T desire to make is this: The Act under which they
are suing says that both the plaintiff and defendant must, at the
36 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY,
time of the accident, have been engaged in interstate commerce,
Now, I ts» it that as far as they can go back into the history of the
moveme’ | of this train, to undertake to bring this particular action
under the Act of Congress, is the making up of the train here in
Lawrenceville. If there was any engaging in interstate commerce,
it was at the time they began to make up the train here at
56 Lawrenceville, to take it somewhere else. If you are going
to depart from that rule, how far back are you going in trae.
ing the movement of these cars? Are vou going into Danville? If
you are going to Danville, why can’t you go to Greensboro, or any
other place from which they may have started, one or two weeks pre-
vious? In my judgment the inquiry should be confined not to
when the cars arrived at Lawrenceville (that is immaterial), but
what was done with them when they started away from Lawrence.
ville.
Mr. Burorp: If your Honor please, I think my friend, Mr. Wil-
liams, takes rather too narrow a view.
Mr. Witiiams: Possibly so. We are working on new ground,
This is the first case I have tried under this law, and I do not pre.
tend to know all about it.
Mr, Burorp: My friend is extremely frank, if your Honor please,
he admits that this ground is too narrow.
The Court: The objection is overruled.
Mr. WitirAms: IT take an exception.
By Mr. Burorp:
Q. Now, answer the question, please, how did these cars come to
Lawrenceville—when were they brought there, and by what train?
A. I think all of them but one were brought in by train No. 64
the day before.
Q. Which was it that was not brought in by train 64?
By Mr. WitLitAMs (interposing): Do you know it of your own
knowledge, or on any record made of your own?
A. I have no record of my own, but from the record of the office.
Mr. Wittiams: T am compelled to renew my objection. They
are attempting to show where these cars came from on 64.
57 This witness has no independent recollection, and the only
way you can do would be to have the witness who made the
original record. That is my point. Here is a record which is
proven to be a record of the company, relied on by the company, and
used by the company. That is all true, but the rule of law is that
you must call the man who made the original record. It is a good
rule of law, and why? If there was any fraud about it, he is the
only man you have the right to cross examine, and see if there was
fraud.
Mr. Burorp: What I would like to ask Mr. Ligon is this:
(Mr. Burorp:)
Q. Is the man working at the office now who made that record?
A. No, sir.
Q. Where is he?
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 37
A. As I said a while ago, I don’t know. I don’t recognize his
handwriting, and the only way I can tell is to examine further rec-
ords at the office.
Q. Further records at the office?
A. Yes, sir.
Q. Well, I wish you would examine the further records during
the recess. Without pressing that question right now, I am going
to ask you did you mention train 64?
By the Court: Yes.
By Mr. Burorp:
Q. You mentioned that?
A. Yes, sir.
Q. Tell the jury what train 64 is?
A. Train 64 is what is known as a local from the west, run-
ning from Danville to Lawrenceville.
Q. A local freight train running from Danville to Lawrenceville?
A. Yes, sir.
Q. At what time, before the accident, did this local freight train,
known as No. 64, come to Lawrenceville from Danville?
A. Sometimes in the afternoon of the 18th—the day before.
Q. Of August 18th?
A. Yes, sir.
58 Q. What is the practice of the company with reference
- to the freight cars that are brought to Lawrenceville by train
No.
Mr. WitiiAms: Now, may it please vour Honor, T desire to renew
the objection to that question. That is entering into an investiga-
tion not as to No. 62, on which this plaintiff got hurt, but on No.
64. T take it. your Honor will rule in the same way vou have done,
but IT do not desire to appear to omit the objection.
The Courr: T understand you want to know what became of
the cars on 64?
Mr. Burorp: Yes, whether they were taken further.
Nore.—The objection is overruled, and an exception is noted
by counsel for the defendant.
By Mr. Burorp:
Q. What is the practice of the company, Mr. Ligon—what was
the practice, at the time of the accident, with reference to the freight
cars that were brought from Danville to Lawrenceville, or from Dan-
ville and points between Danville and Lawrenceville to Lawrence-
ville, on the evening of August 18th? How were they carried east?
A. They were switch listed to the eastbound trains.
. Which train
A. Solids to the through trains and others to local trains.
. What is the number of the local train?
. 62,
Q. So then a part of the cars that are brought into Lawrenceville
from the Danville division, by means of train 64, are, according to
38 RALPH B. JACOBS VS, SOUTHERN RAILWAY COMPANY,
the practice of the company, put into trein 62 which goes from
Lawrenceville east to Pinners Point?
A. That is correct.
Q. And now you say the cars you have mentioned were put into
train 62 under those circumstances?
A. Yes, sir.
By Mr. Burorp: I believe that we have no other questions for
ws Ligon, if you will look up the records that we were talking
about.
(No Cross Examination. )
59 J. C. Rice, on behalf of the plaintiff, being duly sworn,
testified as follows:
Examined by Mr. Burorn:
Q. Mr. Rice, what position do you hold?
A. As agent for the Southern Railway Company, at Jeffress,
Virginia.
Q. Have you records of your office at Jeffress, Virginia, with
you?
A. Yes, sir. Do you want me to get them?
Q. Yes.
A. (Witness produces same.)
Q. Mr. Rice, by whom were those records kept?
A. A part kept by myself and a part kept by my wife, who was
clerk at the time.
Q. Will you examine these records, please, sir, and tell us whether
they show that any cars mentioned by Mr. E. W. Ligon, the agent
at’ Lawrenceville, as composing train 62, were a part of train 64
when they passed Jeffress station on the 18th of August 1911?
Mr. WiiitaMs: May it please your Honor, | object. Jeffress is
west of Lawrenceville. Here is an inqury as to what was done on
the day previous to this accident at a point west of Lawrenceville.
I submit that that is not material to this inquiry.
The Court: It is a junction point, as 1 understand, where the
road enters North Carolina.
Mr. Pererson: The object of this testimony is simply this: Our
object is, according to the bill of particulars that we have filed, to
ascertain the character of the occupation of this railroad at the
time of the accident to the plaintiff, and the fact that at the time
of the accident was sustained he was employed by the railroad en-
gaged in interstate commerce. To do that we want to show what the
function of this train 62, when it arrived at Lawrenceville, was, and
so far as shipments were concerned it is a continuation of that train
64, We want to show that the train was engaged in interstate
60 commerce not only by reason of the function of taking on
any freight between here and Pinners “‘vint, if offered.
whether in or out of the State of Virginia, but also that it had in its
possession merchandise in transit from North Carolina, from Drakes
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY, 39
Branch, Chase City en route to Philadelphia and New York; that
it was in continuous transit from one train to another.
The Courr: Objection overruled.
Mr. WixuiaMs: I take an exception.
By Mr. Burorp:
Q. Will you please answer the question.
Nore.—The yuestion is read as follows: “Will you examine those
records please, sir, and tell us whether they show that any cars men-
tioned by Mr. E. W. Ligon, the agent at Lawrenceville, as compos-
ing train 62, were a part of train 64 when they passed Jeffress sta-
tion on the 18th of August, 1911?”
A. You have the iist Mr. Ligon mentioned?
Q. Yes. I will read the list. He said train 62 was composed of
Southern car 10753.
A. I have no record of that.
. A.C. L. No. 29093.
A. No record.
. N.Y. P. & N. car 1352.
A. No record.
. Southern car 133479.
. No record of that.
. Southern car No. 30790.
A. I have a record of that. Just a moment. (Witness refers to
records): Yes, I have a record of that, August 18, 1911.
Q. 30790?
A. Yes, 30790.
Q. What shipments did that car contain, Mr. Rice?
A, That was a car in 64 when it reached my place, and we loaded
into that car three shipments from Oxford, North Carolina,
61 one destined to Union Level, Virginia, two of which were
destined to Emporia, Va.; one shipment from Drakes Branch
to New York, and another shipment from Chase City to Phila-
delphia.
Q. What were those shipments?
A. My records do not show, but Mr. Campbell, another witness,
handled the original waybill. We kept the number of the car and
waybill, but not the original article.
Q. So your records show that Southern car No. 30790 contained
a shipment from Oxford, N. C., to Union Level, Virginia?
A. Yes, sir.
Q. It also contained a shipment from Oxford, N. C., to Emporia,
Virginia?
A. Two shipments.
Q. It also contained shipment from Drakes Branch to the City
of New York?
A. Yes, sir.
Q. It also contained a shipment from Chase City, Virginia, to the
City of Philadelphia, in the State of Pennsylvania?
A. Yes, sir.
40 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
Q. You have no record of 11956? My impression is that that
was taken up after the train passed your place?
A. No record of it.
Q. And no record of 136532 Southern.
A. No.
Ra They were not composed in train 64 when they passed your
place?
A. No record of it if it contained it.
. It contained no shipment?
1 only loaded into one car on that train.
Now, Mr. Rice, where is Jeffress Junction?
Jeffress Junction is 46 miles west of Lawrenceville.
Is it on the line between Danville and Lawrenceville?
. Yes, sir.
What state?
. In Virginia.
In Virginia?
Yes, sir.
What junction—what other road is there?
The Keysville and Durham branch of the Southern Rail-
way.
62 0. The Keysville and Durham plies between Richmond,
Virginia, and Durham, North Carolina?
A. Yes, sir.
Q. Is the town or city of Oxford, North Carolina, on the Keys.
ville & Durham division?
A. Yes, sir, 26 miles south of Jeffress.
G. The state line passes a little south of Jeffress?
A. Yas, sir.
Q. Is it, or not, a fact that freight cars coming from that division
of the Southern, coming from North Carolina and points south, are
transferred to the Atlantic and Danville division, to the Norfolk
and Danville division, we call it now, and hauled through Jetfress
to I.awrenceville, and from there to Norfolk?
A. Yes, sir, we transfer both carload and less than carload ship-
ments at that place.
Q. So it is engaged in that kind of conimerce between the two
states?
A. Yes, sir.
Q. I believe the court takes judicial notice of the geography of
the state, but please state to the jury whether or not Lawrenceville is
between Emporia and Jeffress Junction?
A. Yes, sir. Lawrenceville is 46 miles east of Jeffress, and Em-
poria is 67 miles east; it is east of Lawrenceville. It is 46 miles to
Lawrenceville and 67 to Emporia, making Emporia east of Lawrence-
ville.
Q. Will vou tell the court and jury whether the Atlantic and
Danville division
A. (Interposing.) The Norfolk division of the Southern Railway
is the term.
>OPOPOPOrO>O
R
r
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 41
t Q. The term “Norfolk division” embraces the road between Dan-
ville and Norfolk?
A. Yes, sir.
By the Court:
Q. Does it embrace anything else?
A. A branch line from Emporia to Claremont, and also, | think,
a part of the division consists of business handled over the Selma
division over the Coast Line.
63 By the Court:
Q. The Norfolk division don’t mean this line, then, exactly?
A. The Norfolk and Danville instead of the Atlantic and Dan-
ville.
By Mr. Burorp: We call it now, for the purposes of this case,
the Norfolk and Danville division. Does that division lie wholly
in the State of Virginia?
A. No.
Q. What state does it traverse?
A. North Carolina and Virginia.
Q. So that between Norfolk and Danville this road runs partly
in North Carolina and partly in Virginia?
A. Yes, sir.
Q. Well, now, would passengers and freight passing over this
line from Danville to Norfolk necessarily pass through the states
both of Virginia and North Carolina?
A. Yes, sir.
(No Cross Examination. )
C. L. CaANDLER, on behalf of the plaintiff, being duly sworn, testi-
fied as follows:
Examined by Mr. Burorp:
Q. Mr. Candler, what is your position—what position do you
hold, if any, with the Southern Railway Company?
A. General Agent Norfolk and Pinners Point terminals.
Q. Lave you any records, Mr. Candler, showing what cars com-
posed train No, 62, which, I understand, is the freight train made
up at Lawrenceville, and runs from Lawrenceville to Pinners Point,
oi the 19th day of August, 19117
A. | have a record of what that train is said to have been com-
posed of. I did not make the record myself.
Q. Who made the record?
A. One of the clerks connected with the Pinners Point oflice. I
do not remember which one.
Q. Is that one of the reces’s of the oflice?
A. Yes, sir.
Q. One of the official records of the Southern Railroad Com-
pany?
i A. Yes, sir.
Q. What does that record show?
6—326
42 RALPH B. JACOBS VS, SOUTHERN RAILWAY COMPANY,
Mr. Wituiams: I object, may it please your Honor. He must
have some independent recollection of it himself, or he must speak
from a record made at the time. It is not claimed that he has any
independent recollection, or any knowledge of it. He has testified
that he did not make that record.
The Court: Objection sustained.
By Mr. Burorp:
Q. Where is that clerk, Mr. Candler?
A. I do not know the individual, or the name.
Upon request of counsel for the plaintiff, the court, at 12:50,
adjourned until 2:15 for lunch.
Afternoon Session.
Marcu 4, 1912.
The court met at the expiration of the recess.
Present: Same parties as heretofore.
R. G. Renrrow, recalled for further examination on behalf of the
plaintiff, testified as follows:
Examined by Mr. Burorp:
Q. Mr. Renfrow, you stated awhile ago that Southern car No.
30790 was one of the cars in the train which you took from here to
Norfolk?
A. Yes, sir.
Q. Mr. Rice has testified that that car contained some shipments
that were destined for New York and Philadelphia. You did
not unload those shipments at any intermediate stations between
here and Norfelk, did you?
A. Not thot I know of.
Q. In the natural course of transit, they would have been un-
loaded where?
65 A. At Pinners Point.
Q. And that is the Norfolk terminal?
A. Yes.
Q. Just on this side of the Elizabeth River?
A. Yes, sir.
A. B. Grices, on behalf of the plaintiff, being duly sworn, testified
as follows:
Examined by Mr. Burorp:
Q. Mr. Griggs, what is your position?
A. Agent of the Southern Railway Company at Danville.
Were you agent for the Southern on the 18th and 19th of
August 1911?
. Yes, sir,
At Danville, Virginia?
Yes, sir.
Do your records show that N. Y. P. & N. car No. 1352 was a
ereri
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 43
part of freight train No. 64 that came from Danville to Lawrence-
ville on the evening of the 18th of August, 1911?
Mr. WituiaMs: IT make the same objection; unless the witness
knows of his independent memory, or from a record made at the
time, he is an incompetent witness.
The Court: T think that position is correct.
Mr. Burorp: We note an exception as to this witness, and as to
the other two.
Mr. Peterson: We want to except for this reason. We are put-
ting the witness on, necessarily, as an employee of the defendant
company. All this information is information which we elicit from
the company’s “vn records, Tt is a case entirely contradistinguished
from a case where a person produces his own books, which are in
the nature of self-serving declarations. They are the official records
of the company, and whether true or false the company can only
say. They are recognized among the company’s official
66 archives, and the burden shifts to the company to show that
they are incorrect.
Mr. Burorp: We want to state what we expect to prove. What we
expect to prove by this witness is that the train we have just men-
tioned
Mr. Witiiams: To state what vou expect to prove, if the ob-
jection is to the evidence, it is proper, but here the objection is to the
competency of the witness.
Mr. Burorp: As I understand the rule of the Court of Appeals.
it is when we offer a witness, the bill of exceptions should state what
we expect to prove by the witness. What we want to prove, I started
to say, was that N. Y. P. & N. car 1352 was a part of train 64 that
came from Danville to Lawrenceville on the evening of August 18,
1911, and that this same car was put in train 62, the one from which
the plaintiff received his injury, and that it contained a shipment of
merchandise from Spencer, North Carolina, for delivery to inter-
mediate stations between Danville and Norfolk. That is the fact
which we want to prove.
The Court: What was his answer—that he did not keep the
record ?
Mr. WituiaMs: He has never answered.
By Mr. Burorp:
Q). Did you, in fact, keep the records vourself?
A. No, sir.
Q. Who kept them?
A. It was kept in the vardmaster’s office, but I could not say by
whom.
Mr. Peterson: You see we could never in the world find out.
By Mr. Burorp:
Q. That is one of the official records kept for the Southern Rail-
toad Company, is it not?
A. Yes, sir.
44 RALPH B. JACOBS VS, SOUTHERN RAILWAY COMPANY.
Q. It is regarded by the Railroad Company and its oflicers as
being an official and authentic record, is it?
A. Yes, sir.
Q. In all the business dealings of the company, where it
has any occasion to refer to this particular record, this would be
treated by it as importing the truth, wouldn’t it?
A. Yes, sir.
Q. When you take it from this court room, you will take it and
restore it to its place as a part of the files of the company?
A. Yes, sir.
The Court: I sustain the objection for the present. I reserve the
right to consider the matter further before the trial closes.
Mr. Burorp: We reserve the exception. The same explanation
we make as to the other witness, except we wanted to show by Mr.
Candler that Southern car 133479 had two bags of peanuts shipped
from Franklin, Virginia, to Hillsboro, N. C.; two buggies shipped
from Franklin, Virginia, to Kershaw, N. C.: one crate of wheels
from Franklin, Virginia, to Johnson, North Carolina; that Southern
car 30790 contained a box of clothing shipped from Drakes Branch
to New York City and contained four tier-s of tobacco shipped from
Chase City, Virginia, to Philadelphia, Pennsylvania. I will state
to the court that those are the two shipments Mr. Rice testified to.
I think Mr. Rice’s testimony covers the point, but we wanted to
supplement his testimony by Mr. Candler.
By the Court:
Q. What is that paper you have in your hand?
A. A record of the cars composing train 64 out of Danville on
August 18, 1911, which was made by the vardmaster’s office.
67
(No Cross Examination. )
J. S. Beraman, on behalf of the plaintiff, being duly sworn, testi-
fied as follows:
68 Examined by Mr. Burorp:
Q. Mr. Bergman, what is your position, or what was your position
on the 19th day of August, 1911?
A. Superintendent of the Norfolk division Southern Railway.
Q. Does that embrace the division between Danville and Nor-
folk?
A. Yes, sir.
Q. Tell the jury what were the functions and duties of train
62 which left Lawrenceville on the morning of August 19, 1911,
for Pinners Point?
A. Train .62 is a local freight train made up at Lawrenceville,
running between Lawrenceville and Pinners Point, to do the local
work, load or unload freight, do the necessary switching at all sta-
tions, picking up and setting off cars.
Q. Does train No, 62 start at Lawrenceville?
A. Yes, sir.
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 45
Q. Train No. 64 comes in from the Danville end?
A. Yes, sir.
Q. Train No. 64 does not go further than Lawrenceville?
A. No, sir.
Q. Then, as I understand vou, 62 is made up of trains that come
from the Danville end?
A. 62 is made up partly of trains coming from the Danville end,
or it might be cars originating at Lawrenceville.
Q. In other words, train 62 is made up of cars originating at
Lawrenceville, or cars brought to Lawrenceville from the western
end?
A. Yes, sir.
By the Courr:
Q. Is, or not, train 62 a continuation of train 64, so far as any
cars are concerned which come from the west?
A. Not necessarily, Judge.
Q. IT mean ears carrving local freight—not full cars?
A. In some instances. ves; in some instances cars coming in on
64 go through on 62.
By Mr. Burorp:
Q. When does train 64 leave Danville?
69 A. It leaves Danville at 6:15 in the morning.
Q. When does it arrive at Lawrenceville?
A. I think 3:45 or four o'clock, or something about that time; I
don’t know exactly.
Q. In the afternoon?
. Yes, sir.
. Then, when does 62 leave Lawrenceville for Norfolk?
A. It ought to leave at six A. M.
. When does it arrive at Norfolk or Pinners Point?
. 3:30.
. P. M.?
. Yes, sir. ,
Any shipments destined from any stations along the line be-
tween Danville and Norfolk. for points outside of the State of Vir-
ginia, would, according to the functions of train 64 and train 62,
be put on those trains, wouldn’t they?
A. Local shipments?
Q. Local shipments or interstate commerce?
A. Yes, sir.
Q. Why are they called local trains, as distinguished from through
trains?
. Because they principally do local work.
. They stop at all the stations, I understand?
A, If there is any work.
. To be done at the stations?
. Yes, sir.
. The through trains do not stop at all the stations, do they?
. Not unless they have something to set off or to pick up.
45 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
Q. And that would be a solid car?
A. Generally. yes, sir.
.Q. The Norfolk and Danville division connect at Danville with
the main line of the Southern which runs from Washington all the
way down through the southern states?
A. Yes. they connect there.
Q. And what connection has it at Norfolk with points outside
of the state?
A. Well. they connect with the various boat lines there, or other
railroads.
70 Q. Connect with the boats plying between New York. Bal-
timore, Philadelphia and Washington?
A. Yes, sir.
Q. And other railroads engaged in interstate ecommerce?
A. Yes.
Cross-examination.
By Mr. WituiaMs:
Q. Mr. Bergman, are there any other freight trains out of Law-
renceville going east except 62?
. Yes, sir.
What are they?
. We have a through train out of here known as 88.
88?
Yes, sir.
Any other?
That is all.
By the Court:
Q. That is a through freight. vou say, is it?
A. Yes, sir, considered through freight.
POrPOP>Oo>
By Mr. Witiiams:
Q. What time is that due to leave Lawrenceville?
A. Eight P. M.
Q. If there are cars in the yard at Lawrenceville ready to go east,
to Pinners Point, does 88 carry them?
A. Yes, sir, most always.
F. J. Ovtver, on behalf of the plaintiff, being duly sworn, testified
as follows:
Examined by Mr. Burorp:
Q. Mr. Oliver, what position did you hold on the 18th and 19th
of August, 1911?
A. Agent for the Southern, at Suffolk.
Q. At Suffolk, Virginia?
A. Yes, sir.
Q. Can you tell the court and jury, of your own personal
71 knowledge, whether any interstate shipments were made on
train No. 62 on the 19th day of August, 1911?
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 47
A. I eannot.
Mr. WILLIAMs: May it please your Honor, I object to this line
of examination. This was long after the accident. That was wav
down yonder in Suffolk, and it must have been hours after the
accident. The question is whether the plaintiff and defendant were
engaged in interstate commerce at Lawrenceville at the time of the
accident, and how can they do that by inquiring whether they had
itin Suffolk long afterwards? ;
The Courr: I think that is permissible. I think it tends to show
whether they were engaged in interstate commerce.
Mr. WituiaMs: I except.
J. H. Eaeiesron, on behalf of the plaintiff, being duly sworn,
testified as follows:
Examined by Mr. Burorp:
Q. Mr. Eggleston, were you a member of the train crew of train
§2 on the morning of the 19th of August, 1911?
A. Yes, sir.
Q. That is to say train 62 of the Southern Railroad Company,
which started from Lawrenceville to Pinners Point on that day?
A. Yes, sir.
Q. What position did you hold, Mr. Eggleston?
A. Brakeman.
Q. You were brakeman on that train?
A. Yes, sir.
Q. Who composed the train crew?
A. Captain Renfrow, Clift Williams and FE. H. Pulliam and my-
self were the train crew.
Q. Who was the fireman?
A. Mr. Jacobs.
Q. Mr. Ralph B. Jacobs, the plaintiff?
A. Yes, sir.
72 Q. Is not it the phraseology of the railroad people that a
fireman is a member of the train crew?
A. Yes, sir.
Q. He was also a member of the train crew?
A. Yes, sir.
Q. He was an employee of the Southern Kailroad Company, as
fireman on this train?
A. Yes, sir.
Q. Did you see the accident which resulted in the loss of his
leg?
A. Yes, sir.
Q. Please tell the jury how it occurred?
A. As near as Tecan. T was on top of the cars as they were being
pulled out of the siding, and I saw Mr. Jacobs as he came out to
get on the engine. It seemed, the best IT could see, from the dis-
tance I was, that he aimed to set his cooler of water on the deck of
the engine. As to whether he ever set it up there, 1 am not able
to say positively. I saw him, and he seemed to have fallen, or missed
48 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
his hold, or omething, and fell, and the journal box on the tank
struck him, and rolled him over, and I do not think he got under
the train entirely until after the tank of the engine had passed him,
Then he rolled down underneath the front car, and the best I could
see of him the box knocked him, and rolled him until I think
possibly one or two of the cars had passed him before his leg was
cut off.
Q. His leg was cut off, was it?
A. Yes, sir.
Q. Where did that accident occur, Mr. Eggleston?
A. Right above the passenger station.
Q. In the yard here at Lawrenceville?
Yes, sir.
«. When you say above, you mean east of the passenger station?
A. Yes, sir.
By the Courr: Do you mean east or west?
By Mr. Burorp: East.
By the Courr: He said “down.”
73 By Mr. Burorp: It is either up or down. ‘The general
tendency is down.
A. I could not say how far it was from the station. It was not
very far.
(Mr. Burorp:)
Q. Comparatively a few yards?
A. Yes, sir.
Q. Mr. Eggleston, that was on the 19th of August, 1911?
A. Yes, sir.
q. I asked, | believe, if that was not train 62?
A. Yes, sir.
Q. Now, what caused Mr. Jacobs to fall, so far as you can tell
the jury?
A. Well, I really could not say exactly what caused him to fall.
He must have lost control of his feet, by aiming to set his cooler
up on the deck of the engine, and those cinders under him there
probably
Q. Coming in contact with the cinders? .
A. Coming in contact with them might have had something to
do with it.
Q. What kind of cinders were they—what were the cinders?
A. Cinders where the passenger trains cleaned their fires there—
No. 2 and and No. 4; I think that is all that cleaned their fires
there. Nats
Q. Where do the other engines clean their cinders? _
A. No. 1 and No. 3 1 think clean theirs on the west side of the
depot. : . -
Q. What sort of pile of cinders was it?
A. Cinders that came out of the fire box.
Q. How high were they?
A. I reckon probably 18 or 20 inches high.
Q. All loose cinders?
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY, 49
A. Well, yes, they were practically loose. They had been packed
down some by walking over them.
Q. For what length of distance did they extend up and down the
railroad track?
A. I really could not say the exact distance. I never took any
measurement of it, but I suppose something like 30 feet. :
Q. How wide were they from the rail up—as | understand it, it
was on the north side of the track?
74 A. Yes, sir.
Q. How wide were they from the northern rail up this
way?
i. I reckon, to the best of my judgment, probably five or six feet;
may be seven feet.
Q. So, then, here was a pile of cinders five or six or seven feet
wide, about 30 feet long, lying alongside of the rail, and about 18
or 20 inches deep?
A. Yes, to the best of my judgment.
Q. That he came in contact with?
A. Yes, sir.
Q. He stumbled there and fell under the train?
Mr. WivuiaMs: | don’t know that he said that.
By Mr. Burorp:
Q. What did you say?
A, I say when he set his cooler of water—or, his intentions were,
the best I could see, to set his cooler of water on the deck of the
engine, he came in contact with something that caused him to fall.
I could not say definitely that the cinders threw him, or how it
occurred,
Q. Do you know whether he set the cooler down on the deck
of the engine, or not?
A. I thought that he did, but | was some little distance from him.
I could not say positively that | know that he did set it down.
Q. What was your position’?
A. I was on top of the train getting the brakes off the cars as
they were being pulled out of the yard.
Q. How long had the cinders been there, do you know?
A. Well, I could not say positively, Mr. Buford. They accumu-
late there from time to time. Sometimes they stay there longer than
others. It just depends on the amount of them that has got out
there,
Q. Had the train been completely made up at the time of the
accident?
A. I don’t think it had. 1 do not think we had quite finished
making the train up. In fact, | am positive that we had not. 1
think we made a switeh or two may be after the accident.
75 Q. What time of day was the accident”
A. Tt was something between six and seven o'clock, I
think, or between five and six. Captain Renfrow can tell you better
than I can about that. I don’t remember exactly what time the
accident. occurred.
7—326
50 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
Cross-examination.
By Mr. WitxiaMs:
Q. Mr. Eggleston, you were asked just now about what time, and
you said you could not remember the exact time; was it sunset?
A. It was getting light; I think the sun was up.
Q. Now, Mr. Eggleston, how long had you been working here as
brakeman on the Southern Railway?
A. Well, off and on since 1903, I believe.
Q. Now, tell the jury during all that period if these cinders had
been piled up there off and on as they were when the accident
occurred ?
A. Yes, sir, off and on ever since I have been there those cinders
have been accumulating there.
Q. You say that is ever since 1903?
A. I think so.
Q. Do you know how long Mr. Jacobs has been working here on
this yard as fireman? j
A. I could not say I know exactly how long he has been here.
Q. You can’t tei! exactly, but give an impression?
A. Somewhere near two years, I reckon.
Q. Now, Mr. Eggleston, how close to the middle of that cinder
pile was Mr. Jacobs when he fell?
A. Well, I could not say the exact spot. It appeared to me to be
somewhere near the middle of it, somewhere near the middle of the
cinder pile.
Q. You have known Mr. Jacobs a good long time, haven't you?
A. I have only known him since he came to Lawrenceville.
Q. You think it has been about two years?
A. It has been over two years now. I do not know how long he
had been here when the accident occurred.
76 Q. Do you know about how long he had been working here
before this accident occurred?
A. No, sir. That is what I told you a minute ago, I don’t know
exactly how long he had been here when the accident occurred,
I have known him over two years. I knew him when he came here
and up until now.
Q. Now, Mr. Eggleston, with reference to the well—there is a
well up to the northward?
A. Yes, sir.
Q. With reference to that well and the track, was Mr. Jacobs
in line with the well as you go straight from the well to the track?
A. I thought he was when I saw him, but I have learned since
that I was mistaken in the place that he got his water.
Q. When you first saw him, what was he doing?
A. Going to the engine, and I was confident that he got his
water from Mr.
Q. In going to the engine, when you first saw him, did he have
to cross the cinder pile to get to the engine?
A. Yes, sir.
ay
he
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY, 51
By the Court:
Q. Where did he get the water from?
A. Well, he told me, I think
Mr. WiLuiAMs: It is contrary to the law to tell what he said. He
is going on the stand, and can ‘testify to that.
Witness: I can’t savy I know where he got the water.
R. B. Jacoss, the plaintiff, being duly sworn, testified as follows:
Examined by Mr. Burorp:
Q. Mr. Jacobs, are you the plaintiff in this case?
A. Yes, sir.
Q. What position did you hold, Mr. Jacobs, on the 19th day of
August, 1911?
A, Fireman.
7 Q. Did you receive the injuries that are described in the
declaration in this case?
A. Yes, sir.
Q. Tell the jury all the facts and circumstances under wlich you
received that injury?
A. Well, to begin with I was called at five o’clock. I got down
to the roundhouse, and changed clothes, and got my overalls on,
and went on and got on the engine, and got the engine ready to
leave the vard. We left the shop vard at six o’clock, and pulled up
on the main line, and pulled up to the tank and got water. Then
we pulled up above the depot, and I got my fire ready.
Q. You got water for the engine?
A. Yes, sir, to use in the boiler.
rf That was to use in the engine?
. Yes, sir,
n Not the water you got afterwards before the injury?
No, sir. We commenced switching, and I took the water
ew and got off the engine up at the depot, and started to the
house to get water. T went up the hill to Mrs. Moody’s, the place I
boarded, and intended to get my breakfast and dinner at the same
time. Then I come on back across the bridge, and come down by
Captain Moody’s—in front of Captain Moody’s—not Moody’s, but
Harrison’s,—and came down the railroad road—I don’t know what
street it is, and come across the track on the crossing. At the time
the train was pulling out of the last track. So I waited until the
train was pulling up there, and aimed to catch it, and when I aimed
to catch it I made three or four steps to get on it, you know, and I
got to the cinder pile before T knew it, and I tripped, and went under
the engine.
Q. What tripped you?
A. The cinder pile.
Q. Did you eat breakfast at your boarding house that morning?
A. No, sir.
Q. You said you went there to get your breakfast and dinner
ea a ol
52 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY,
A. Yes, sir, in a bucket.
Q. Did you get it?
A. No, sir.
78 Q. You did not get your food?
A. No, sir, I didn’t get anything but water.
Q. You got a cooler of water?
A. Yes, sir.
Q. What sort of cooler was it?
A. I suppose the cooler was about that long (indicating), and
about that large around (indicating), with a handle to it, made like
a bucket.
Q. A tin cooler?
A. Yes, sir.
It would hold about how much water?
Not over a gallon.
Where were you getting that cooler of water from?
At Mrs. Moody’s.
Why?
For drinking purposes.
For who?
Myself and the engineer.
In the cab?
Yes, sir.
Did the Railroad Company supply you with drinking water
on the run?
A. No, sir, we had to get it ourselves.
Q. How long had that been the practice of the company to supply
vourself with water that way?
A. Ever since I have been on the road.
Q. So it was a part of the practice of the road for you and the
engineer to supply yourselves with a can of water to drink on the
trip from here to Norfolk?
A. Yes, sir.
Q. Where was your boarding house?
A. Mrs. Moody’s.
Q. That is just this side of the overhead bridge?
A. Yes, sir, right at the corner of Captain Moody’s store.
Q. Then, as I understand you to say, you went over the over
head bridge?
A. Yes, sir, back the back gate, and over the overhead bridge,
and to the station.
Q. And crossed there?
A. Yes, sir.
Q. And saw the train coming along?
79 A. Pulling out of the sidetrack by the depot—not by the
side of the depot, but at the west en
Q. Coming along the track to the east end of the depot?
A. Yes, sir.
Q. And you stood there, and I understood you to say undertook
to get on the engine as it came along?
CPOPOPOPord
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 53
Mr. WrtuiaMs: I have not objected, but I must object to that
line of examination as distinctly leading.
The Court: I think it was leading. The objection is sustained.
By Mr. Burorp:
Q. Then you got across the railroad?
A. Yes, sir, and IT got across the railroad track before the train
got to the depot. It was about the west end of the depot.
Q. Then, on which side of the track were you on—the north or
south side?
A. The north side. I come down on the south side and crossed
over.
By the Court:
Q. I thought when he got back there that he was on that side?
A. No, sir. I can catch a train better on the left side.
By Mr. Burorp:
Q. Had the train started out?
A. No, sir.
By the Court:
Q. Was it on the side track or main line?
A. It was pulling on the main line. It was just about on the
main line at the time I was hurt
By Mr. Burorp:
Q. How fast was the train moving, do you know?
A, Just about as fast as anybody could walk, that is pretty peart
walking; not over three or four miles and hour at the most.
80 Q. State whether or not it was customary for the trainmen
to get on and off the engine when it was going that wav?
Mr. WituiaMs: I object to that, may it please your Honor; unless
it is shown that the officers of the company knew and acquiesced in
it, it would not be competent.
By Mr. Burorp: I was going to follow it up.
Q. State whether or not that was done with the knowledge of the
officers?
A. It has been customary ever since I have been on the road, and
they all know it, and I have seen it done hundreds of times a day, |
reckon.
Q. Was there any rule of the company forbidding your getting on
a train moving that way?
A. T never saw any.
Q. Did they ever furnish you a rule book?
A. No, sir. ;
Q. All during your service you were never furnished with a rule
A. No, sir.
Q. Were you ever instructed not to?
A. No, sir.
54 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY,
Q. When you started to get on the engine, how far were you from
the edge of this pile of cinders?
A. I was about the further side of the crossing, and the cinder pile
commencing on the east end of the crossing. I was about the dis
tance from here to you from the cinder pile when I aimed to catch it,
Q. That would be somewhere about——
A. About seven feet.
Q. From the edge of it?
A. Yes, sir. |
Q. The crossing, that is the crossing that goes from Front Street, _
the street that the Clairborne Hotel is on, down?
A. Yes, sir, down at the deport. |
Q. Now, what kind of cinder pile was it, Mr. Jacobs? Describe
the cinder pile to the jury.
81 A. To the best of my knowledge is was about eighteen or
twenty inches, or may be twenty-four inches deep, and as
long as across this room, and about the distance from here to Mr.
Peterson, the width of it.
Q. Now, how did those cinders give way under your feet? Were
they piled up close to the rail?
A. Yes, sir, right up against the rail. They sloped from the rail,
and come up this way (indicating).
Q. Was it a steep slope, or slanting?
A. Steep.
; Q. Describe to the jury exactly how those cinders caused you to
all?
A. As I caught the engine, I made several steps, and as I hit
the cinder pile they commenced miring just like mud, and it caused
me to fall, and when I fell in the cinder pile the journal box kept
hitting, and I couldn’t get up. I tried, but couldn't.
Q. Why couldn’t you?
A. Every time I made an effort the cinder pile gave way with
me.
Q. Do you know which car ran over your leg?
A. I could not say for certain, but I think it was the first car. |
didn’t go clear under the engine, but went down by the journal
box, and after the engine passed I rolled between the engine and the
car down by the rail, and I could not tell which car caught me, be-
cause everything hit me under there.
Q. Which leg was it that was cut off?
A. The right.
Q. It has to go in the record; of course the court and jury can
all see it, but how high above the knee?
A. About two inches I guess, or three inches,
. Three inches above the knee?
. Yes, sir.
. How old were you, Mr. Jacobs, when this injury occurred?
Twenty-three.
You were twenty-three when you were hurt?
Yes, sir.
Did you suffer much mental and physical pain?
OPO>Ore
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 55
A. I suffered very much physical pain, and mental, too?
Q. Have you any profession or professional business?
A. No, sir.
82 Q. How long were you laid up, Mr. Jacobs, from this in-
jury?
A. Let co see. I was hurt the 19th, and I got out about the 17th
of April, I think, on crutches.
Q. Something like four weeks?
A. Yes, sir. The leg never healed until April, 1912.
Q. Mr. Jacobs, was there anything to have prevented you from
getting out of the way of the train but the cinder pile?
A. No, sir.
Q. If you had fallen without stumbling on the cinders?
A. I would have fallen clear of the track.
Q. Did you commence to stumble at all until you came in con-
tact with the cinders?
A. No, sir.
Q. You did not?
A. No, sir.
By the Court:
Q. As I understand you, you claim the cinder pile made you
stumble and fall, and when you went to get up you were struck
by the piece on the tender?
A. No, sir, I fell down behind the cinder pile. The cinder pile
was sloping, and T fell down by the journal box, and the train was
passing, and I rolled down next to the rail.
By Mr. Burorp:
@. When you say you fell behind, do you mean you fell between
the cinders and the wheel?
A. Yes, sir.
Q. The slope of the cinders caused you to roll down next to the
wheel?
A. Yes. sir.
Q. If there had been no cinders there, but you had fallen from
some other cause, could you have gotten out of the way, out of
danger?
A. Yes, sir.
By the Court:
Q. Were the cinders which you stumbled over somewhat loose, or
packed ?
A. Yes, sir, somewhat miry like. They were mixed with the
sparks—sparks out of the front of the engine.
83 By Mr. Burorp:
Q. Were you conscious, when you started to get on that engine,
of any danger to you from coming in contact with this pile of
cinders?
A. No, sir.
56 RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY.
Q. Was it in your mind at all?
A. No, sir.
Q. Did you know that there was a pile of cinders there?
A. IL had a knowledge of it, of the cinders being there, but I did
not know that it was dangerous. I had forgotten them being there
at the time. I was watching when I was going to get on the en-
gine—watching my feet, where 1 was going to step, and was not
noticing the cinder pile.
Q. That was not in your mind, as I understand it?
A. No, sir, it was not in my mind.
By the Court:
Q. Did you say the train was then fully made up and ready to
leave?
A. No, sir; I guess it had about five or six cars at the time I was
hurt.
By Mr. Burorp:
Five or six cars attached to it?
. Yes, sir.
What were you getting on the engine for?
To attend to my duties.
To attend to your duties as fireman?
Yes, sir.
Who was the engineer?
. Mr. L. N. Stephenson.
. Was it customary for the engine, when it was shifting and
making up trains like that, to stop for the men to get off and on?
No, sir, I have never seen it done in my life.
What are your present means of making a living?
I haven’t got any.
You haven’t got any?
No, sir.
OPOPOrere
POPOoPr
By the Court:
Q. What salary did you receive as fireman?
84 A. They are paid according to the trip. I made anywhere
from $60.00 to $100.00. Sometimes I would not work all
the time. It was according to the trips | made during the month.
Cross-examination.
By Mr. WILLIAMS:
Q. Mr. Jacobs, when did you go to work with the Southern?
A. February 17th, I believe, 1910. To the best of my knowl
edge and belief it was the 17th of February.
Q. Had you ever seen that cinder pile, Mr. Jacobs, accumulated
there before the accident like it was at the time of the accident?
A. No, sir.
Q. What was the difference?
A. It was larger.
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 57
Q. How much larger?
A, A good deal larger. I could not exactly tell how much larger,
but it was a good deal larger than I ever saw it before.
Q. When did you notice that it was so much larger?
A. I noticed it a day or two before.
Q. Before the accident?
A. Yes, sir.
Q. Why did you, after you had ee to Mr. Moody’s—you say
you went up there to get your breakfast?
_ A. To get my breakfast and dinner and a cooler of water.
. Did you get your breakfast?
. No, sir.
Q. Why not?
A. Because they didn’t have it. They had not finished it,
. Did I understand you did not expect to eat your breakfast,
but expected to get it in a bucket?
A. Yes, sir.
Q. Why did you go on the south side?
A, On the north side.
Q. Moody’s is on the north side?
A. Yes, sir.
Q. Why did you go across on the south side?
85 A. I had to climb a fence and come across a big steep
bank, so I come across and went right down the road.
Q. When you saw the engine pulling up on the main track, going
eastwardly, what did you understand the engine was going to do?
How far did you expect it to go before it stopped?
A. There is no telling.
Q. How many cars, Mr. Jacobs, if you remember, were, at that
time, attached to the engine?
A. About five or six.
Q. They were pulling out of one of the side tracks on to the main
line?
A. Yes, sir.
Q. What was the object of doing that?
A, Switching cars to get them in place.
Q. In order to do that, how far would that engine move up the
main line?
A. If it stopped exactly the length of the cars, I could not tell
you exactly.
Q. If the object was to get the cars out of the side track, would
not it move up the main line far enough to come back to get the cars
on some other track? .
A. To clear the switches it was coming out of. but they didn’t
always do that.
Q. What would be the object of going further east after the hind-
most car had gotten fully on the main line?
A, Sometimes you can’t see the brakeman in giving signals, and
you want to see.
Q. The engineer would not go purposely any further than that.
would he?
8—326
Oe
&
58 RALPH B. JACOBS VS, SOUTHERN RAILWAY COMPANY.
A. No.
Q. So when you saw the engine coming, you knew it was going
to stop as soon as the rearmost car cleared the switch, didn’t you?
A. Yes, sir.
Q. You knew that. After it cleared the switch, what would haye
been the next movement of that engineer, in the ordinary way of
making up trains? A
A. He would have backed out.
Q. He would have backed right down where you were?
86 A. He would have been running the same. He would have
been running when he passed me again.
Q. While they are making up the trains on the yard, whose duty
is it to take the signals from the brakeman? ;
A. The engineer and fireman both, if they are switching, from
their sides. If from the fireman’s side, it is the fireman’s duty.
Q. If they were doing that switching while you were off getting
your breakfast, you could not take those signals, could you? —
A. No, sir. The signals, in switching from this end, are always
given from the engineer’s side. ;
Redirect examination.
By Mr. Pererson:
Q. What do you mean—I didn’t catch it exactly—what did you
mean by saying the signals were given from the engineer’s side?
A. In the east end here the signals are given from that side.
Q. Why are the signals from that side?
A. You can see better from that side, and most of the targets
are on that side that you turn the switches from. There are one or
two on this side, but they always run across, and turn the target,
and then run across and give the signal.
Q. This train had five cars attached to the engine at the time?
A. Five or six.
Q. Now, where is the target or switch—I mean the target which
operates the switch, on which the engine and five cars were moving?
A. Near the west end of the depot.
Q. Just about the depot? ,
A. Somewhere near the west end of the depot.
Q. If you had not boarded the engine there, you would have had
to go five car lengths and the length of the engine down?
A. Yes, down towards the overhead bridge. If I had walked
there, by the time | got there it would have been moving back this
way. ,
87 Q. It is not customary for the engineer to wait for you at
any particular place?
A. No.
Recross-examination.
By Mr. WILLIAMs:
Q. You said you started working there in 1910, in February.
You had been working there about eighteen months then?
A. Yes, sir.
RALPH B. JACOBS VS. SOUTHERN RAILWAY COMPANY. 59
Q. During that period had they been cleaning out ashpans and
piling these cinders up during all that period of time?
A. Yes, sir.
Q. That was the way section people did it, wasn’t it?
A. Yes, sir.
By Mr. Prererson:
Q. It is the custom of the railroad to discharge the cinders from
trains two and four at this point?
A. Yes, sir.
By Mr. WILLIAMS:
Q. Do you remember what time it was just before you were hurt?
A. I can come pretty near telling you. It was 6:20 or 6:25.
Q. Was the sun up?
A. Yes, sir.
Joux A. Mattory, on behalf of the plaintiff, being duly sworn,
testified as follows:
Examined by Mr. Burorp:
Q. Mr. Mallory did you see the accident to Mr. Ralph B. Jacobs,
hich occurred on the morning of the 19th of August, 1911?
A. Yes, sir. It happened in two minutes after I arrived at the
station.
88 Q. Tell the jury, as nearly as you can, what cause
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