# Transcript of Record — Jacobs v. Southern R. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0156%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1916 - **Citation:** 241 U.S. 229 ## Text me (24,517) 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. CaA [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0156%3A1. Public record. Not legal advice.