Transcript of Record — Seaboard Air Line R. Co. v. Renn

(25,056)

| 3UPREME COURT OF THE UNITED STATES

4 OCTOBER TERM, 1916.

No. 773.

BOARD AIR LINE RAILWAY, PLAINTIFF IN ERROR,

v8.

J.T. RENN

/IN ERROR TO THE SUPREME COURT OF THE STATE OF NORTH

EB. CAROLINA.

INDEX.

Original. Print

ascript of record from the superior court of Wake county. . 1 1

i NN 6 sg dais a0 basa he da cob ite heses bbe wee es 1 1

NN hs 6 5 Cab 60h ewan deeb Av eee Soe Oe RH 2 2

EN EEL TOE TE LOLS ER OP REE 2 2

NE Shi Gey 6 aba beh eee'd ns Cie vee beebsion knee aa 3 2

| eee eee eee eee ee eee 5 4

| Amendment to complaint.............seeeeeeee cece eeees 7 5

Objections to amended complaint...................0000- 9 7

Answer to amendment to complaint...................085 10 7

TIERS. 5 ig vio. 515 Vis's'd V.0/one 046 PX 6006 0 5es or eb Wann 11 8

ee ei Ue acne e Coheed washes se peuhsieeues 12 9

ee Se oe ached Cac whet eben wee pwees vnaeen 12 9

meet 00, G6t aside verdict, GtC.....ccccccccccccsvcsccece 12 y

ee ca sie ade he eeosin oveebasm ed Bases 13 10

ES Goh sieeh a6 ecwts WOsee sb ae Raw mecewe nba wayie 14 il

Defendant’s statement of case on appeal................. 15 il

ee we SS shoe hanaediuRed ached ee on 15 11

ee Ue APTS: 65 05.04.09 60% High 600 bed bed eee 28 19

IN, GO) COMINMIING 5 os so oc 0's ato phew ebb vane eolee 89 26

bD & Derwei_er (INC.), PRINTERS, WASHINGTON, D. C., Marcu 8, 1916.

IO RNIN Tomek

a OT sn PIN «

:

*

il INDEX.

Original. Pzint

Answer to amendment to complaint.................. 42 ®

PONG OL TV. TATUAG. 6 oii. ccc te scccccnssscees 43 9

AM PMG das «oki babasiuees ss eee 48 39

Re ec MN ibieckie sired 4 5's's6.8 KN Kees 00000 52 35

L. H. Abernethy....... ede eRr Sos seren ss 54 87

J. T. Renn (recalled)... ..ccscccesses oe 56 8%

SR ME REON SSS eke set eb esneeteeses 58 39

ily he, Es EPEC 656-55 so de'nccceccdeveee 61 4]

EES WERE DEOMNOUPOS to vv.cscceccvcanses 65 44

RT RN Coda 5 bs bed 6 4K CsA Oe eee ba 67 46

ia BROOD ARQOUMONE S55 cna vederersccias 67 46

Bane et We MAORI son ignite vces 6beedes 68

De Wr 0, RONUOIN os5 os ive sve acioisesaee 70 48

Raped INE crac dcid pine 6 6.0.00 6 445.0 4-060 76 52

MIE TENEDMNED S cacl © d.c:5'b 0k 6 6 6:0 nies 5.3.6 0% 81 55

Mee AEs IO nese betcrapens piwwens 006 81 55

el a INC cdl bes brs & 6.6% 60s 60 hoe Re 82 56

Eire ENN C Bia-e os 5-01h. 6'5-018.5-b'6 010 4 b10 a 6 00000 82 56

a Aka, Odes CHOCHMOU) 55s nc30cs000ceer00 4 57

Dr. C. M. Hazen (recalled)..........s0. 83 57

Dr. William Moncure (recalled)........ 84 58

Dr. J. M. Burke (recalled)............. 85 58

Defendant's requests for instruction................. 86 59

IMEI “Vigra al, bicia! Gra, kialb-@ 0.4.0 6-0 0b ba 06.060b.00<'se'a0-0 8 60

LG ACA e Wa se 6g Si tale «06h chee 0s poe abe wav aveve 112 75

Us hod eee Aie'e Kee era 6.60 ¥4'ss 6650000045028 114 76

Exceptions grouped and assignments of error......... 115 77

Judge's certificate to case on appeal...............2.. 127 85

ad gaa Ss n'a hs a.p ee ob 6 60-0 000.060 ¥00%% 05 128 5

i CR ine e 6 ak 6s 540 54600 000 00b6 se beuseseseses 129 85

aT pS Fhe dee ss 6.64 66s 6564.06 400.55 0606s 000080 130 86

NG REIN AES ahs, CRIMONIEIIIE 55 ccc cc cccccceccsvccvvcesvber 146 96

re Fe CE Is Puls Splanlard 56.0'5'0.4 606s 60s00 obs bbs 6000 tebe 158 105

ene CN MEUOE so recede cc deccccevbcrtevsevesvoce 159 105

EASE EEE OVE CNEOR 5.6505 cctv ceccccceccbdoscccecccieese 161 107

Assignment of errors and prayer for reversal.................. 163 107

ON 16 PN he'd 00's 00's bd Kce'S eo bberee i oes oo» 186 118

eG Sroidia'bi6sa's 418.6'e'b's.3 0.64 s 6 eorh es ve.scbcovess 182 119

IES 1.0 d 6 ba isi ©. 4s 0 010c6b dee pe eb sbeebs cease 183 120

eto oad se scs kc ncs Cts tebe bibecsecéece «oe 185 120

eee cae eke basses de bontceredseoeees ee 121

: Oe ee . . —_ omnes see

e PP OT NON ELA SS MTT SOM I TE ed NRIOL LE LE ETE ITT EE LIT

a ee ee RE a I i i ne

SEABOARD AIR Li-tE RAILWAY VS. J. T. RENN. 1

1 Seventh District.

No. 259.

RENN

against

S. A. L. Ry.

(From Wake.)

Before F. A, Daniels, J. Defendant Appealed.

Caption.

Be it remembered, that at a Superior Court begun, continued and

held, in and for tiie County of Wake, State of North Carolina, at

the court house in the city of Raleigh, on the 13th Monday in March,

1915, it being the 31st day of May, 1915, before Llonorable F. A.

Daniels, Judge presiding, the following proceedings were had, to-

wit:

Summons for Relief.

Nortu CAROLINA,

Wake County:

In the Superior Court.

J. T. Renn

against

Seaspoarp Air Line Raitway.

State of North Carolina to the Sheriff of Wake County, Greeting:

You are hereby commanded to summon Seaboard Air Line Rail-

way, the defendant above-named, if it be found within your county,

to be and appear before the Judge of our Superior Court, at a court

to be held for the County of Wake, at the court house in Raleigh, on

the third Monday after the first Monday of March, 1913, it being

the 24th day of March, 1913, and answer the complaint, which will

be deposited in the office of the Clerk of the Superior Court

2 of said county within the first three days of said term; and

let the said defendant take notice, that if it fail to answer

the complaint within the time required by law, the plaintiff will

apply to the Court for the relief demanded in the complaint.

lereof fail not, and of this summons make due return.

Given under my hand and seal of said court, this 14th day of

March, 1913.

(Signed ) MILLARD MIAL,

Clerk Superior Court.

1—773

’ HE tap spire _ —_

OEE LAG ERS FL ITOR INR ROSE ALR He tn oe pr ig a VALOR RRND ge sep € P

2 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

Prosecution Bond. |

We acknowledge ourselves bound unto Seaboard Air Line Rail.

way, the defendant in this action, in the sum of two hundred dollars;

to be void, however, if the plaintiff, J. T. Renn, shall pay pay to the

defendant all such costs as the defendant may recover of the plain.

tiff in this action.

Witness our hands and seals, this 8th day of March, 1913.

(Signed) J.T. RENN. (SEAL.)

(Signed ) T. T. PEATROSS. (seat.)

(Signed ) J. R, FEADY. (SEAL. )

Return on Summons.

Received March 14, 1913; served March 14, 19138, by reading

the within summons and delivering a copy of same to W. T. Hunt

ley, Agent at Raleigh, N. C., for Seaboard Air Line Railway.

J. H. SEARS,

Sheriff Wake County.

By H. H. CROCKER, D. 8S.

And on the 26th day of March 1913, J. T. Renn, by his attorneys,

R. N. Simms and J. C. L. Harris, comes ane complains as follows:

3 Complaint.

Nortu CaRo.Lina,

Wake County:

Superior Court, March Term, 1913.

(Title of Cause. )

The plaintiff, for his complaint says:

1. That he is, and at the times hereinafter mentioned was, a

resident of Wake County, North Carolina.

2. That the defendant is, and at the times hereinafter mentioned,

was a corporation existing and doing business under the laws of the

State of North Carolina, «nd was operating a line of railroad in the

State of North Carolina and in the State of Virginia, and elsewhere.

3. That on the 14th day of January, 1912, the plaintiff was in

the employment of the defendant and in the discharge of the duties

of his said employment it became and was proper and necessary for

the plaintiff to traverse a certain piece of ground beside the rail-

road track of the defendant end within its right of way at or near

the station known as Cochran, Virginia, and to do so hurrierly in

order to get aboard a train of cars then and there being operated by

the defendant; that at the said time it was snowing and the ground

had become and was covered and hidden by snow; that the defend-

GP RA Stans oe 8 Sa Tots rome peat: soma.

DE aca EPR ee RET LTO NNN EAN E TNS SE,

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 3

ant had carelessly and negligently caused, permitted and alloved

water to be poured or spilled upon the ground at said place and to

become frozen, thereby covering the ground for a considerable space

with a sheet of ice, and the defendant had negligently permitted

and allowed the said ice to be and remain upon the said ground at

the said place, and to become and be covered and hidden by the

snow, and had thereby negligently caused a highly dangerous con-

dition to exist and the said place and condition was highly danger-

ous and perilous and the defendant had negligently failed to warn

the pleintiff in any manner of the existence of said danger; and on

account of the negligence of the defendant in the particulars

4 aforesaid, the plaintiff, while proceeding along the said ground

in the exercise of ordinary prudence and care and with-

out notice, knowledge or information or warning of any kind of the

existence of said danger, was caused to slip and fall heavily upon the

ground, and thereby his collar and other bones were injured and dis-

located, and he was bruised and wrenched and strained and sprained,

and he was caused to suffer other serious, painful, dangerous and

permanent injuries to the muscles, bones, nerves and ligaments of

his body, head and extremities, and caused to suffer much pain and

anguish of body and mind.

4. That on account of the negligence of the defendant as afore-

said, the plaintiff has been damaged in the sum of ten thousand

($10,000) dollars.

Wherefore, the plaintiff pravs judgment that he recover of the

defendant the sum of ten thousand dollars damages, and the costs

of this action, and that he have such other relief as may be proper.

(Signed ) R. N. SIMMS,

Attorney for Plaintiff.

s;

ie

=

Nortu CAROLINA,

Wake County:

J. T. Renn, being duly sworn, deposes and says that the foregoing

complaint is true to his own knowledge, except as to matters stated

upon information and belief, and tha‘! as to those matters he believes

it to be true.

(Signed) J. T. RENN.

Subscribed and sworn to before me this 26th day of March, 1913.

(Signed) A. T. SNOW,

Notary Public.

My commission expires the 13th day of July, 1914.

_ And thereafter, on the 23rd day of April, 1913, the defendant, by

its attorney, Murray Allen, comes and answers as follows:

SEPT OF DIU RY Ae A ENT UO ID eS eas

seh SRT re nt en

aon ecletpig reek ait Rae aed

IRN EIS ae 8

4 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

5 Answer.

Nortu CaRo.ina,

Wake County:

Superior Court, March Term, 1913.

(Title of Cause.)

The defendant, answering the complaint herein, says:

1. Section one is admitted.

2. Section two is admitted.

3. The allegations of section three are not true and are denied,

4. The allegations of section four are not true and are denied,

And for further defense the defendant says:

1. That if plaintiff was injured as alleged in the complaint,

which is again denied, such injury was caused by his own negligence,

in failing to exercise the care of a prudent man under the circum:

stances, and in hurriedy walking over snow and ice, and plaintiff's

negligence is pleaded by the defendant as contributory negligence

and set up in bar of plaintiff’s right to recover in this action.

2. That if plaintiff was injured as alleged in the complaint,

which is again denied, the risk of injury by falling on ice and

snow on the ground was one of the risks ordinarily incident to the

plaintiff’s employment and he assumed the risk of injury therefrom,

and the assumption of risk by the plaintiff is pleaded by the defend-

ant in bar of his right to recover in this action.

3. That if plaintiff was injured as alleged in the complaint, which

is again denied, the condition of the ground was fully known to the

plaintiff and the danger incident thereto, if any, was known to and

appreciated by the plaintiff and he assumed the risk incident thereto,

and the assumption of risk by the plaintiff is pleaded by the defend-

ant in bar of his right to recover in this action.

6 4, That if the plaintiff was injured, as alleged in the com-

plaint, which is again denied, such injury was sustained in

the State of Virginia, and plaintiff’s right to recover on acocunt of

said injury is goverened by the law of said State and under said

law the plaintiff is not entitled to recover damages in ‘this action

because of his own negligence and carelessness in failing to exercise

the care of a prudent person under the circumstances and in

hurriedly walking over the snow and ice, and plaintiff’s negligence

is pleaded by the defendant as contributory negligence under the law

of the State of Virginia, and is set up by the defendant in bar of

plaintiff's right to recover in this action.

5. That under the law of the State of Virginia, if the plaintiff was

injured as alleged in the complaint, which is again denied, the risk

of injury by falling on ice and snow on the ground was one of the

risks ordinarily incident to the plaintiff's employment, and he

assumed the risk of injury therefrom, and the assumption of risk

ORR YOR OER LL EO ETE

ae eee Pees Le *

q

,

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 5

by the plaintiff under the law of the State of Virginia is pleaded by

the defendant in bar of plaintiff’s right to recover in this action.

6. That if the plaintiff was injured, as alleged in the complaint,

which is again denied, the condition of the ground was fully known

to the plaintiff and the danger incident thereto, if any, was known

to the plaintiff and appreciated by him, and under the law of the

State of Virginia he assumed the risk incident thereto and the

assumption of risk by the plaintiff under the law of the State of

Virginia is pleaded by the defendant in bar of plaintiff’s right to

recover in this action.

7. That if plaintiff was injured as alleged, which is denied, the

defendant pleads the law of the State of Virgin‘a, as set forth in

bar of plaintiff’s right to recover.

Wherefore, defendant demands judgment that it go without day

and recover the costs of this action.

(Signed) MURRAY ALLEN,

Defendant's Attorney.

7 Nortu CAROLINA,

Wake County:

J. F. Mitchell, being duly sworn, says: That he is agent for the

defendant company at Raleigh, N. C., that the foregoing answer is

true of his own knowledge, except as to matters therein stated upon

information and belief, and as to those matters he believes it to be

true.

(Signed) J. F. MITCHELL.

Sworn to and subscribed before me this 21st day of April, 1913.

C. A. GOSNEY,

Notary Pubiic.

My commission expires 29th day of Jan., 1914.

Upon this cause coming on for trial, at the conclusion of the plain-

tiff's evidence, the plaintiff was allowed by the court, over the de-

fendant’s objection and exception, to file the following amendment

to his complaint:

Amendment to Complaint.

Nort CaRronina,

Wake County:

Superior Court, May Term, 1915,

(Title of Cause.)

The plaintiff, amending his complaint by leave of the Court adds

thereto the following, to follow paragraph three, to-wit:

_ 8A. That at the time the plaintiff suffered said injuries he was

in the regular employment of the defendant as a pump repairer,

|

merase LS ERENT

6 SEABOARD AIR LINE RAILWAY VS. J. T. RENN,

working as from time to time ordered by the defendant, on the

pumps used in connection with the line of defendant’s railroad e.

tending between the city of Raleigh, in the State of North Caroli

and the city of Richmond, in the State of Virginia; and at the time

the plaintiff suffered said injuries he had been sent by the de.

8 fendant from his home in Raleigh, North Carolina, to Coch.

ran, Virginia, to repair a pump of the defendant at said Coch.

ran, Virginia, and he had visited and inspected said pump and dis

covered the need of a coupling or fitting or flange or union, which

was not obtainable at Cochran, Virginia, and which he thought (as

afterwards proved true) the defendant had at Skelton, Virginia; and

the plaintiff at the time of suffering said injuries was going along

the usual path from said pump past the water tank of the defendant

at Cochran, Virginia, to board, at Cochran, Virginia, one of de

fendant’s trains and to go to said Skelton, Virginia, to get said needed

part or appliance to be used by him in repairing a pipe connected with

the said pump at Cochran, Va., which pump had theretofore been

and was thereafter to be used by the defendant in pumping water

into the said tank at Cochran, Virginia, from which tank water was

from time to time taken by trains of the defendant, some of which

trains were at such times being operated by defendant while engaged

in interstate commerce, and that the train which the plaintiff was

going to board and did board, was at said time engaged and

operated by the defendant in interstate commerce; and that at said

time the defendant was a railroad company engaged as a common

carrier by railroad of freight and passengers in interstate commerce

between the State of Virginia and the State of North Carolina,

(Signed) R. N. SIMMS,

(Signed) J. C. L. HARRIS,

Attorneys for Plaintiff,

te el ae ae ee a a ee en

Nort CAROLINA,

Wake County:

J. T. Renn, being duly sworn, deposes and says, that the foregoin

amendment to his complaint, and his complaint as thus amended,

are true to his own knowledge, except as to matters therein stated

upon information and belief, and that as to those matters he believes

it to be true,

(Signed ) J. T. RENN.

9 Subscribed and sworn to before me this 11th day of June,

1915.

(Signed ) A .T. SHAW,

Notary Public.

My commission expires July 21, 1916.

The defendant thereupon, by leave of Court, filed the following

written objections to the amendment to plaintiff’s complaint:

ss PERM gone eres SIAN BG TRA OLE LIE PRR E SEEN TT eS

SEABOARD AIR LINé RAILWAY VS. J. T. RENN. 7

Objections te Amended Complaint.

The defendant objects to the allowance of this amendment to the

mplaint upon the ground that it introduces a new cause of action,

wit: A cause of action for injury to an employee of a common car-

fer by railroad engaging in commerce b:tween the States of Vir-

gnia and North Carolina and other States, while he is employed by

ach carrier in such commerce, which cause of action arises under

the act of Congress of April 22, 1908, known as the Federal Em-

ployers’ Liability Act, and which cause of action is not pleaded in

the original complaint and is barred by the provisions of Section six

of the said Act of Congress, providing that no action shall be main-

See EE Se

int r Prem

je. wined under this act unless commenced within two years from the

ej @ day the cause of action accrues, and it appears from plaintiff's evi-

dence and from the complaint filed in this action that plaintiff's

ause of action accrued on the 14th day of January, 1912, more than

iwo years before the amendment was offered, and the plaintiff has

failed to comply with the provisions of said section 6 of the Act of

h My Congress of April 22, 1908,

4 The defendant also objects to the allowance of the said amendment

as the ground that the court has no power to allow it, because said

j | amendment will change the cause of action alleged in the complaint

@ and will allege a new cause of action under the Act of Congress of

April 22, 1908, known as the Federal Employers’ Liability

10 Act, and will be a departure in the substance of the action

and a departure in the law on which it is founded. Objection

overruled and defendant excepts.

The defendant also objects to said amendment upon the ground

that it contains averments of facts which were not contained in the

original complaint and which defendant should have an opportunity

to prepare to defend, and asks for a continuance if the amendment

isallowed. Motion overruled, and defendant excepts,

The defendant filed the following answer to the amendment to

plaintiff's complaint:

i i |

Answer to Amendment to Complaint.

Nortu CAROLINA,

Wake County:

Superior Court, May Term, 1915,

(Title of Cause. )

Reserving its objection and exception to the amendment of the

complaint herein, the defendant answers said amendment as follows:

3A. The defendant denies that the plaintiff sustained any injury

as alleged in the complaint and the amendment thereto, and denies

that the plaintiff was going along the usual path from the defendant’s

pump past the water tank at Cochran, Va. The defendant admits

ee ee a

Seer

—

DA ee ge OS

ee |

& SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

that at the time alleged the defendant was a common carrier by rajj.

road of freight and passengers in interstate commerce between the

States of Virginia and North Carolina and that the plaintiff was

the time alleged in the complaint employed by the defendant in sue)

commerce.

And the defendant further alleges in answer to said amendment

that the cause of action alleged in the complaint as amended aris

under the Act of Congress of April 22, 1908, known as the Feder)

Employers’ Liability Act, and the plaintiff cannot maintain the

said action because he did not commence it within two year

11 from the time the cause of action accrued, as required by

Section 6'of the Act of Congress of the United States, of Apni

22, 1908, known as the Federal Employers’ Liability Act, the alleged

injury having occurred and the cause of action having accrued Janu.

ary 14, 1912, and the amendment to the complaint having been

made June 11, 1915, and the defendant pleads the provisions of said

Section 6 of the Act of Congress and the plaintiff's failure to com.

mence his action for injuries received while the defendant was ep-

ging in interstate commerce between the States of Virginia and

North Carolina and while the plaintiff was employed by the de

fendant in such commerce, within two years from the time the said

cause of action accrued, in bar of plaintiff’s right to recover in this

action.

(Signed ) MURRAY ALLEN,

Attorney for Defendant.

Verification waived.

Trial, Jury, Ete.

Nort CAROLINA,

Wake County:

In the Superior Court.

(Title of Cause. )

And thereupon, this action coming on for trial, the following

jurors are justified, tried and sworn to try the issues joined between

the parties: W. O. Strother, E. J. Smith, H. P. Hobby, R. F.

Frazier, C. M. Johnson, C. N. Dixon, D. H. Allen, S. G. Riggs, M.

T, Ray, J. S. Moody, G. C, Jones, G. L. Sloan.

And thereupon, after the introduction of the evidence of the above

plaintiff and defendant, and after the charge of the Court, said

jurors heretofore empanelled in this case, for their verdict, found

the issues submitted to them as follows:

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 9

12 Issues—V erdict.

NortH CAROLINA,

Wake County:

Superior Court, June Term, 1915.

(Title of Cause. )

1. Was the plaintiff injured by the negligence of the defendant?

Answer: “Yes.” :

2, Did the plaintiff assume the risk of injury?

Answer: ‘‘Nu.*

3. Did the plaintiff, by his own negligence, contribute to his

injury ?

oe “ie.”

4, What damages, if any, is plaintiff entitled to recover?

Answer: “$3,500.”

5. At the time alleged in the complaint, was the defendant en-

gaged in interstate commerce, and was the plaintiff employed by

the defendant in such commerce?

Answer: “Yes.”

6. Did the plaintiff’s cause of action accrue more than two years

before the amendment to his complaint was filed?

Answer: ‘‘No.”

ee ee ee — ee — i

Motion to Set Verdict ‘Aside, etc.

Upon the coming in of the verdict defendant moved for judgment

non obstanti veredicto. Motion overruled. Defendant excepts.

Defendant moves to set the verdict aside because the amount of

damages awarded is excessive. Motion overruled. Defendant ex-

cepts.

Defendant moves to set verdict aside as against the weight of evi-

dence. Motion overruled. Defendant excepts.

Defendant moves for a new trial for errors occurring during the

trial and errors in the admission and exclusion of evidence

18 and in the Court’s charge to the jury, and in the Court’s

refusal to give defendant’s requests for instruction, and in

permitting plaintiff to amend his complaint so as to bring his cause

of action within the provisions of the Act of Congress of April 22,

1908, known as the Federal Employers’ Liability Act, and in re-

fusing defendant’s motions for judgment of nonsuit and to dismiss

the action. Motion overruled. Defendant excepts.

PRAGA S TEST ELENA SO RUM Bae FIN OTE

10 SEABOARD AIR LINE RAILWAY VS. J. T. RENN,

Judgment.

Nortru CaroLina,

Wake County:

Superior Court, May 37 Term, 1915.

(Title of Cause.)

The above-entitled action coming on for a hearing and being heard

before his Honor, F. A. Daniels, Judge, and a jury, and the follow.

ing issues having been submitted to the jury and answered by the

jury as follows, to-wit:

1. Was the plaintiff injured by the negligence of the defendant?

Answer. “Yes,”

2. Did the plaintiff assume the risk of injury?

Answer. “No.”

3. Did the plaintiff, by his own negligence, contribute to his in-

jury?

Answer. “No.”

4. What damages, if any, is plaintiff entitled to recover?

Answer. “$3,500.”

5. At the time alleged in the complaint, was the defendant en-

gaged in interstate commerce, and was the plaintiff employed by the

defendant in such commerce?

Answer. “Yes.”

6. Did the plaintiff's cause of action accrue more than two years

before the amendment to his complaint was filed?

Answer. “No.”

14 Hereupon, it is by the Court, considered, ordered, adjudged

and decreed, that the plaintiff, J. T. Renn, recover of the de-

fendant, Seaboard Air Line Railway, the sum of three thousand five

hundred ($3,500) dollars, with interest thereon from the 31st day

of May, 1915, until paid, together with the costs of this action, in-

cluding the special allowance to physicians, to be taxed by the Clerk.

(Signed) F. A. DANIELS,

Judge Presiding.

(Signed) R. N. SIMMS,

(Signed) J.C. L. HARRIS,

Attorneys for Plaintiff.

To the judgment signed by the Court defendant excepts. Defend-

ant in open court appeals to the Supreme Court.

Notice of appeal given in open court, and further notice waived.

Undertaking on appeal fixed in the sum of $50.

By consent, defendant is allowed until August 10, 1915, to file and

serve statement of case on appeal and plaintiff is allowed until Sep-

tember 20, 1915, to serve counter-statement or exceptions.

The defendant thereupon filed the following appeal bond:

REE EO YORI SORELY TESTER 1g oARS e

Oa

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 11

Appeal Bond.

NortTH CAROLINA,

Wake County:

Superior Court, June Term, 1915.

(Title of Cause.)

Whereas, at June Term, 1915, at the Superior Court of Wake

County, judgment was rendered against defendant in the above-en-

titled action, in the sum of $3,500 and costs; and,

Whereas defendant intends to appeal to the Supreme Court:

15 Now, therefore, we, Seaboard Air Line Railway, and Fi-

delity and Deposit. Company of Maryland, undertake, pur-

suant to the statute, that the defendant shall pay all costs which may

be awarded against defendant in such appeal, not exceeding, however,

the sum of $50.

SEABOARD AIR LINE RAILWAY,

[sPAL. ] By MURRAY ALLEN.

FIDELITY & DEPOSIT CO. OF

MARYLAND,

[SEAL. | By JOS. B. CHESHIRE, Attorney in Fact,

By J. McKIMMON, Agent.

Defendant's Statement of Case on Appeal.

Norto CAROLINA,

Wake County:

Superior Court, June Term, 1915.

(Title of Cause.)

This is a civil action for damages brought by the plaintiff to re-

cover for personal injuries alleged to have been sustained by plaintiff

while employed by the defendant. The action was tried at June

Term, 1915, of the Superior Court of Wake County before his

Honor, F. A. Daniels, and a jury. The pleadings which appear in

the record show the contentions of the parties. The issues with the

answers made thereto by the jury and the judgment rendered upon

the verdict appear in the record.

Plaintiff offered the following evidence:

J, T. Renn, the plaintiff in this action, having been duly sworn,

deposes and says:

Direct examination by Mr. Simms:

My name is J. T. Renn. Before I start, will say I am deaf; I

cannot hear. My home is in Raleigh, and have lived here since

nS eek ea ie

12 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

1902, and have lived in this State all my life. Was born op

16 the 15th day of May, 1855. Commenced working for the Seq.

board Air Line Railway on the Ist day of January, 1909,

Never worked for them before. Worked for them from 1902 unti]

the 25th day of February, 1913. My job was pump repairer

Started at $75 a month and ended at $90. Was receiving $90 g

month at the time I got hurt, regularly every month. I suffered

an injury in January, 1912, I believe the date is. I fell on the ice

on the 14th day of January, 1912, at Cochran, Va. The reason |

was there, I was ordered there by Mr. Elmore, the division engineer

to make repairs to the pump pipe, was the way the message read, Of

course, it was the suction pipe, ¢ flange union of the suction pipe

had froze and burst, end, of course, they could not get water. Mr,

Elmore had charge of me as a superior officer, and I went in pur.

suance to his orders. I was in Raleigh when I received orders to

go, and I went and got to Cochran; I do not know really the time,

but it was dark, I know, something I reckon about 7:30 or prob

ably 8:00 o’clock, the train was late. The weather was awfully cold,

the coldest night I ever saw, and snowing. Don’t know how long

it had been snowing, the snow was on the ground two or three days

before that, and it started snowing again; it had held up but started

again that evening. When I got to Cochran, I got off the train on

the west side when they stopped at the tank. I went around the en-

gine and down to the pump, the tank was on the east side of the

train; I went around the head of the engine and went down to the

pump, about 200 yards. Mr. Parks was there and Mr. Lewis. That

Mr. Parks there, who was just sworn as a witness, and Mr. W. H.

Lewis, who was pumper of the Seaboard at that time, and lived at

Cochran at that time. He now lives in Petersburg, Va. I went

down and saw the trouble, and saw that the flange union was burst,

and there was no way to make the repairs, and I thought for a

minute, and thought of having a 4-inch flange union at the pump at

Skelton: in other words, it is called Tavlor’s Creek. It is

17 10 or 12 miles this side of Cochran; and then I remarked

T would have to wait until train 35 next morning, and Mr,

Lewis said if you hurry up you can get that work train that is

ordered in from Mr. Bishop’s wreck. Mr. Bishop was not killed, he

was badly hurt, the wreck turned over. I hurried back up there

knowing if the train would stop at Skelton I could get that flange

union and get back on some night train and make the repairs end

avoid tving up the road for water, and I went up to get on the train,

and Mr. Lewis was just ahead of me with a lantern; and then Mr.

Parks was just behind me, a little piece, and as we went up the train

had gone, train 66, the train I got there on was gone, and I went

around to use the walk way between the tank and the toolhouse or

carhouse, to use the walk way, and there was ice on the ground and

I did not know it, and it was covered with snow: and, of course, I

could not tell there was any ice there, and T was not warned of it,

and about the time I got up close to the train, as far as across the

street rather, then engineer moved ahead, coming towards Nor-

lina, and then I hurried up, IT was not running, but in a good fast

Se nn) oe ——

Bg rh SHAY CF Sete Win Mah ee BS it ec aT omnes ane Nomen I PN ES RRP ESE bat) Ss,

eee ap res ee es f ; \ aay:

SEABOARD AIR LINE RAILWAY VS. J. T. RENN, 13

walk, and just as I went up on the slope of the bed of the road,

my feet slipped from under me and my shoulder struck either the

ie or the rail, I am not positive which, my right shoulder. I did

not know the ice was there. Had not seen it at any time, and had no

' jnowledge or information that it was there. Do not know of my

own knowledge how it got there.

At the place I slipped, when my feet slipped, I was walking in the

ysual path from the pump to the train.

Yes; that was the path usually used by the people going from the

tolhouse to the train. With respect to whether I was walking with

care or otherwise, will say that I got Mr. Lewis ahead of me with the

lantern so I could see, and we were all hurrying, we were not run-

ning, and about the time T went up on the ice, the train moved off.

As a fact, the train was not moving at the time, but I heard

18 the cars bumping together like they were going to leave, and I

started to go across the place and fell.

re SE TS RTI tS oe @ EL PSS SF

Q. Did you ca » your own fall in any way?

4 Objection by Mr. Allen for the defendant. Objection overruled ;

. defendant excepts.

Exception No. 1.

: A. No, I did not. I was just as careful walking as T could be.

i Mr. Lewis, the pumper, was just in front of me. He had the

| lantern, which was lit and shining. Mr, Parks was behind me. At

| the place I fell—this path I spoke of came around 40 feet probably

from the railroad track, back of the tank, but where I fell it was

where it came up and crossed the track. At the place I fell—the

path on which I was walking, crosses the railroad track. When I

fell, I suppose my feet were not over 4 or 5 feet from the ends of the

ties. I guess it was something like 15 feet or 20 from the water tank.

That was on the right of way of the Seaboard, and was the Seaboard’s

water tank and used by them. The man who operated the tank

to fill it was Mr. W. H. Lewis, the gentleman who was in front of me

with the lantern; Mr. Parks was behind me. I cannot say how thick

or deep the snow was. I do not suppose it was much thicker than

a newspaper, on the ice. Tt was very thin on the ice. T could not

see the ice at all. It was covered with snow. When I fell, I

think I dislocated my hip, or thought so at that time, or broke my

hip and my shoulder. My hip was just as bad and give me as much

misery for 2 or 3 days as my shoulder, but my shoulder was the place

that lasted. My hip was not hit much when T fell. T said, I have

broke my shoulder, and Mr. Parks said, did it hurt you much? and

I said, Mr. Parks, take care of my coat, T will be back sometime

tonight. TI had my overcoat like this, and he said, I will

19 take care of it, and he went and threw it on the car when I

got in. Mr. Carey Maynard took hold of me and helped me

on the train. Nobody else there; Mr. Parks took hold of my arm

and helped me up. Mr. Watkins was there, but I did not see him

until I got on the ear. T saw him after T got on the car. We went

from there to the station, I forget the name, the one betwen Skelton,

DF, RR pa

14 SEABOARD AIR LINE RAILWAY Vs. J. T. RENN,

the next station, and Mr. Maynard had to pick up a car there with

his wrecking train and put it on the center, or something, had tp

get 1t on the track, and I got off and went down and asked the

engineer if he would stop at the pump at Skelton and let me get the

4-inch flange, and he said he would stop anyway for water, and

I said, if you will stop long enough for me to get it, there is no al]

night office, I will get it and will go to Norlina, and he done 80, and

we stopped at Skelton, and we got the flange, and Mr. Maynard

helped me to get it, and I went down and showed him and he got the

flange. Then we got on the train and went to Norlina, and T waited

in the waiting room until 84 run, which was something like 9.

o’clock in the morning; and, anyway, I got back to Cochran before

day and went down and carried the flange and there was not any-

body there, and I walked back to Mr. Lewis’, about half a mile, and

got him up and got to the fire and got our breakfast, and went down

and made the repairs before train 35 the next day. As to the condi.

tion of my arm, shoulder and hip, had to tote it in a sling: | had

nothing to make a sling and had to unbutton my shirt. Could not

use it at all. T certainly did suffer pain; I suffered death time

after time, and continue to suffer until right now. Never have

gotten over the injury. Never have gotten back the use of my

right arm like I had it. T cannot use it for nothing. I cannot tote

it five hours down like that—so. The pain now is in my shoulder

and collar bone. I kept on trying to work after that’ I could

not get anvbody to relieve me, and T had to stay on the job all of the

time. TI asked for relief the next morning. TI had a message written

at Norlina by a man named Darnell and left there. | got

20 Mr. Manning, baggage master on train 41 that day, to write

a message and put it off at Ridgeway, to send a man to re

lieve me so I could go to the hospital. They never did send any

such relief man. I was not able to work with my right arm. Every-

thing I done I had to do with my left hand. T continued in their om-

ployment from the time I got hurt until the 28th of February, 1913,

the last day of February, 1913. I have never been able since the

time I got hurt in January, 1912, to work with my right arm. I

have suffered expense on account of this injury and had to spend

money. Don’t know how much, never kept an account, but I bought

every kind of liniment or everything that could be bought to wran

my shoulder with. and T tried several times to get laudanum. I

thought it would ease me, and T went to Portsmouth and got it: I

went there and bought a pint of laudanum and wrapped my shoulder

with it, but nothing gave me any relief. I cannot tell you how mueh

money I spent. I have no idea, but I suppose $25 or $30, at least

as much as that. Have not been able to work since that time: not

physically able to work with my hand. All of the work T have done

since that time is job with the citv. that they gave me laving a water

main on Blount street as foreman. Did not have to use mv arm in

that work, nothing but a foreman. I finished that job. Have not

had other emplovment. Have not been able to get it. Have tried

to work, tried to do a little plumbing work, but I had ray boy to .

me. Could not work with my right arm or hand. I did get aj

ccattenateat acre eseirenaimauneits a . aca out di

PRA IILE F IS a ee RE M EEE AR eg

-

SEABOARD AIR LINE RAILWAY VS. J. T. REN™. 15

sith the Norfolk-Southern, running the coal chute down there, but I

jaidled the engine altogether with my left hand. There was noth-

ing to do but handle the reverse lever and throttle. I went along

th that job until a man came along and took it for nothing. J

snot discharged. I was getting $65 and another man came along

wd took it for $40 or $45. I have suffered distress, anxiety and

worry of mind about myself and my condition. As to my

nervous system, I have been awfully nervous, gentlemen, and

my hearing is failing of me, and my mind is failing of me,

and 1 am not physically able to work at all more than what I am able

i do with my left hand. My hip troubled me I guess something

ike 6 or 8 weeks before it got all right so I could walk good. Of

ourse, I had to keep going, and, of course, I was a’hopping. It

gve me much pain at first. As to whether I had ever seen any ice

at the place or this ice at this time, I don’t remember ever seeing

ay ice there. I had seen snow on the ground, but no ice.

Q. State whether if the tank had been operated in the usual way,

there would have heen ice there at that time?

MTS aS S SAS AREER se E

‘ Objection by Mr. Allen for the defendant. Objection overruled ;

: defendant excepts.

‘ Exception No. 2.

r By the Court:

7 Q. Do you know how the tank was operating, had you known it

before?

A. Well, no; there had been some ice in front of the tank between

the tank and the main line by getting water and the waste from the

pipe, but there should not have been any ice along where I was.

Objection by Mr. Allen for the defendant to this answer. Objec-

tion overruled; defendant excepts.

Exception No. 3.

I do not know really whether the ice came from the tank, but there

was not ice anywhere else. I had seen the tank before on many

occasions, several times, had been seeing it for several years. Iad

seen it in winter time and in cold weather.

Q. Had you ever seen, or did you ever see any ice at the place

where you fell before?

22 Objection by Mr. Allen for the defendant. Objection over-

ruled; defendant excepts.

Exception No. 4.

A. No. Never had seen any ice there before.

Cross-examination.

By Mr. Allen:

I was living at Raleigh at this time; my family was here and I

made Raleigh my headquarters, and little later on Norlina became

my headquarters; moved there in June, 1913. 1 was known as the

pump repairer and tank man on the first division as they called it

then, and the first division extends from Raleigh to Richmond and

16 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

Portsmouth, and also to Lewiston. I had under my care and charge

all of the tanks and pumps between Raleigh and Richmond and

Portsmouth, and all branch roads. I would go from one to another

in the performance of my duties, keeping them in shape so that

water would go from the pump to the tank and could be taken by

the engines, and at various points and at Cochran engines stop and

take water; the engines of trains that pass up the road going to Rich-

mond and those coming south, both freight and passenger trains,

some go by and some do not. I do not know about all of the freight

trains from Norlina to Richmond or from Raleigh to Richmond

stopping there and taking water; some of them did. Any train that

wanted to take water, took water at that time. It was there for water

service on the Seaboard, and all trains that wanted water stopped

there and got it. As to whether any train on the Seaboard could

stop there and get water—I know that was what they put the tank

there for. 1 was not there all of the time to keep it in order so that

the trains could get water; I was only there when I was called. I

was not there to see that they could get water, 1 was there to see about

the pump. The pump sent the water to the tank and the engine

took water from the tank. I went there on this occasion to

23 fix the pump. Went from Raleigh. The train that 1 came

away from there on, was on the sidetrack coming to Raleigh

from the wreck. It was so cold Mr, Bissett, une master mechanic,

ordered it in until the weather moderated. It was so cold that they

could not work. All of the pumps between Raleigh and Richmond

and Raleigh and Portsmouth were under my charge. They pumped

water into the tanks, and from these tanks the trains of the Sea-

board Air Line took water; that is what they were for. I do not know

whether all of the trains of the Seaboard took water there—they all

had to take water somewhere. Leaving Raleigh and going to Rich-

mond and Portsmouth, the engines would have to take water; the

engines of the trains leaving Raleigh for Richmond and Portsmouth

would have to take water from one of these tanks under my charge,

freight and passenger trains, and it was my duty to keep these

pumps in working order so that they would keep the tanks full to

serve these engines running from Raleigh to Richmond and Ports-

mouth. That is what I was doing at Cochran, working on the pump.

All I had to do was to keep them in order to keep the tanks full so

that the engines passing by that station, engines from Raleigh to

Richmond, could get water. The engines ran from Raleigh to Rich-

mond. I continued to work for the Seaboard for thirteen months

after I got hurt. Each month I got my full pay-—$90 a menth, from

the time I got hurt in January until February 28, 1913. My connec-

tion with the Seaboard terminated February 28, 1913, when they

discharged me. That’s when I left the service. In a few days after

February, 1913, I went to see a lawyer about this suit. I went

right straight to a lawyer and employed him to bring suit against

the Seaboard. The suit was brought on March §, 1913. That is

the date I signed the bond. I do not know when the summons was

issued. I don’t know really whether it was soon after I signed this

RASPES ETO Gi Mn Doge ne cnet Bo ean

SEABOARD. AIR LINE RAILWAY V8. J. T. RENN. 17

bond. I declare I don’t remember whether the suit was

24 brought in March after I signed the bond. I know | asked

them several times for jobs. I do not know when the suit

was brought. Don’t remember whether it was brought during the

month of March, 1913. After leaving the employment of the Sea-

board, I worked for the city awhile. They paid me $2.50 a day.

Worked for them laying pipes for the water department. I have

a plumbing license and work as a plumber. I did some work on a

building down by the depot that belongs to Dr. Rogers, put the

plumbing in there. I! left the employment of the city voluntarily,

got through the job. Did not quit; I ran the pipe—the water main,

from the city water works up Blount street over to Halifax, and then

they told me it was done. I kept the job as long as it lasted, and

then went to work for the Norfolk-Southern. Did not leave them of

my own accord; they hired a man named Blackwood to take the job;

they reduced the wages, and they told me that I could stay on if I

would work for the wages that -his man took it for, and I left because

I could not work at it. I did not apply to the city for a job as pipe-

man and find that Mr. Clark Farmer had the job; I went to a man

by the name of Robertson and asked him for a job; he was working

for the city, and he said he had a foreman. As to whether the Sea-

board Air Line, after this injury, paid me $1,020 for services, after

I fell at Cochran, 13 months at $90 a month, they kept me employed.

I did not say nothing about pay, they kept me going all of the time,

and, of course, I expected it. They sent me my check all of the time.

When I got off the train at Cochran I went around to the pump,

went on the west side and around the head of the engine and down

to the pump. There was snow on the ground—all the way down to

the pump. Pond at the pump was frozen over, 14 inches of ice.

We had two colored men to cut a diteh and lay the pipe down. They

stayed there and cut the ditch. I was something like 20 feet or prob-

ably 25 feet, I do not know, to the tank when I fell. I fell, you

might say, on the south side of the tank; I fell on the east

25 side. Here is the tank and the track runs this way, and I

fell here. (Illustrates.) I was towards the station, near the

car house. I had not gotten bevond the tank, I was about 15 or 20

feet from the tank, in the usual pathway. There is a path that runs

from the tank to the pump house on the east side. I came along

parallel with the track, and then came right square up to the track

when I fell. When I got just by the tank I fell. I did not come by

the cross ties on the right of way. The tank was between me and the

cross ties. The tank was on the right of way and I was beyond the

tank. I came by the back of the tank. I did not go around the tool

house; I was between the tank and the tool house. I came up there

to cross over the track. There is a path that comes up from the

pump to the tank on the east side, which comes up to the side of the

tank towards Richmond. I came up on the walkway going south,

looking from the pump, and I came around back of the tank, and

went to cross right on the usual walkway when I fell. IT had come

up on the right of way, about 15 or 20 feet from the tank. These

tenks should be kept full of water, and the engines take water from

3—773

DLS REE

18 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

them. They pull the tank spout down and then pull a chain and

let the water into the engine. When the tank gets a little more than

fuli, the water comes out over the tender and overflows on the

ground; that is carelessness of the fireman; should not do that.

There is air in the tank, but if a man is on his job, he does not

have to lose any water. The goose neck is called the tank spout. He

lets the tank spout down into the manhole, and when he turns it

loose, ordinarily there is water in it, sometimes not, if he takes it up

right quick. You find water around the water tanks, but it is on

account of the carelessness of the firemen. You find it, | do not know

about a plenty of it. I have been to tanks and found water around

them, and that is a common thing, but it is not necessary that it

should be there, but I have seen it there. In cold weather that water

freezes like any other water. In weather as cold as this, water

26 that comes down out of the heavens freezes as soon as it hits

the ground. I had just gotten to Cochran, had not been there

over 30 minutes. 1 found ice there at that tank; | do not know that

I found ice anywhere else that winter. I did not notice that wherever

I found water I found ice. Don’t know whether it had been raining.

I know it had been snowing several days, and it was snowing then.

Those several days I had been up and down the road everywhere.

That was like the usual winter, when the sun was shining, it was

warmer in the day than at night. Mr. Parks was with me, and I fell

with this shoulder against the rail or cross ties, and I turned over

on my left side and got up. When I fell, that threw the coat off, and

I said, Mr. Parks, pick up the coat, and I got up, then I got right

on the train, Could not stop there or I would have been left and lost

my job. Had to hurry to get the train. As I came around the tank

and came up to’this place, I slipped and fell as I came up the slope.

Don’t know just how much slope there is, just a gradual slope, like

any other bed of the road. I fell on the slope, my feet might have

been four feet from the ends of the ties. Yes; as 1 went up the slope,

my feet slipped out from under me and I fell. At that tank they

have a drain box that takes the water—the drain water—out through

a ditch, it does not run out on the track. That drain was not between

the main track and the pass track; it ran between the cross ties and

ran out under the tank, and ran out under the pathway. That was

provided by the railroad. After I got up, I hurried to catch the train,

which was moving off when I got up. I got in the caboose car, not

the baggage car, and came on down to Skelton, and got the fixture

I went for. Don’t know really what time I got to Skelton,

I reckon it was probably 9:30 or probably 10:00 o’clock. Did not

stay there but a few minutes, just had to pick up a car and set it on

the center, or something like that. Don’t know what time it was

when we got to Skelton ; the engineer stopped and let me get a

27 flange union out of a barrel, and we went on to Norlina and

stayed until 84, and then went back. 84 stopped at Cochran

and put me off. It did not really stop there, because the conductor

was sitting down nodding, and | told him the train had blowed; I

was in so much misery I was not asleep, and he did not discover it

until he saw the switch light, and he said, yes, that is so, and he

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 19

stopped after we passed the pump and he put me off and I walked

back to the pump. The train that I left there on was the wreck

train, which stopped at Cochran to take siding for this train that I

went there on. I got on the wreck train and came to Norlina. The

train from Norlina got back to Cochran about 4:30 or 5:00 o’clock.

It was not daylight. I went to Mr. Lewis’ house and I got Mr. Parks

to let me have his two men to help me to put the pipe in, and we got

down there about daylight, and got through about 10:30 or 11:00

o'clock and got the pump going. I then got on 35 and came to

Norlina and then came on to Raleigh on 41. Have not kept any

account and have no idea of the amount I spent for medicine. Did

not have any doctor’s bill; I only had Dr. Judd twice. Had him

twice and he did not come any more.

Redirect examination.

By Mr. Simms:

Q. Mr. Allen has asked you about seeing water around tanks.

Did you see any water at other times around back of tanks where

this water was?

Objection by Mr. Allen for the defendant. Objection overruled;

defendant excepts.

Exception No. 5.

A. No.

This ice that I fell on, with respect to the tank, was about 20 feet

south of the tank, on the lower side of the railroad. It was not back

of the tank, it was on the side. Have not seen water around tanks

at that sort of place, nothing more than wasted by carelessness of

firemen who would run it over sometimes. Never saw any

28 water or ice on that side of the tank. Was not walking on

the cross ties at all when I fell. Mr. Lewis, the pumper,

picked out the way for me to go. I was not able to do any work as

plumber with my right hand; I contracted for it and my two boys

did the work.

Frank Parks, a witness for the plaintiff, having been duly sworn,

deposes and says:

Direct examination.

By Mr. Simms:

I now live at Dillon, 8S. C. Formerly lived in North Carolina;

lived at Raleigh and was in the railroad service as section foreman

in charge of the Seaboard yards here in the city. Do not now work

for the Seaboard. In January, 1912, at the time Mr. Renn got hurt,

was working at Cochran, Va., as section foreman, and had charge

of the section in which the tank and scene of his injury were lo-

cated. Was present when he was hurt. It was on January 14, on

Sunday; at that time they were running the pump day and night,

as others had frozen and was unable to supply them with water, and

20 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

the night man ran up until Sunday morning, sometimes late in the

morning before he shut down and got the tank full and running

over. He ran it over—Mr. Lewis did—and collected a good deal of

ice around it, as it would freeze as it was very cold weather; and

after running a good while it overflowed, and when it stopped there

was a good deal of water and it froze after it hit the ground—and

some before it hit the ground as it was trickling down the tank all

around, and in the evening late he went down to start up again for

the night run and it had froze during the day after he shut down,

and was unable to start any more. I saw him run the tank over.

Don’t know exactly how long he let it run over, probably an hour.

It was Sunday, and I was at home, and I noticed the water

29 flowing all around and trickling down—it covered the tank

all around the sides, trickling down; that attracted my atten-

tion, and he was unable to start up that evening when he came for

the night run, as something had froze and bursted, he did not know

what, and I was with him, and I could be of no assistance to find

out what the trouble was, and so Mr. Renn was ordered to come down

and make the repairs. I was with Mr. Renn at the time he got hurt.

We had been down to the pump—to the engine at least—and found

what was the trouble. He had been to the pump and found that

some piece had froze that day and bursted and could not pump any

more water until repairs were made, and he said, IT have get that

very piece we need at either Grandy or Skelton, I don’t know which,

and he said I can go up there on the night train and get back and

make the repairs, and I will have to go before 1 can make the re-

pairs; and while we were down there—and then we came up—and

there was a train going in his direction, and Mr. Lewis said, if you

will be in a hurry you can catch that train and come hack on 84;

and Mr. Lewis took his lamp—his lantern, and started off and Mr.

Renn was right behind him and I was right behind Mr. Renn, mak-

ing his way to the train, and when we got there near the tank,

maybe 20, I will say between 15 and 30 feet, somewhere, he slipped

down. There was ice there where it froze that day, and snowing

at the time, and there was a little skim of snow over the ice, and

he slipped and fell as quick as that, right across the road, and he

grunted a little and TI said, are you hurt, Mr. Renn? and he said yes;

and he turned over; his right side struck, and he turned over and

took his left hand and pressed himself up and got on up and he

said, bring my overcoat, and he went on to the train; and someone

pulled him or assisted him on, I don’t know who it was, and I pitched

his coat in, and he went on; and the next morning when I got out

at the usual hour of work, I found him and Mr. Lewis out

30 there, and he stated to me, you will have to furnish me labor

to do this work, I am not able to, I am crippled, I cannot

use my right arm; and I said, all right, and IT called my hands

and went down there with him, and we assisted him in doing his

work and got everything in shape. He seemed to be suffering pain

pretty smartly the next morning when he came back. I saw him

after that; he was there one time after that while I was there. Am

‘unable to say how long, it map have been two or three or four weeks,

21

SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

I don’t know, but sometime after that. As to his condition, he was

carrying his arm or hand stuffed in his vest; he could not use it

in the shape he was in, and he called on me that day to assist him

in doing his work, and I did so in making the repairs because he

could not use his arm; he told me he could not do it or told me I

would have to furnish him labor to do it, and I did so.

Q. Why was the tank running over?

Objection by Mr. Allen for the defendant. Objection overruled;

defendant excepts.

Exception No. 6.

By the court:

Q. Do you know?

A. Yes; because the pumper was neglecting his duty and let it

continue to-run after the tank was full.

By Mr. Allen: Defendant asks that that answer be stricken out,

as there is no allegation of such negligence in the complaint.

Motion overruled.

Objection by defendant and exception by defendant.

Exception No. 7.

The best of my knowledge, I believe it was about 200 yards from

the tank to the pump, in view, plain view of each other. Mr. Renn

got there in the night; the weather then was cold and snow-

31 ing. We had had several snows along before that for a week

or ten days or more—little at the time—snowed pretty

smartly and may have stopped and snowed again in a few days;

and that Sunday I think it hegan snowing in thé afternoon lightly.

Don’t know how deep the snow was at the time Mr. Renn go- hurt;

it might be four or five inches, something like that. I was not there

in charge of that section very long: went there the latter part of

August or the first of September, and stayed on until April or May,

7 or 8 or 9 months. Stayed there all through that winter.

Q. Was any ice usually around that tank at the place where Mr.

Renn got hurt?

Objection by Mr. Allen for the defendant. Objection overruled;

defendant excepts,

Exception No. 8.

A. No: not usually, it was not. Where the tank set was near my

toolhouse door, sloping from the tank down the hill, and the water.

would not stand but little, and kept it dry. Good drains all around

the toolhouse. I would take my Deval ane make a little drain so it

would run off quick.

I do not think there had ever been any ice before where Mr. Renn

got hurt. I had been there twice a day, coming in and out of my

toolhouse. I am not related or connected with Mr. Renn in any

way.

hoe in EN cas MOSS Pirarece SeALT SecerP in AERA ae aeeata ae Nayar ERR i a epinegies

: ' , CNT eam :

22 SEABOARD AIR LINE,RAILWAY VS. J. T. RENN.

Cross-examination.

By Mr. Allen:

I have been staying at Mr, Renn’s part of the time since I have

been here, and part of the time at the hotel; sometimes I would see

him during the day and he would invite me to go to his house. I

am not an employee of the Seaboard. To the south of the water tank

there is a high hill, with a bridge on top. There is a slight slope

from the bridge down to the depot, and then from there on to the

tank is pretty near level, to the best of my recollection, and from

the tank where it sets, it is sloping down hill right towards

32 the pump house; and there is a slope down hill from the rail-

ced track down east, under the tank. It starts under the

tank, and there is a drain in there to catch the overflow and carry it

off. I usually kept that open myself with shovels to keep water from

standing there. That was one of my duties. I looked after things

around there; anything I saw needed doing. I kept the drain open.

Water would not stand there, as the water ran off down the drain,

which went under the tank, level with the ground. There was no

pipe there. There was an old box, I think, under there. It did not

stand up above the ground. Was level with the ground, that is, under

it. The pump house is to the north of the tank, towards Richmond,

down in a bottom.. There is a grade all the way down there. There

is a 20-foot fill at the pump house; I expect it is that much. To

get to the pump house, yov can go down the railroad and cut down

that fill; you can do that. There is no foot way, but I have known

people to go that way, and another way there is a path down the side

of the fili from the tank to the pump house, a little foot path, which

I generally walk to and from, it starts from my toolhouse and leads

around it and goes to the pump house. When you come up from the

pump house you are close to the railroad. There is a little —_ right

by my toolhouse. That is not a round about way, it is the nearest

way. Coming up to the tank, from the north going south, there is a

little path which comes right along besides the fill, the right of way

and comes up to the north of the tank, then you are not very far

from the railroad track, but it was usually the best walk to go around

to the left of the tank and come around there, and when you get

there by the tank, you are on level ground. As a matter of fact, you

can go anywhere you want to go, and people going from the pump

house to the station, go up the fill. I have seen some go from the

depot down the railroad and slide down the fill, and I have seen some

climb the fill, but it is hard to climb up. The usual way is

33 the straight track path along down the fill to the tank, then

around it to toolhouse, and right by the toolhouse to the rail-

road. There is a little grade there, then vou are about 15 or 20 feet

from the tank. When the tank overflows, the water comes down the

sides and drips beside the tank; but of course, with a heavy overflow

it spreads, and then it goes down in the bottom. It is not down grade

all around from there, it is up grade. There are grades all around

there. I looked after things the best I could around the tank. That

was a hard winter. Everything was frozen up. Had a good deal of

snow, rain, hail and everything else that winter; and the force work-

ESE De OTe pee as

fey

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 93

ing there for the Virginia Bridge & Iron Company had to quit on

account of the snow and sleet tor a week and maybe more. This

was on account of the cold. The Sunday Mr. Renn got hurt, he and

I had not been working about the water. We made an examination

and found what was the matter. It had been snowing, not four or

five inches, before he left, only a little snow. During the whole

month of January—lI guess there was snow there the whole month

in spots. It would snow and melt off during the day and then the

ground would freeze where there was snow and melted, it was slick,

generally. Around my house, where we walked around, there it was

rough, but other places, it was slick. That was the hardest winter

I had ever seen at Cochran. 1 do not know but what that was the

hardest winter I have ever seen. Not all of the water tanks and

pumps on the Seaboard were frozen up, or trains would have had to

stop, but some were in both directions, and I was ordered to run the

pump day and night. As to keeping the tank full, I had nothing to

do but employ the pumper and see that the tank was kept full or a

supply. Sometimes he kept it full and sometimes it ran low, and

then he would have to pump when a train was not there and keep it

full. Sometimes the pumper does not stay at the pump house—

leaves the pump running to fill up the tank. But I am not

34 positive about that. There is harm from the tank overflowing.

When they get full generally they ought to be stopped as it

saves coal and wear and tear of machinery, and a man on his job will

do that. Also waste water. If it does waste, it does not make any

difference except the waste of water. When we came from the pump

house we came up the path beside the fill; right smart snow down

in that bottom; thick ice on the pond; next morning had to cut it to

make repairs with an axe. I think it must have been 15 or 16 inches

thick. ‘That was hard work and I needed my force to lelp do it. He

could have done that by himself. I think if he had not been hurt—

I think -he and the pumper could have done the work and not both-

ered me; | had from five to ten men. Did not use them all down

there that morning. Had two or three to do the work and I did not

have the others at work. Trains stop at this tank to take water pretty

frequently ; sometimes they would pass by. Trains from Norlina to

Richmond. Those two times were the only times I ever saw Mr.

Renn there looking after this pump. As to the duty of a pump fixer

on a railroad to look after tanks and valves, it is his duty to find

anything the matter and report it to his superior oflicer and the

superior officer will send a force there to repair it. 1 think the pump

repairer, that would be Mr. Renn, attends to the valves. Freight and

passenger trains stop there and take water. I walked behind Mr,

Renn, and Mr. Lewis was in front with the lantern. I did not put

Mr. Renn in front, he put himself. I was behind looking after some

poles that fell down and I looked after it to see there was no danger,

and that put Mr. Renn in front of me and Mr, Lewis was in front of

him with the lantern, and I was behind Mr. Renn. The point he

fell was 15 or 20 feet south of the tank, going up a little slope. It

was a little descent from the rail down and that is where he Teed.

I was not looking at his feet when he slipped. I was looking where

94 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

I was walking. I was trying to keep from slipping myself.

35 I didn’t slip. I could see snow all around there. Had a light

there, a lantern. The light did not show that it was slippery.

Snow had fallen. It was snowing at that time. You could not see

that it was slippery, it was all covered up by snow. The reason I was

walking carefully, I always try te walk carefully, especially when

there is snow and at night. A man ought to be careful. Mr. Lewis

did not slip. Mr. Renn went and caught the train, the train was in

the act of moving off when we were at the tank. Mr. Renn wanted

to catch it, Mr. Lewis hurried up, walked peart, and Mr. Renn walked

peart and I was walking peart behind them. We were all walking

peart up that slope so that Mr. Renn could catch the train, when he

fell and he did not have on his overcoat, and as he fell that fell off,

and he said, I wish you would save my coat, and I picked it up, and

when he got on the train some one reached him, and helped him on.

I saw him the next day. I do not know whether he got a doctor. He

did not get one there. He did not say anything about a doctor. He

said this, he said he was not able to work, and he said he had wired

Mr. Elmore for a man to relieve him, so that he could go to the

hospital and get his bones fixed. I did not hear him say anything

“wer getting a doctor at Cochran. I was discharged by the Sea-

ard.

Redirect examination.

By Mr. Simms:

I will tell you about that, being discharged; Mr. Redman, under

whom I worked at that time was transferred from there to the second

division, and the man that taken his place up there, I don’t suppose

I suited him, and in a very short while after he got there, he relieved

me, and sent another man to take the job. That is all I knew about

it. He never made any complaints to me whatever. I got employ-

ment with the Seaboard right straight again on another division.

Mr. Renn told me something about wiring Mr, Elmore to relieve

him, so that he could go to the hospital for his bones, he said

36 He said that he was broke all to pieces, in the shoulder, that

is what he told me. The usual walkway from the pump up

to the railroad goes by the tank. ‘That was the walkway that Mr.

Renn was in at the time he got hurt. I don’t remember whether we

had struck any of the ice along that path until we got to that point

that night. It seems that there had been snow long here, and it

was mashed in, and there were tracks in the snow and frozen. Of

course, tracks through the snow made it rough. I had seen the ice

around the tank during the day.

Recross-examination.

By Mr. Allen:

When I got that new job on another division, I was discharged

there.

a dale se swe 7 . . _

3s bi aoe a a nea PESTER Ha ape rR RAE aT

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 25

Redirect examination :

I will tell you about that. I had an extra force down there, and

there was the work train force. I was giving my men $1.15 per day,

and there were other forces up and down the road giving $1.25, and

I would get me a bunch of men and they would leave me and go to

the other force and get 10 cents more and I could not keep sufficient

foree of men to do the work, and I judge that was the reason I was

relieved. The Seaboard would not allow me to pay more than $1.15

for the men.

By the Court:

Yes, I saw the ice and water there that day, Mr.

Renn is right, he was some four or five feet from the ends of the

cross ties where he fell, he was going up to them. TI saw ice along

there that day where he fell, there was ice all around there from the

top of the tank to the ground. That was water that came from the

tank that day.

The plaintiff rests.

37 The defendant moves for judgment of nonsuit upon the

ground that the evidence offered by the plaintiff fails to es-

tablish negligence on the part of the defendant as alleged in the

complaint. The defendant moves for judgment of nonsuit and to

dismiss the plaintiff’s action upon the further ground that the cause

of action alleged in the complaint is based upon the coinmon law

and the statute law of the State of North Carolina, and the plain-

tiff’s proof shows that he was employed by a common carrier by rail-

road engaging in commerce between the State of Virginia and

North Carolina and other States at the time of his injury and was

at the time of his injury employed by such carrier in such com-

merce, and the cause of action proved arises under the Act of Con-

gress of the United States of April 22nd, 1908, known as the Fede-

ral Employers’ Liability Act; that there is no allegation in the com-

plaint that the plaintiff was employed in interstate commerce and

no allegation of facts constituting a cause of action under the act

of Congress; that the case proved was not pleaded and there is a

total variance in pleading and proof. Moiion overruled and de-

fendant excepts. Exception No. nine.

Exception No. 9.

Plaintiff thereupon moved to amend his complaint so as to allege

that at the time plaintiff sustained the injury complained of, plain-

tiff was employed by the defendant in interstate commerce.

The defendant objects to the allowance of this amendment to the

complaint upon the ground that it introduces a new cause of action,

to-wit: a cause of action for jnjury to an employee of a common car-

rier by railroad engaging in commerce between the States of Vir-

ginia and North Carolina and other States while he is employed by

such carrier in such commerce, which cause of action arises under

4—773

he ee ae

26 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

the act of Congress of April 22, 1908, known as the Federal

38 Employers’ Liability Act, and which cause of action is not

pleaded in the original complaint and is barred by the pro-

visions of Section 6 of the said act of Congress, providing that no

action shall be maintained under this act unless commenced within

two years from the day the cause of action accrues, and it appears

from plaintiff’s evidence and from the complaint filed in this action

that plaintiff's cause of action accrued on the 14th day of January,

1912, more than two years before the amendment was offered, and

the plaintiff has failed to comply with the provisions of said Section

6 of the act of Congress of April 22, 1908.

Objection overruled and defendant excepts. Exception No. 10.

Exception No, 10.

The defendant also objects to the allowance of the said amend-

ment upon the ground that the Court has no power to allow it, be-

cause said amendment will change the cause of action alleged in the

complaint and will allege a new cause of action under the act of Con-

gress of April 22, 1908, known as the Federal Employers’ Liability

Act, and will be a departure in the substance of the action and a de-

parture in the law on which it is founded. Objection overruled and

defendant excepts. Exception No. 11.

Exception No. 11.

The defendant also objects to said amendment upon the ground

that it contains averments of facts which were not contained in the

original complaint and which defendant should have an opportunity

to prepare to defend and asks for a continuance if the amendment

is allowed. Motion overruled and defendant excepts. Exception

No. 12.

Exception No. 12.

39 Plaintiff thereupon filed the following amendment to his

complaint:

Amendment to Complaint.

Nortu Carouina,

Wake County:

In the Superior Court, May 31st Term, 1915.

(Title of Cause.)

The plaintiff amending his complaint by leave of the Court adds

thereto the following to paragraph three, to-wit:

3a. That at the time the plaintiff suffered said injuries he was in

the regular employment of the defendant as a pump repairer work-

ing as from time to time ordered by the defendant on the pumps

used in connection with the line of defendant’s railroad extending

between the City of Raleigh, in the State of North Carolina, and the

City of Richmond, in the State of Virginia; and at the time the

plaintiff suffered said injuries he had been sent by defendant from

his home in Raleigh, North Carolina, to Cochran, Virginia, to repair

Ne Aa, oA MCR peel as 6A ie, —- 7

i RR al AN i a ee en eee ee eee ene

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 27

a pump of the defendant at said Cochran, Virginia, and he had vis-

ited and inspected said pump and discovered the need of a coupling

or fitting or flange or union which was not obtainable at Cochran,

Virginia, and which he thought (as afterwards proved true) the de-

fendant had at Skelton, Virginia; and the plaintiff at the time of

suffering said injuries was going along the usual path from said

pump past a water tank of the defendant at Cochran, Virginia, to

board at Cochran, Virginia, one of defendant’s trains and to go to

said Skelton, Virginia, to get said needed part or appliance to be

used by him in repairing a pipe connected with the said pump at

Cochran, Virginia, which pump had theretofore been and was there-

after to be used by the defendant in pumping water into the said

tank at Cochran, Virginia, from which tank water was from time to

time taken by trains of the defendant, some of which trains were

at such times being operated by defendant while engaged in

40 interstate commerce, and that the train which the plaintiff

was going to board and did board was at said time engaged

and operated by the defendant in interstate commerce; and that at

said time the defendant was a railroad company engaged as a com-

mon carrier by railroad of freight and passengers in interstate com-

merce between the State of Virginia and the State of North Carolina.

(Signed ) R. N. SIMMS,

(Signed ) J.C. L. HARRIS,

Attorneys for Plaintiff.

Nortu CaARoLina,

Wake County:

J. T. Renn, being duly sworn, deposes and says: That the fore-

going amendment to his complaint, and his complaint as thus

amended, are true to his own knowledge, except as to matters therein

stated upon information and belief, and that as to those matters he

believes it to be true.

(Signed) J. T. RENN.

Subscribed and sworn to before me, this 11th day of June, 1915.

(Signed) A. T. SHAW,

Notary Public.

My commission expires July 21, 1916.

Upon the foregoing amendment to the complaint being filed, the

defendant renews its objections to its allowance, as follows:

The defendant objects to the allowance of this amendment to the

complaint upon the ground that it introduces a new cause of action,

to-wit: a cause of action for injury to an employee of a common

carrier by railroad engaging in commerce between the States of

Virginia and North Carolina and other States while he is employed

by such carrier in such commerce, which cause of action arises under

the act of Congress of April 22, 1908, known as the Federal

41 Emplovers’ Liability Act, and which cause of action is not

pleaded in the original complaint and is barred by the pro-

visions of Section 6 of the said act of Congress, providing that no

28 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

action shall be maintained under this act unless commenced within

two years from the day the cause of action accrues, and it appears

from plaintiff’s evidence and from the complaint filed in this action

that plaintiff's cause of action accrued on the 14th day of January,

1912, more than two years before the amendment was offered, and

the plaintiff has failed to comply with the provisions of said Sec-

tion 6 of the act of Congress of April 22, 1908. Objection overruled

and defendant excepts. Exception No. 13.

Exception No. 13.

The defendant also objects to the allowance of the said amend-

ment upon the ground that the court has no power to allow it, be-

cause said amendment will change the cause of action alleged in

the complaint and will allege a new cause of action under the act

of Congress of April 22, 1908, known as the Federal Employers’

Liability Act, and will be a departure in the substance of the action

and a departure in the law on whic) it is founded. Objection over-

ruled and defendant excepts. Exception No. 14.

Exception No. 14,

The defendant also objects to said amendment upon the ground

that it contains averments of facts which were not contained in the

original complaint and which defendant should have an oppor-

tunity to prepare to defend and asks for a continuance if the amend-

ment is allowed. Motion overruled and defendant excepts. Excep-

tion No, 15.

Exception No. 15.

The defendant filed the following answer to the amendment to the

complaint:

42 Answer to Amendment to Complaint.

Nortu Caroirna,

Wake County:

Superior Court, May Term, 1915.

(Title of Cause.)

Reserving its objection and exception to the amendment of the

complaint herein, the defendant answers said amendment as follows:

3A. The defendant denies that the plaintiff sustained any injury

as alleged in the complaint and the amendment thereto, and denies

that the plaintiff was going along the usual path from the defend-

ant’s pump past the water tank at Cochran, Va. The defendant

admits that at the time alleged the defendant was a common carrier

by railroad of freight and passengers in interstate commerce between

the States of Virginia and North Carolina, and that the plaintiff was

at the time alleged in the complaint employed by the defendant in

such commerce.

And the defendant further alleges in answer to said amendment

that the cause of action alleged in the complaint as amended arises

EE EIR Le NN OE PT EL PTE FETE NAS AIRS IIT SID: SOME I MOET

SFABOARD AIR LINE RAILWAY VS. J. T. RENN. 2¢

under the Act of Congress of April 22, 1908, known as the Federa

Employers’ Liability Art, and the plaintiff cannot maintain the

said action because he did not commence it within two years from

the time the cause of action accrued, as required by Section 6 of the

Act of Congress of the United States of April 22, 1908, known as

the Federal Employers’ Liability Act, the alleged injury having

occurred and the cause of action having accrued January 14, 1912,

and the amendment to the complaint having been made June 11,

1915, and the defendant pleads tl:e provisions of said Section 6 of

the Act of Congress and the plaintiff’s failure to commence his action

for injuries received while the defendant was engaging in interstate

commerce between the States of Virginia and North Carolina

43 and while the plaintiff was employed by the defendant in

such commerce within two years from the time the said cause

of action accrued, in bar of plaintiff’s right to recover in this action.

(Signed) MURRAY ALLEN,

Attorney for Defendant.

Verification waived,

Defendant offered the following evidence:

E. V. Barbee.

E. V. Barper, witness for defendant, having been duly sworn,

deposes and says:

Direct examination.

By Mr. Allen:

I am employed by the Seaboard as pump fixer and succeeded Mr.

Renn in that position, a month or two after Mr. Renn left. I hold

the same position that he held, that is, fixing pumps between Raleigh

and Portsmouth and Raleigh and Richmond. My duties are keep-

ing up the pumps and tank. In connection with these duties, I

have to climb up the side of the tanks, also climb up over inside of

the tanks. Am engaged in fixing the tank valves when I find it

necessary to climb up inside of the tank. Cannot get at that in any

other way. The average height of tanks on the Seaboard from top

to bottom part of them is about 30 feet, and part of them a little more

than that. The tank part is 16 or 18 feet. The pump is not located

right at the tank. The pump at Cochran is located down on the

side of the railroad, down by the fill, some distance from the tank,

The pump is in a house. The pumper does his work in this house.

Near this pump is a pond, and that pump forces water from the

pond up to the tank. The tank is to supply trains Norlina to

Richmond and back. Any train can stop there and get water. In

the performance of my duties I go from one tank to another up and

down the line, between Raleigh and Richmond and Raleigh

44 and Portsmouth, and all of these tanks are under my control.

I find a great deal of water around these tanks.

GDR Re Ri PS SIARRI BENGE MR ESS EEE ELLER IS GI NI Se et : KODALI LAL TR Bas

pate, . NE SS Ee NE EB eterna cats .

RTE Sie bats Ms ae |g Baa he DSN BR ha ORES oe cae ete Mee SRE IE a

30 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

Q. Mr. Barbee, you find a great deal of water around these tanks,

don’t you?

A. Yes.

Objection,

By Mr. Simms: I object to this on the ground that it was some

time after the plaintiff got hurt.

By the Court:

Q. Do you know about them before you went into the work?

A. No,

Objection by Mr. Simms sustained and answer stricken out. Ex-

ception by Mr. Allen for defendant. Exception No. 16.

Exception No. 16.

I was a blacksmith before that. The pumper in the pump house

cannot at all times see the tank. I have worked on the tank at

Cochran. The path that runs from the tank to the pump house

down by the side of the hill leads out from the north side of the

tank, and that is where the path ran from the north side of the

tank at the time I took this employment as pump fixer about two

months after Mr. Renn.

The witness is handed a paper showing a diagram of the location

of the tank, pump house, ete., at Cochran,

There is a path which leads out on the north side of the tank

and goes north to the pump house. It comes across the railroad

there in front of the tank and goes to the pump house, There is

no path that goes around the tank. The tool house is located to

the south of the tank.

The witness points out on the diagram the location of the tool

house, the station, the tank, the pump and the tracks.

45 The Court states that the diagram in question is only per-

mitted to be used in illustrating the testimony of the witness

and for no other purpose.

There is a place there in the tank that the water runs out while

engines are taking water. Is called an air valve. That is on all

tanks of this character, with the exception of one or two on the

Virginia Division, there is an air valve on this tank, and water

ran through that when an engine was taking water. When an

engine is taking water from this tank, there is a spout to the tank,

you know, and they pull that down and put it into the man hole in

the engine tank and they open the valve with a rope. The way it

is cut off, turn the rope loose and it cuts off itself. After that is

done the fireman throws the spout back up, or lets the spout go back

up, and the water that is in the spout, when he throws it back up.

runs back out of the other end, on the ground. I have seen a tank

of this character overflow. Have seen the tank at Cochran overflow.

The water runs down back of the tank. When it overflows out of

the top, it comes right down the sides of the tank and falls on the

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 31

ground under the tank. There is a grade at Cochran which runs

down towards the pump. I think it wkes a pretty good man to fill

my job. I find it pretty tough. My hours of work, all of the time;

supposed to be. 1 am on duty all of the time, day and night; sub-

ject to call at any time, regardless of the weather. I have most

demands made upon me for service in bad weather.

Cross-examination.

By Mr. Simms:

I do not know where I was at the time Mr. Renn got burt. I do

not know what the condition of the tank was on the 14th day of

January, 1912, at the time Mr. Renn was there. I do not know

whether at that time it had any air valve or not. I do not know

whether at that time there was a path that led around to the south

of the tank and between it and the work house. These con-

46 ditions that I have described are those that have existed when

I taken charge of the job. There was an air valve on the

tank at the time I took charge. The air valve is located close to

the bottom of the tank, at the bottom of the tank. It is for the

purpose of lettin,: air into the tank. I suppose the air goes into

the outlet pipe. If it is not there, you cannot hardly hold the valve

open. Ido not know where the air goes to. The tank has no cover.

It is not like a jug, or anything like that, that you have to let air

into. It is open, and when you open the valve the water runs out

of it, like out of a tub; it runs out of a spout freely. I do not know

what the air valve is for. It is on there; that is all I know. The

air valve is at the bottom, and when the water runs out of the spout,

water runs out of it. As to it being a water valve instead of an air

valve, because water runs out of it, instead of air, I do not know

about that. As to the reason why it should be open, and water

running out of the spout, will say if that is not done, you can’t

hardly hold the valve and the spout down. I know that. When

you put the spout down and open the valve water runs out of the

spout. As to how a man opens the air valve, it opens itself; the

water does it. There are one or two tanks on the Virginia Division

that have not got it. This tank at Cochran is open at that time.

Air valves are in tanks that are not covered. I do not know whether

an air valve is one that lets air into the tops of a covered tank

between the top and the water, and forces the water out. I do not

know whether as a matter of mechanics that is the only use for

them. As to it being used only on tanks that are closed at the top,

there are none covered on the Virginia division. I did not tell vou

awhile ago that there was such a one. I do not know whether

tanks on other divisiens have covers over them. I do not know

about tanks that have air valves being covered.

I do not know whether this tank at the time Mr, Renn was work-

ing at Cochran or before that time had an air valve or not. That

tank is a right smart little ways from the pump house at

Cochran. More than 100 yards. If you are standing out-

side of the pump house you can see the tank. You can

47

$2 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

stand at the tank and see the pump house. Nothing to keep a man

if he is outside of the pump house, from looking at the tank and

seeing it. If he would go a little ways toward the tank, say eight

or ten feet. He could take three or four steps outside of the pump

house and see the tank,

Redirect examination.

By Mr. Allen:

From the pump house you cannot see that the water is running

over from the tank.

Recross-examination.

By Mr. Simms:

I have tried it several times. Not since I have been a witness in

this case, as I have not been at Cochran since then. I was not down

there looking to see whether I could see it or not. I stepped outside

and looked at the tank and then went up there and it was over-

flowing. It took sometime to walk the 200 yards from the pump

house to the tank. I swear that I cannot look at that tank from the

pump house and tell whether it is running over. I cannot step out

of the pump house two or three steps, eight or ten feet, and see

whether it is running over or not. I can see the tank, but I cannot

tell whether it is running over. My eye sight is fairly good.

I do not know exactly how far it is. I have never measured it.

My best judgment is that it is something like two hundred yards,

600 feet. I do not know whether a city block here is four hundred

and twenty feet or not. I do not know if you were to stand out here

and look down the street, it would be about as far away as the next

street. I do not know whether the streets are ninety feet wide or

not. If that is so, I do not know whether you can stand here and

look at Myatt’s and tell whether water was running over that wall or

not.

48 W. E. Nash.

W. E. Nasu, a witness for the defendant, having been duly sworn,

deposes and says:

Direct examination.

By Mr. Allen:

I am employed by the Seaboard as agent at Cochran, and have

been there about seven years, I was agent there in the month of

January, 1912, all of that year; also 1911 and 1910. My duties

require me to be around the station and the yard, I go over to the

water tank occasionally and see that everything is all right. I am

familiar with the surroundings there and the lay of the land, know

the way the land runs, and everything as far as the right of way

goes, and the way it lays. J recall the winter of 1911-12. Very

EO EEL EOE ROT IE NEN SATE MN RNIN IE SOUT RUN OR RT

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 33

cold, one of the coldest winters I ever saw. I think on the night

of January 7th, it began snowing, and if I am not mistaken, we

had snow and rain, and it would freeze from then to the 20th of

January, snow on the ground at least 6” deep or more than that.

And the most of that was frozen, and the snow and ice and rain had

all gotten on the ground, there was ice around Cochran and around

the station, all over the country everywhere, except the place I had

cleaned out in front of the station to get on and off the train. That

was the only clean place around there. The walking around there

when we got out of the place that was cleaned off was covered with

snow and ice, and sleet, and it was slick. It was slick everywhere, in

the county roads and everywhere else.

From a point opposite the station, it is a slope down to the pump

house at the branch. We have got a branch running through there

and it is a slope all the way and it also extends under the tank. I

think the height of the fill from the pump house up to the track is

at least 30 feet or more. I am familiar with the path which extends

from the tank to the pump house. Ever since I have been there

the path comes right by the tank, here to the north side of

49 the tank, and extends down on the ground in the fill. The

fill extends beyond the tank, and the path was beside the fill

down to the pump house. There was no path that I know of be-

hind the tank, in fact, there was a ditch which starts here and runs

out here, and there is no path that I know of behind the tank, in

fact, I know there is not one there.

The usual way to get from the station to the pump was to the

north of the tank, that’s the only path that I know-anything about.

That did not pass between the tool house and the tank. That path

has been there at least seven years, as long as I have been agent up

there, the path was there when I came, probably had been there

longer than that. It comes up on the north side of the tank, up to

the railroad, crosses the railroad and on to the station. The land

there insofar as the tank is concerned, slopes off towards the branch,

here where the pump house is. I have seen that tank overflow. I

have seen it overflowing before and since the time in question. I

worked right at it and if it overflows I see it. There has been no

change in the location of that tank. It is in the same place, it was

when I went down there and since I have been there. When it over-

flows since 1910, the water flows out of the east side on account of

that being on the sunny side and it got the staves at the top kinder

rotten. They came there to paint it, and they had to put up a

swinging ladder, and on this side they were scared to trust those

staves and they cut some trenches and put the hooks to hold the

ladder in, and ever since then if the tank overflows, it pours out on

the east side, after the water flows out on the east side it runs down

to the pump house. None comes up on the east side. The land

is on a slope, and is higher at the track than at the tank. Water

will not stand around that tank, not to amount to anything at all.

It might be where this water pours over, it may have cut out a little

basin, that holds a little bit, it would not stand at a point between

5—773 >

PERT EOD PE LEH ee ait eS), Pad vray

OPENS PLETE ts NIGER SR SRS BASS MR” WF hapa ge PON ON ue ge hg Mee Nb @

34 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

the tool house and the tank on account of the slope there.

50 lt is right there on the hill, and there is no way the water

can stand there.

When the tank overflows, the water runs down beside the tank,

comes right straight down. The pipe is about 4” where it runs up,

and there are five or six of those little places at the top, and they

carry the water right straight down. If it did overflow anywhere

else, it would flow down beside the tank. That is a big tank that

supplies the engines. The water is pumped into the tank frem

the pond. There is a pipe line extending into the ground until

it gets to the tank and it goes up over the tank and pours down into

it. It comes from the pump house. It fills up like a bucket that

you had stuck a hose in. ‘The location there now and the surround-

ings are the same as they were in 1912, in January, practically the

same. No change has been made at all.

Cross-examination.

By Mr. Simms:

As to the cut-out places, they painted the tank on all sides, did

not just paint it on the east side. They hung the ladders on every

side. They did not put the slits on every side, just on the east side,

and where the sun shown on its staves, it caused them to rot. The

sun shown on nearly all sides of the tank during the different times

of the year, but on the sunny side it rots first. It is a round tank.

I expect I was over at the tank on January 12, 1912. I was around

the station. It is quite possible that | was there. I could see this

‘ice there. I said possibly because I am there practically every day

two or three times. It is on the opposite side of the railroad track

from the station. I do not live on that side, but I have to take train

orders over there every day, and I have to go there to take the

orders, I do not cross over on the east side to take the orders,

my station is on the west, and I go to the west. The train

would be standing between me and the tank, but I could be

51 where I could see it. I do not know that I walked around it.

I would not have to go down there and look under the cars.

I could get within 10 feet. I do not go out there ahead of the train.

If I have a No. 19 order I go up there. I do not know whether I

had a 19 order that day. As to whether I was out there that day, I

could not swear that I went and stood by the tank, I am right in

sight. I can see without going out there. The station is 35 or 40

yards away from it, right in plain view, across three tracks, two of

them are side tracks. Sometimes cars stand on the side tracks. I

do not know whether there were any there that day or not. As to

the path way around on the other side of the tank, I do know there

was no path around there that lead to the pump. Where did it

lead to? A. There is no path around there. That is all there is to

it. There is no path between that tank and the tool house, only an

open space. As to people walking on it, if they had any business

they could. Nothing to keep them from walking on it. There is

something to keep them from walking around on the south side of

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 35

the tank, in going to the pump house, I would not like to go that

way, you have to step over a ditch two feet deep. Ditch ran north

from the tank. After coming out from under the tank it ran north.

The ditch was not covered. The ditch was between our right-of-

way and the farmer’s land that adjoined it. It lead north, but come

out from the east of the tank. Mr, Parks used the tool house as

foreman of the section. That was probably 25 feet from the tank,

as well as I could estimate it, I reckon. I did not say anything

about the land between the track and the tank on the west side being

on the slope. The tank is on the east side and the land between

the tank and the track slopes back off from the track, to the east

and the north. As to the slope I suppose it is a fill, at least the track

was put at the tank about 18 inches or two feet from the lay of tne

ground, and it is about 200 yards from the tank to the pump house

as well as I remember, | suppose from the track to the tank

52 is 8’, I reckon probably a little more than that. As to not

being able to get water at that distance, you have got a

spout. I suppose the spout is 10 feet. The spout comes over the

middle of the track.

O. F. Cain.

O. F. Carn, a witness for the defendant, having been duly sworn,

deposes and says:

Direct examination.

By Mr. Allen:

I live at Cochran, Virginia, and have lived there 6 or 7 years,

since about 1909. I run the pump there now, and have been run-

ning it since 1912, in August. I did not run the pump prior to the

time I took charge in 1912. Prior to that I had worked on the sec-

tion for 12 months or more off and on. I do not know how long.

I was working at Cochran in January, 1912, I remember the kind

of weather we had there at that time. That winter was the worst

weather I ever saw, the coldest snow on the ground, hail and sleet.

It was the coldest weather I ever felt. T will tell you what T was

doing, and I can explain it. I was out in it day and night, working

for the Virginia Bridge and Iron Company, watching for them and

in the day I was at Cochran, and around home, at the day time, and

around the place at night, and it was so cold that everything froze up

so that I could hardly get about all during the month. Some of

the Virginia bridge and iron force lay off from work on account of

being froze up so that they could not do anything, could not stand

up and do the work, could not get up on the bridge, all they could

do to stand on the ground. Much less on the bridge. Everywhere

was cold, snow and ice and rain and it would freeze as it would fall

and sun would shine out and it would melt and it would freeze that

night and snow on top, and that that way the whole month pretty

near. I am familiar with the surroundings there. I know where

36 SEABOARD AIR LINE RAILWAY YS. J. T. RENN.

the path that runs from the pump up to the tank and station

53 comes, runs out from the pump house on the north side of

the tank, and comes across the track and goes down to the

pump house. There is a 22 feet fill at the pump house. The fill

there in front of the tank going up to the railroad track where you

come up on the north side where this tank comes up, there is about

a three foot grade, right there. I mean that the track is three feet

above the point down at the tank that slopes down hill to the pump

house. Goes down hill all the way. There is a slope down grade

al] the way from the tool house to the pump house. The hill that

ends in the bottom in the pump house begins back yonder at the

overhead bridge, back nine hundred and some feet from the bridge

to the tank. The slope begins at the overhead bridge and extends

down grade to the pump house. Of course right in front of the

station it was more level, but it was down grade, where that little

grade is, is back this way towards to the south from the tool house.

There is no path that comes around behind the tank. I have never

seen one there. Since I have been there the same path is used going

from the tank to the pump hous that was in use, in January, 1914.

I go north towards the pump house, come up to the north side of

the tank, there is a path right by the pump house that comes up

the fill, but I never use that; it was too much grade. It comes up

the fill to the railroad track, but I did not go up there, I came up

this way by the pump house, everybody that lives there uses that

too. The distance from the tank to the pump house is 514 feet.

I have seen this tank overflow before and since January, 1912, when

the water runs over the top, and runs out on the east side, opposite

the track ; what makes it run out, there is little notches cut in there,

I do not know what it was put there for at the time, but there is

where it overflows. The water that overflows there runs out under

the tank and down to the pump house into the branch.

54 Cross-examination.

By Mr. Simms:

It was cold that way before Christmas and on, not that exactly.

I said all during the month of January. It was pretty near that

cold, I know. A long cold spell. The track there by that tank is

three feet higher than the ground under the tank. On the north

side where this path comes out there it is three feet from the ground

level with the track. There is not a little level place about the tool

house, back of the tool house not exactly level, but a little more

level than between there and the bridge. Out in front of the tool

house it is not level, it slopes down to the pump house. That is

the general slope down there, enough to drain water off if any

happens to fall there to drain away. I was around home there on

the 14th of January, 1912. I do not remember whether I was at

the tank, as to not knowing what happened there. I was there every

day or two, but I do not remember being there that day.

RS ERA Rare nee Se cane careocconptes my ra pparseohate sae enytry es cagraieae ne ne EE

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 37

L. H. Abernethy.

L. H. Avernetny, witness for the defendant, having been duly

sworn, deposes and says:

Direct examination.

By Mr. Allen:

I live at Cochran: in the general merchandise business; was liv-

ing there in 1912—January. Have been there about sixteen years.

Ever since the road was run through there. IT remember the weather

in 1911 and 1912: in January, 1912, it was exceedingly cold; all

kinds of cold weather. such as snow and hail, freezing up and such

as that everv night for the whole month of January. It snowed

several days after it beean and froze: snow on the ground, about six

inches deep when it fell, but at times it was deeper than that. The

surface of the earth around Cochran was slick everywhere and

rough going. T know about the employees of the Virginia Bridge

& Tron Co. laving off. Tt was two or three weeks in January.

55 They laid off hecanse they could not work. and on account

of the weather being so had. That was the roughest winter

we had had since I had been there. Tt was the roughest I have ever

seen. T may have seen it that rough, but not as long as that. I

am familiar with the station and have heen down to the pump house.

T know which way the path runs from the station to the pump house,

the general path, the usual path. T think some people go down the

railroad track, but thev have to go down the fill: others go down at

north of tank. There has never been anv path behind the tank; be-

tween the tank and the tool house, going down to the pump. The con-

ditions between the tank and tool house as to walking, of course, it

is smooth enouch to walk on, vet it is not a path. and people generaly

come up the hill the nearest way instead of walking around the tank.

Of course, thev could go there. There is a small ditch there in the

bank: side of the tank, that carries the water off. T have noticed

the tank and seen it overflowing, before 1912, and since then. It

generally overflows on the opposite side from the track. T have al-

ways noticed that and on account of those pieces at the top being

taken off or broken off, and it overflows on the opposite side. That

is, on the east side I suppose. Water that overflows there comes hack

towards the pump. The land between the tool house and the tank

is sloping. It slopes from the track towards the tank, and that slope

leads on under the tank and on towards the pump house. If water

should fall on that place, it would run north toward the pump house.

Cross-examination.

By Mr. Simms:

My store is 200 yards from there; up the track from the depot;

up the hill in the opposite direction, going from the depot towards

my store, your walking is practically a little bit to the north. I am

200 yards west of this tank. I lived a little bit further than the store;

a meagre _— —— _ —esenedus » jo HE oe

DIEU Rei OA BT MAN SSM PELTED: La T OREM NC eer) ety eae ve : > ah eat *

Yee F

38 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

just across from the main county road; still further west. I

56 have no business that carries me over there on the east side

of the railroad every day. As to nothing being down there

in that hollow, except the pump house, I suppose some people live

further on, and the firemen is down there. Nothing down in that

particular section, except the pump house, down in that hollow. As

a business man I did not spend much of my time around that tank.

I cannot say whether I was down there on the 14th of January,

1914. I suppose there was ice there that day; there was ice every-

where there was water. I know that ice was there. I did not see it.

The ditch that has been spoken of runs off from th- side of the tank

parallel with the track. It leaves east and turns down the track

north. It leads off from the north side away from the tank. The

ground around the tank is smooth; not sloping, and between the tank

and tool house, it is general yard and smooth enough to walk on.

Redirect examination.

By Mr. Allen:

There is a general slope from the overhead bridge up above the

depot down to the pump at the pond.

J. T. Renn.

J. T. Rewy, the plaintiff in this action, having been recalled by

the defendant, deposes and says:

Recross-examination.

By Mr. Allen:

Dr. Judd first visited me directly after I was hurt. I do not know

how long, I think it was the second day; I am not sure about that. I

came back on the day of the 14th and they called me on the night

of the 16th to go out again. I was here the day of the 15th. I have

had no other doctor except Dr, Judd. I did not go down te Rex

Hospital to see Dr. Moncure for treatment. I went down to have my

picture taken, and have an examination by Dr. Moncure and an

X-ray was made. I did not go back and get it, I did not have

57 money to get it. I went down and Dr. Moncure made it.

I did not go back to get it at all.

Redirect examination.

By Mr. Simms:

He wanted $10.00 for it.

Recross-examination.

By Mr. Allen:

I went to Dr. Burke’s office, and he sent me to Richmond to Dr.

Hazen to have an X-ray made there, and he made an X-ray of my

| shoulder. I am not positive whether that was in April after I got

el PERF ES Eh piper te eee SPOUT ag AT eae le ee ER TT ee NES

hurt in January, I know they kept me on the road, they never would

send anybody to relieve me until I got up with the general superin-

tendent. I don’t remember how long that was after I was hurt. It

was several days. They sent me to Norfolk to buy some stuff—some

pipe and valve—to install a tank in Weldon, and I got hold of Mr.

Shea. That was Mr. J. M. Shea, the general superintendent. He

said, “Renn, what are you doing with your arm in a sling,” and |

said, “I fell and broke my shoulder.”

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 39

Objection by Mr. Allen for the defendant on the ground that the

answer is not responsive.

I do not remember whether it was in April when he went to Rich-

mond.

Redirect examination.

By Mr. Simms:

Mr. Shea, the general superintendent, sent me to Richmond,

He sent me to Petersburg to Dr. Burke.

Recross-examination,

By Mr. Allen:

I do not know whether the Seaboard paid my expenses. I did not

pay Dr, Burke or Dr. Hazen. I did not pay anything, and I ain’t

never seen the pictures.

58 Dr. C. M. Hazen.

Dr. C. M. Hazen, a witness for the defendant, having been duly

sworn, deposes and says:

Direct examination:

I am a practising physician of Richmond and have been practising

since 1897, I graduated in ’97, from the Medical College of Virginia,

am licensed to practise medicine in the State of Virginia. I did gen-

eral medicine and surgery for a long time and then special work, gen-

eral X-ray work and electric therapeutics. I have a machine for

making X-ray pictures, and not connected with the Seaboard in any

way. I taught in the Medical College of Virginia for 14 years,

physiology and lectured on the same branch,

The witness is pronounced an expert by the Court.

I examined Mr. J, T. Renn, plaintiff in this case. The first date

was April 25, 1912. I had at that time made an X-ray examination

and as a result of that examination I found there was no trouble with

the bones, the bones were natural as the- should be. No break, no

fracture, no bones chipped off. The shoulder was normal as far as

the examination showed. There are three bones entering into the

shoulder joint, he had symptoms of pains and stiffness, and I looked

them over in a general way as any doctor would to see where the pic-

ture was to be taken. In the shoulder joint you have three bones, the

40 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

end of the collar bone and the shoulder blade and the arm bone.

These bones were in position, they were not broken and none of the

edges were chipped off. I am sure the bones were normal. The

shoulder joint was normal.

Cross-examination :

As to whether or not there are some things in a man’s shoulder

that do not show in an X-ray picture, I will say the tissues of

59 course; it is a comparative shadow, a comparison of bone

shadows with other shadows. Ordinarily nerves do not make

a shadow. Sometimes alignments make a shadow. As to muscles,

you can see the comparative shadow on the pictures. The meat alto-

gether makes a shadow lighter than the bone. Cartileges make less

shadow than the bone, and sometimes they do not show at all. As

to whether or not, when the cartileges are injured between the bones

and the joint, it would necessarily show in any X-ray picture, you

would know whether the position was correct of the cartileges from

the picture; that is, if you knew the analysis of the picture and you

would know if it was in a comparative position. As to whether it

had mended or not showing in the picture, I do not know that I

ever saw a case where the cartilege was injured in that way. Some-

time- the cartilege does not show. You could tell from the picture.

I would not have to guess about it if I know the anatomy. As to

seeing one bone come up here and another bone come up there in a

picture and being able to tell whether the cartilege was between, not

being able to see it, the whole thing is a matter of professional opin-

ion. It is true while you get a picture it is not like looking through

glass. It is what I see. Comparative shadows is not all there is on

an X-ray picture. There are projections of different structures; you

mean by projection it makes a shadow in the picture. If you take

the plates in a proper examination you can form an opinion which

will be a professional opinion and make a diagnosis as to its condi-

tion. Whether I can see a man’s nerves and see whether they are

out of fix, if we were examining for a nerve condition, we examine

to see whether there was any injury to the bone, to see whether it

would affect the nerve. Answering your question if the nerves are

injured, or not injured, you cannot tell it by looking at a man

through an X-ray. Will say if I examine a shoulder and found the

bones are in position, that there is no bone out of position, I would

not say that the nerves are injured. You cannot see the nerves with

an X-ray. I will say yes if the nerve is displaced you could

60 not tell it by an X-ray unless there are some bone displace-

ments. You do not see the shadows of nerves. I would say

that the nerve could not be displaced in that way unless there was

some damage to the bone in the way you indicate. I do not think

that it might be displaced at one time and the bones afterwards be

in a normal position and the nerves not. As to us all thinking there

was something wrong with the nerves in this man’s shoulder joints

we made an ordinary clinical examination and an X-ray examina-

tion. The symptoms to be explained were pain and stiffness. I

found no bone displacement. There was a possibility then that there

LE SRL TERRE SREP ONN DNR eR a BUR Ur pert

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 41

might be an injury to the nerve. I expressed the opinion of a possi-

bility of an injury to the nerve.

Redirect examination :

By Mr. Allen:

The witness is handed two X-ray pictures.

Those are the X-ray plates that I made of Mr, Renn’s shoulder.

This indicates the dates. This was made in April and those in May.

{ put those labels on there, that is my own marking, so that I could

distinguish them; put there for that purpose. The result of a long

continued injury and its effect upon the muscle a severe injury to the

nerve, and would result in wasting and possibly paralysis. Take the

case of Mr. Renn: If from my examination of Mr. Wrenn there had

resulted an injury to a nerve from a fall that he had sustained, in

my opinion the character of that injury would be slight, because he

had slighi symptoms; the symptoms were pain and stiffness, As to

the outlook for an injury of that character to the nerve it is 10t very

serious. It will get well. The treatment for it in my opinion is rest,

and the second treatment sometimes we used massage, and sometimes

we used liniments, and things of that kind. We also use consider-

able electric treatment in those places. As to the success I have had

in the treatment of injuries of that character, the general re-

61 sult, neuriiis is a tractable disease. It is a disease that can

be treated successfully. Curable in most cases unless very

severe. The neuritis that existed here from my examination of him

I though was quite slight. Pain and stiffness the only stiffness.

He had no wasting at that time. This was two months after that.

Recross-examination.

By Mr. Simms:

It had existed long enough to show—from January to April. The

only symptoms that existed were pain and stiffness. Further symp-

toms would be wasting and paralysis and loss of sensibility in some

eases. Loss of sensibility is not paralysis. Paralysis is a question of

motion, and sensibility, is a question of feeling. They act hand in

hand; if a man’s arm is paralyzed, he has no motion and no sense

of feeling. They run hand in hand. He may have disturbed feel-

ings and emotion may be fairly good. Paralysis generally includes

both. There are grades of neuritis without paralysis. Neuritis means

inflammation of the nerves; and as to its being as painful a thing as

you can have, it depends. Sometimes they are curable and sometimes

they are not. I would say mild cases are curable and some severe

cases are not.

Redirect examination.

By Mr. Allen:

When I speak of a severe case, I mean when there is a severe

cases of wasting and atrophy of the muscles.

6—773

42 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

Dr. J. M. Burke,

Dr. J. M. Burke, a witness for the defendant, having been duly

sworn, deposes and says:

Direct examination.

By Mr. Allen:

I am a practicing physician of the State of Virginia and have

been for 25 years.

The court holds that this witness is an expert.

62 I am chief surgeon for the defendant Seaboard Air Line

Railway. I have occasion to examine Mr. J. T. Renn, the

plaintiff in this case. The latter part of April, 1912, he came to

me. The general superintendent sent Mr. Renn to me as having

been an old and faithful employee, and willing to do something for

him, etc., and he requested that I have an X-ray examination made

of him, and of course, I always at that time sent my private work as

well as railroad work, when it was at my home, to the best I could

find. I knew that Dr. Hazen wes the best, and he was sent to Dr.

Hazen by me for the X-ray examination, and I looked at his shoulder

joint, just made a physical examination of that and I found that

he had stiffness and pain in his right shoulder. Of course, I did

not express anything further to him until I sent him to Dr. Hazen,

and I afterwards notified Mr. Renn that Dr. Hazen would send these

plates, ete., and that he could find no crack or deformity and that

it might be due to an injury to the nerves; and that is the last I

have ever seen of Mr. Renn or heard of Mr. Renn, except the gen-

eral superintendent afterwards wrote me a letter in which he said:

When Mr. Renn came there he told me how he sustained this in-

jury; that he had to fix a pump at Cochran the first part of January,

and that he saw a freight train coming along, or that he was very

anxious to get to Norlina that evening and he was running for the

train and that he fell on his shoulder; and I asked him did the train

strike him or did he strike the train. It is natural for a doctor to

ask these things as I wanted to know how he fell and in what way.

The only symptoms I found was just stiffness and pain in this right

shoulder. I relied upon his statement as to the claim; I examined

the shoulder with my hands to see that the bones were in position

and they appeared to be in position, except that the stiffness in rais-

ing his arm. Neuritis means inflammation of the nerves. That in-

flammation of a nerve is a curable condition. Dr. Hazen ex-

63 pressed the treatment—massage. It depends entirely upon

its cause; you have neuritis from various conditions; all

kinds of things I would not like to go into. You give internal treat-

ment—inside—what Dr. Hazen said, baking the arm or limb—it is

sometimes called rheumatism. A great number of people call it

that. But the doctors call that rheumatoid-arthritis, that is known

as rheumatism, rheumatoid-arthritis. That can be caused or brought

vee an foes MS Re ae RES a Bais SPUR EES LEER ALS BRN POTTER

SEABOARD AIR LINE RAILWAY YS. J. T. RENN. 43

about by exposure to the weather as well as neuritis; it is all injury

to the nerves, alcoholism, all of those things. As to the tendency

toward the two diseases of that charatcer is concerned in a man over

60 years of age who has a great deal of work out in the open at

night and in cold weather, the tendency is to be continued; that is,

more or less it will be a congestion for a little while and it will get

better again. It is rather a continuous thing. It is considered sim-

ple thing unless a person gets so that they cannot use themselves.

Exposure to the weather is the cause that produces it. It is more

likely to produce it in a man over 60 years of age—the older you

are, it is more likely to produce it. The effect of long continuous

nerve injury of the muscles there would be positive wasting and

eventually if continued without proper nutrition, ete., there would

would be paralysis.

Cross-examination.

By Mr. Simms:

I do not swear that rheumatism and neuritis are one and the

same thing; one would be the effect of the other. You can have

per se neuritis, that is not rheumatism. Rheumatoid-arthities is

inflammation of the joint itself. That is not all that the big words

means, it means more than that; when you have rheumatoid or

arthritis, you are going to have fixation of the joint. It is a great

deal more than ordinary rheumatism. I would hate like smoke to

have a case of rheumatoid-arthritis. If I had neuritis, I would con-

sider myself a poor doctor if I could not eure myself very quickly.

I want to make a distinction in all cases of neuritis that get

64 better, the other conditions of rheumatoid-arthritis, it is very

serious. i did not treat this man. As to being such a good

doctor that I have gotten to be, chief surgeon of the Seaboard, all

of the doctors selected me and presented me to the Seaboard. I

have given all of my time practically to the Seaboard for the past

five years, with the exceptions of a few medical conventions that I

attended. A man may have neuritis, inflammation of the nerves,

caused by exposure or by a fall. Answering your question or trau-

matisia, as you doctors call it, violent injury and fall, I will say

no, if I said a fall that would would not be traumatism. If a man

takes carbolic acid he scarifies his mouth, but he does not hit him.

I told the company he was suffering with an injury to the nerve of

the shoulder. I have an exact copy of what I have said. I said to

the general superintendent that this neuritis, or supposed to be

neuritis, or injury to the nerve, may have been due to rheumatism,

or to a fall, or 33 things I could mention, that it may be due to, but

I wrote Mr. Renn a letter that I told him that this injury may be

due to an injury to the nerve; as to whether I expressed an opinion

that the man had an injury to the nerve, I said it could be caused

from a fall. As to my expressing an opinion that he had an in-

jury to his nerve, I did not to the company; I said to Mr, Renn it

might be an injury to the nerve.

eer er . — Wg Ht ESR ator

44 SEABOARD AIR LINE RATLWAY VS. J. T. RENN.

Redirect examination.

By Mr. Allen:

From my physical examination of him, I formed an opinion as

to the extent of the injury to the nerve referred to in that letter.

He complained of pain as well as immobility in his right shoulder

joint, and making an external examination of his bones, it felt as

though it was normal; and I sent it to Dr. Hazen to be more certain.

I thought the old man may have fallen on his right shoulder and

inflamed the nerve by reason of his fall. That is what I had refer-

ence to in that letter.

65 Recross-examination.

By Mr. Simms:

Answering your question with Dr. Hazen did not state to me

that Mr. Renn’s condition was due to an injury to the nerve, I will

say no.

I stated in a letter to Mr. Renn the doctor states it was an

injury to the nerve, but Dr. Hazen states he did not state

that to me. I made this statement to Mr. Renn on May 10,

1912. It was right after Dr. Hazen made his examination and re-

ported same to me. At that time I wrote to Mr. Renn that the doctor

says that your condition is due to an injury to the nerve, that is

exactly what I wrote him.

Redirect examination.

By Mr. Allen:

In writing that, I was evidently mistaken.

Dr. William Moncure.

Dr. Witt1aAm Moncurg, a witness for the defendant, having been

duly sworn, deposes and says:

Direct examination by Mr. Allen:

I practice medicine in Raleigh. My initial is W. Moncure, and

a graduate of the University of Pennsylvania, and have been prac-

ticing medicine since 1903; after graduating I had three years’ hospi-

tal practice in Philadelphia, and have been practicing medicine in

Raleigh since 1906,

The court holds that the witness is an expert.

I am connected with Rex Hospital here—member of the staff.

Have an X-ray machine there. I operate it; as to my experience

in taking X-ray pictures, don’t know exactly the number of pictures

that I have taken, but the last four years we have been operating

there and taking a number of pictures each week. I am_not con-

nected with the Seaboard Air Line Railway in any way. Mr. J. T.

Renn came down to get an X-ray picture taken of a shoulder; I

IRPI SEES SN BPD EEE NG NO eR TIO KNOB NAPS ANE TAT: TRANS Sy ET SR ORR APS TL 4

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 45

made the picture. In doing that I took the clothing from

66 both shoulders; I took the picture of the right shoulder.

I looked at both shoulders. I stood him up before me and

looked at his shoulders. As to the condition I found his muscles to

be in regarding wasting, I found no evidence of wasting or diminished

size in the muscles on either side. They were equal. The muscles

were round and normal outline in comparing one side with the

other as far as the eye is concerned and feeling. Comparing the

right and the left, they were even; that is, examining him by in-

spection. The muscles appeared to be normal. I took that X-ray

picture and as result of it, 1 found that the bones of the shoulder

were perfectly normal, no indication of any break or previous break,

or any part of the bones being simply broken, like chips or bone

that may occur; in my opinion the bones of his shoulder are in

normal condition and normal relation to one another. I found no

indication at all of anv chips of bones; IT made this examination at

Mr. Renn’s request. He never came back to see me after I made

the X-ray. The effect on the muscles of long continued injury to

the nerve would result in paralysis, wasting, shinking of the muscles.

My opinion as to whether any injury to a nerve is curable, where the

injury resulted in striking the shoulder upon the ground from a

fall, without any displacement of the bone, and injury to the nerves

from a fall on the shoulder without any injury to the bone, would

of necessity be slight and therefore, the probability would be it was

curable, The treatment is absolute rest, and after that oceasionally

general tonics, internal medication, and later on measures like

electricity and massage. The symptoms of severe injury to a

nerve in the shoulder would be both sensory and motor symptoms,

a lack motion, paralysis with wasting and disturbances of the senses,

and disturbances of nutrition of the part, and the skin and surround-

ing tissues. I found none of these indications in my examination

of Mr. Renn.

67 Cross-examination.

By Mr. Simms:

As to observing stiffness. he complained of stiffness and some little

pain in raising his arm. Answering vour question, if the muscle was

strained it would not show in an X-ray picture unless the bones were

displaced, will say IT hardly know what a strained musele is, not

what you mean by it.

Redirect examination.

By Mr. Allen:

That is: my plate.

The defendant rests.

See ERE

46 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

Frank Parks. .

Frank Parks, a witness for the plaintiff, having been recalled,

deposes and says:

Redirect examination.

By Mr. Simms:

At the time Mr. Renn got hurt, there were no holes at the top

of that tank on the east side at that time.

Recross-examination.

By Mr. Allen:

I left there in 1912, April or May, I forget which. I went there

in August or September. I was not there in 1910 when they painted

it. I do not know what the carpenters did.

Redirect examination.

By Mr. Simms:

I know there was no hole there where the carpenters worked.

J. T. Renn.

J. T. Renn, the plaintiff in this action, having been recalled de-

poses and says:

68 By Mr. Simms: I did not know of any path on the west

side of that tank between that tank and the railroad track

coming up from the pump house.

Dr. A. W. Goodwin.

Dr. A. W. Goopwrn, witness for the plaintiff having been duly

sworn, deposes and says:

Direct examination.

By Mr. Simms:

I have been a practicing physician here in the city of Raleigh for

28 years. Graduated from the Bellevue Hospital and Medical College

in New York.

It is admitted that the witness is an expert.

I saw Mr. J. T. Renn after his injury that is here complained of.

I examined his right shoulder. J found at the time I examined

him some stiffness, limited motion, tenderness on pressure or by

manipulation, and seemed to me some slight elevation over the top

of the shoulder; in other words, there seemed to be a tenderness of

some of the muscles, or tissues over the shoulder. At the time I

FPO AT POD PRE

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 47

did not examine Mr. Renn further. I told Mr. Renn he ought to

have an X-ray photograph made, and | told him to have one made

and I did not go any further into examination. I saw the picture

made by Dr. Moncure, for a moment. I have not seen it closely.

As to my opinion whether it shows any abnormal location of the

bones, will say very slight, if any. The position of the bones is

normal. Seemingly as to the condition as position to each other.

There appears to be a thickening of this part of the clavicle. Could

I ask Dr. Moncure as to the position of this man when this picture

was taken? On his back, shoulder elevated, slightly upward, slightly

oblique. It shows a little in this, chiefly in the different position,

that is the only thing that I can see. No ininry to the bone. As

to that thickening, that might be pro ed by chronic in-

69 flammation of the periost-um of the boue. I stated to Mr.

Renn at the time I thought there was some injury to his

shoulder. I was not permitted to make a diagnosis without the X-

ray photograph or further examination.

Cross-examination.

By Mr. Allen:

He came back to me once after that. I looked at him superficially

and told him that I could not relieve him and told him that it was

[not] necessary to take any medical treatment unless he was going

to have it leoked after as he should. 1 wanted to see an X-ray picture.

I wanted to know whether the bones in there were normal. I told

him he would have to do that before I could make a diagnosis. I

did not determine whether I could properly treat him or not, be-

cause I did not get this X-ray picture for the basis of my diagnosis.

I see the other X-ray picture that you show me. This is not the

same bone. That is part of the scapular. That is in a different

position. This is the same position as Dr. Moncure took. That

seems to show the slight elevation. That is the clavicle. That is the

collar bone. There is some slight elevation that is supposed to be in

that. Does not show any injury to the bone? No; an injury to the

nerve does not set up a slight inflammation. The indications of

that externally are pain, limited motion, some disturbances of the

muscle. As to the internal indications, generally speaking, there

are none, unless there is some blow, not to the deep nerves. Gen-

erally speaking, treatment of inflammation to the nerves, by the med-

ical profession is successful, slight inflammation. After making a

diagnosis, I know what to do, what to attempt to do. If I made a

diagnosis with the X-ray, if I had made a true diagnosis, I would

have known what to do. The X-ray would have been valuable in

making the diagnosis. The indications were, and the symptoms and

the history, all gave suggestions that there was an injury to the

bone or cartileges. He complained of not being able to raise

70 his arm up. I have not treated him. I did not offer to

remedy it. He did not return. I examined him in March

after his injury. He stated to me that the injury was in January.

I did not get the date. I saw him in March after the injury.

48 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

Redirect examination.

By Mr. Simms:

The cartileges may be injured without the bones themselves. If

there is an injury to the periost-um, the membrane around the bone,

that would not show in any X-ray picture, not unless it becomes

ossified. ‘These membranes can become bruised and injured. In-

flammation of the nerve is a form of neuritis. As to whether some-

times you can cure that and sometimes you cannot, it depends upon

the extent of the neuritis and the cause of it.

Recross-examination.

By Mr. Allen:

As to my diagnosing this as neuritis, I suggested this to him at

the time, but I did not ever make a complete diagnosis; but he was

suffering evidently from neuritis at the time. As to being his family

physician, I treated his family sometime ago, and in the last eight

months I have seen his daughter. 1 do not think I prescribed for

him prior to this time.

Prior to that time I had been his family physician, and since

that time I had treated his daughter for an injury to the foot.

Dr. W. C. Horton.

Dr. W. C. Horton, a witness for the plaintiff, being duly sworn,

deposes and says:

Direct examination.

By Mr. Simms:

I live in Raleigh and have lived here 12 years; am a regularly

licensed physician under the laws of North Carolina and a

71 graduate of the College of Physicians and Surgeons of Balti-

more; am & member of the Medical Society. Have been

engaged in the practice of my profession under license for 18 years.

It is admitted that the witness is an expert.

I examined Mr. Renn, the plaintiff here. 1 examined his right

shoulder, drooping condition of the shoulder; that is the scapula,

muscular and ligamentous attachments were drooping; the right

shoulder. There was a nodular feeling under the skin of the upper

art or top of the shoulder, which at first examination felt like a

reak of the clavicle or collar bone. I was not satisfied with that

external examination, so | made an X-ray picture of him. This

X-ray picture proved it to be not a break in the c-avicle, but a loosing

of the acromion-clavicular joint, allowing the clavica/ to stand up

higher than it should, and the scapula, or the shoulder blade, to

droop. It is between the acromion clavicular—that is the joint,

where the collar bone comes around and joins with the acromion

process of the scapular. That process is where it comes up and

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 49

forms a protection for the shoulder joint, and this collar bone or

clavicle has a little facie on that acromion process, and has a whirl-

ing ligament between those joints, which serves as a pad, or pro-

tection betwen the bones, and that joint is protected by several liga-

ments—the acromion clavicular ligament and several other liga-

ments. I do not know the name of all of them that form a pad

around that joint that hold it in position, and evidently there was

some tearing .f those ligaments, breaking loose of those ligaments,

that allowed tne line of continuity, or the proper union, to be broken

without the breaking of any bones. The tearing of the ligaments

would not show in an X-ray picture, but the loss of proper position

of the bones and their continuous relation would show. The car-

tileges do not show in an X-ray, and if an imperfect condition or

displacement of the cartileges had existed you could not see

72 it. In my opinion I think the shoulder either from direct

violence against the shoulder or from other violence, I mean

such as a fall, will be torn loose from some of the ligaments binding

the acromion clavicular joint and cause the clavicle to rear up, as it

were, and the shoulder blade allowing to droop, and not permitting

the proper movements of the arm and shoulder. The cause of the

drooping the arm has not its proper play. As to whether his arm

did have proper play, it cannot be carried over his head without

excruciating pain. I have my picture with me,

Upon request the witness exhibits and explains this picture to

the jury.

This is the clavicle. There is the acromion process. Here is

the acromion. That is a ball and socket joint; there is where the

union or joint should be, and that is where it is. Now this picture

was taken with an effort on my part to try to bring the joint in

proper position. I forced the shoulder up, forced the scapular up,

and tried to take it as much as possible in a proper position. 1

mean by that you throw the scapular up in a proper position to the

e-avicle and that shows almost a good position. It can be forced

up, but it won’t stay. Now here is a very dim picture that I took

with the shoulder lying. You can see that if you look very closely.

I can see it and Dr, Burke can see it. There is a position with the

shoulder and the clavicle allowed to droop. It is not a good ex-

posure. You can see the top part of the clavicle coming a way up

here with the scapular with the acromion process drooping down, I

thing that is out of line three-eighths or one-half an inch—three-

eighths I would say. I will take that man’s clothes off and demon-

strate upon his shoulder if you will permit me.

The plaintiff strips from his waist up before the jury.

Stand up straight now, turn loose; I am not going to hurt you.

Let every muscle perfectly loose. (Illustrates.) That is straining

the muscles of the shoulder up to the proper position, even though

he turns it loose absolutely.

7—773

50 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

73 Cross-examination.

By Mr. Allen:

I found Mr. Renn’s left arm all right. The muscles of the right

arm are larger than those on the left. I see no indications of atrophy

of the muscles of the right arm. I examined the plates that Dr.

Moncure had, In so far as I know it is an X-ray of the same

shoulder. That corresponds with my X-ray, in which I have forced

the shoulder. I mean that conforms to my best plate. As to my

other plates being very perfect as an X-ray picture, it is perfect

enough for me to see. Nothing like as perfect as this one. It is not

as perfect an X-ray as this one, This picture is taken from the

rear. ‘That shows the bones. It was taken from the same position

as mine was taken. That is a better plate than the second plate I

showed. It is plainer. I do not know about its being a better

plate. You can see it. As to showing on there where there is any

abnormality of any kind, well, the line of continuity should be

more correct than it is there. That shoulder is drooping. He has

not a normal shoulder in that picture. It is not a normal] shoulder

from this picture. Ag to its being a normal shoulder, from this

picture this picture is nearer the normal position than any other. |

do not know whether it was forced up or whether it was lying in

the proper position to show it, but it shows the line of continuity

better than any of the other pictures. That does not show any

deformity in the bone or the shoulder. I would consider that a

normal picture, and in this picture I forced the shoulder up as far

as I could get it, forced it up with my hands as far as I could get it.

I do not know about pushing it further than it was in this picture,

I did not have anything to do with this picture. It does not appear

to be any higher in this picture than in this picture. In fact, that

shoulder there looks as if it was forced a little higher, because the

line marking the muscle and the skin is more at right angle. In

examining him I found that his left shoulder drooped more than

his right. That is the well shoulder. The whole side drooped.

The ieft shoulder drooped more than the right, that was in

74 the curvature of the spine; he was bent to one side. Any

long continued injury to the nerve of the shoulder would

result in atrophy of the muscle if the injury was sufficient to destroy

the motion in the muscles. I did not see any indication of atrophy

in his right shoulder. That would not indicate any serious injury

to the nerve, no injury sufficient to destroy the action of the muscle,

You can have an injury to the nerve. You see a nerve can be

injured and not killed. An injury occurring three years ago that

would show an atrophy of the muscle. The muscle there is not

destroyed, and that could not have been that kind of an injury. I

would not say in my opinion if there was any injury there over

three years ago that that injured nerve had become normal or well.

As to my opinion whether that is true or not, as there is no indica-

tion of wasting, as I said before a nerve can be injured and not

destroyed. I mean a minor injury. As to an injury which con-

RGSS CREE ERS ES OLE A NEE ROLL MU te ALPERT THEA ORO ET

ae. ae ae! ee ee ee Se ee ee ees ee

Se ee ee ee oe a. ee

SS SY =. l(c rr,.hC!; OrmUCUC]!DT!lUC(C Ow

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 51

tinued three years showing up on the arm if the injury was suffi-

cient to kill the nerve, if the injury was of sufficient gravity to

kill the motion of the muscle, it would cause atrophy in the muscle,

If it was a severe injury to the nerve, the muscle would not neces-

sarily atrophy; a muscle atrophy is because you do not use the

muscle. As to an injury to the nerve being generally curable it

depends upon whether the cause of the injury is removed. If there

is a constant pressure on the nerve you cannot cure that. In my

X-ray examination I did not find any indication of fracture, or

chipping of the bone, of any break of the bone of any character, or

anything about the bone that would cause a pressure on the nerve.

As to my opinion that any injury to the nerve which resulted

from this fall must have been of a minor character, there not being

any pressure upon the nerve, I am not prepared to say whether it

was of minor character. It could have been of grave character, and

gradually recovered. It could have gone back. As to whether very

frequently that condition of the nerve is constitutional not in

75 the sense of a traumatic injury. Will say you can have

local neuritis from pressure or temporary pressure, or you

can have neuritis from a generally nervous condition. When the

pressure is removed the neuritis is cured up if it is due to pressure.

You can have neuritis from exposure to the weather. That is some-

times mistaken for rheumatism or called rheumatism by the laity.

Redirect examination.

By Mr. Simms:

A man’s right arm is usualiy larger than his left if he is right-

handed. Especially if he is a man engaged in manual labor, work-

ing with tools and plumbing. Although an injury to the nerve

may be such that if a man did not keep on trying to use his muscles

the muscles would atrophy. Nevertheless if he kept trying to use it

the muscle would not shrink away, although it might shrink away.

By atrophy IT mean shrinking away of the muscles. You see the

biceps are here. (Indicates.) This is controlled by the deltoid,

and a man can keep up the usefulness of the biceps without the use

of the shoulder; the shoulder might remain immobile and use his

biceps, the shoulder can be absolutely fixed and then keep the biceps

in proper strength. The biceps are these muscles here in the arm.

(Indicates.) As to his ability to use his arm above his head, this

way, it is impossible to get it over his head as far as T have found.

I have tried it with him and tried to lift it myself. Tried to get

him to do it unaware, that is without his knowledge of what my

effort was for. It was painful to him and he carries his body over.

(Illustrates.) That will throw him if you strain him up.

Recross-examination,

By Mr. Allen:

You can carry his arm this high nearly out straight before you

notice that he has his body bent and his spine curved. I have tried

Se ESRD:

.

%

;

;

bi]

i

#

AbD nee 2 ee, Ate

52 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

to throw it right up. I say that the muscles of the shoulder and

the condition of the shoulder has no effect on the biceps, not

76 the keeping of the biceps in trim unless it destroys the action

of the biceps. You can lift with the biceps, It has no effect

upon the triceps. When you hold it up to drink water that brings

in the action of the shoulder. If a man can drink water with his

right hand it shows that the shoulder is not entirely immobile. Ags

to whether if a man can sit in this chair in that position would indi-

cate that there was mobility of the shoulder. (Illustrates.) That

would indicate that you can get the shoulder at right angle. You

are leaning forward. That would indicate less immobility as long

as you do not bring it at right angles. He ean sit like this (indi-

cating), because I have carried it up that far. As to his using his

arm in this way (illustrates) it is impaired in so far as the deltoid

muscles are brought into motion. You ¢an do this (illustrates) and

keep your shoulder perfectly fixed. As far as these muscles here are

concerned he is not affected. The arm is not perfectly useless. He

can use his arm in that way as far as I can tell. I have not treated

Mr. Renn. He has not asked me te treat him. He has done noth-

ing but ask me to make this X-ray examination. He did not tell

me when I made the first one that he had a suit against the railroad

company. After IT examined him, after I was summoned to court,

I asked him to come and let me make the second one. I was con-

vinced myself but I did not know whether you would be. He did not

ask me to treat him.

Mr. Allen, counsel for defendant, asks that the doctors subpcenaed

here by the defendant be allowed to examine the plaintiff, J. T.

Renn.

This is objected to by Mr. Simms, counsel for the plaintiff, on the

ground that they have just done so while he was stripped before

the jury.

C. A. Maynard.

C. A. Maynarp, a witness for the plaintiff, having been duly

sworn, deposes and says:

77 Direct examination.

By Mr. Simms:

I live here in Raleigh and work for the Seaboard; working for

the Seaboard on the 14th of January, 1912, when Mr. Renn got

hurt. I was wrecking car foreman. I did not see him get hurt. I

saw the place where he said he got hurt. I heard him describe

the place that he was hurt. I have seen the place before that time.

As to the condition, well, there was ice around the tank. Come

off a slope all around the tank, something like that, and behind I

would call it on the east side of the tank; the railroad track ran

north between here and Richmona, and on the east side, all of the

way around there was a slope of ice all around the tank, two or

three feet thick, which ran off the tank; that was on the east side

Saber e2term Ay ih anuterene: oy eens a. d : ee

5 Sa esd TR Re Rae Saray ROOM LL ELS PLLIOE LE LATS TOE Re OT 0 | ea

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 53

of the tank and all around the tank, except on the side the track

was on, there was ice all around the tank. I had been on the siding

there before night. I went there to pick up a car, and picked it up,

and sixty-six (66) as it was then, it was running late, and we waited

until after dark and IJ noticed where they put water in the tank

for the trains, it ran over and there was a great deal of water be-

tween the pass track and the main line; there was ice over there.

As to whether it snowed in the late afternoon or whether at the time

Mr. Renn was there it was snowin-, it seems to me it snowed that

night after dark. During the day, while I was there, I seen the ice

at the place where he said he fell. There was a path around the

east and south side of the tank leading around between the tank

and the tool house. As to its being the usual path, I cannot say.

It was the only path. It was the only path without going down

the track that I know of. I have been there in the summer and in

the winter time and there was a path back of the tank. I cannot

say that I saw any path between the tank and railroad track at all.

I saw Mr. Renn after he got hurt that night. The first I say of

Mr. Renn at all, was when he came to the back of my shanty

78 car and I] was at the steps when we started off; I went to the

steps and Mr. Renn and Mr. Parks were out there and Mr.

Renn seemed not to be getting along very well and I ran out and

helped him in. He ordered in our car to Grandy, Virginia, and

I had a car to pick up there and I picked it up and went back in

the car with him; he staved in the shanty car by the far, and I went

back in the car with him and went from there to Shelton and

he wanted some fittings for the pump and wanted me to go down

there to get them for him, to go with him, and T said, you will

have to show me what you want and I went down there with him,

and I broke open a barrel and got them out and got back on the car

with him end went from there to Norlina and there he got off.

His condition while in the car—well, Mr. Renn was complaining of

his shoulder. He claimed that he was suffering right smart pain.

I have been working for the company eleven years and I knew Mr.

Renn before he went to work for the company twelve or thirteen

years. I know his general character; it is good. I have seen him

since he got hurt. His condition with respect to his shoulder, he

has been complaining along at times. Every time I would see him

I would hear him say something about it.

Cross-examination.

By Mr. Allen:

I did not know that he drew $90 a month from the Seaboard for

thirteen months after that, but I knew he was working for the

Seaboard and continued to work for them: I do not not know much

about the duties of the pump repairer. It takes a pretty good man

to fill it. The worst weather is when he has the most trouble. As

to the number of times T have been at Cochran, T had laid there in

the pass track at night and slept and have laid there in the summer

time, when it was too hot to sleep, and have gone and slept under

54 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

the tank; I did not live there. I do not know what time I

79 got to Cochran from that wreck that evening. It was not

after dark when I came back and Mr. Renn got on my car.

I did not get off my train then. I did not get off on the way up.

I will say that I had to pick up a car coming back, and 66 was late

and we could not get by. I did not stop on the way to the wreck.

I stopped coming back; that is, when Mr. Renn got on. As soon as

66 came by we pulled out in a few minutes. I had been around

the tank before dark. There is a slope from the pump house to the

tank; it is something like 200 yards. Down there it is a fill about

18 or 20 feet up to the track. I know where the over-head bridge is,

the slope commences there and slopes on down to the pond. On the

east side of the over-head bridge, there is 4 slope there a little ways

and then there is a drain and then there is a tank and then down

here is the pump house. It is something like this: There is a drain

between the overhead bridge and the tank. I suppose the tool house

is n&t over 20 feet from the tank, not much more than that. I could

not say for certain. Going to the east from the tank there is a slope.

I have never seen that tank overflow. If the tank overflows, I think

I would know which way the water would run if it hit the ground.

It would be bound to run down hill, and I know the slope. It would

not all run towards the pump house. Tank is north of the depot--

that little knoll there—if I remember. That tank is set up on a

concrete base; I never noticed the places cut in the back of the tank

where the water overflows to the east. 1 do not remember that I

have seen a place cut in the top of the tank in a V shape. I have

been up on top, it is a good climb. As to whether it is a good climb

to climb up into and then into this tank, I have never done that.

You have to do that to fix the valve in the tank. You have to do

that to get to it. I could not say that I have ever noticed the air

valve on any of those tanks. As to water running out when the

engine is taking water, there is an air valve that comes down under

there, which runs up and goes back to give air when you

80 pull the rope to raise the valve if you have not got one, I

notice it will jerk vou like that. (Illustrates.) Sometimes

they will jerk you with them. It is a small pipe, about an inch

pipe, and water runs out of that continuously while they are getting

water. In getting water they pull the goose neck down. There is

air in the tank of the engine, and when you put in the water, that

bubbles up, unless you are careful. The whole weight of the water

in the tank is on jt, and it will bubble up and run over the side of

the tank unless you watch it closely. That takes time; very few of

them do that, as it will delay trains. When you finish taking water,

you turn the goose neck up, and some little water runs out, unless

you let it drain. You expect to find water around the water tank;

you usually find water around the water tank, and in very cold

weather, that water is ice. I would say that was terribly cold weather.

I was in it; it was the worst weather I ever saw. I left here the

night it started to snow and I do not know how long I was out; and

nearly froze that night. As to the effect this bad cold weather had

on our engine, our steam gauge froze up. I do not say it did that

SEABOARD AIR LINE RAILWAY VS. J. T. RENN. 55

night. Anyway, it was very cold. I could not say that the night

of January 14, was the coldest night that we had during that spell.

There was ice all around the station at Cochran. Ice on the rail-

road embankment; ice going down that path to the pump house,

and ice on the pump house pond. I went to the pump house pond

and looked at the valve that was bursted. There was thick ice

there, of course, that was not slick ice, it was rough, where you had

been walking. It was not slick there, it was rough where you had

been walking, where the foot prints were; there was snow on the

ground and had this sheet of ice on top, and it would break through,

because I went down there. If your weight would not break through,

you would naturally skate on it. I did not run any there. I was

careful where I walked. I have not been out, but only went

81 out when I had to. I had to go out and get up a car, and

after I did that I did not go out. We were right opposite

the water tank. There is a main line and pass track, three tracks

there. We were on the middle track. I do not think Mr. Renn told

me that he fell between the main track and the pass track. I could

not tell you where he told me he fell. He told me that he fell by

the water tank. I could not tell you what point around the water

tank he told me.

John Riddle.

Joun Rrppve, a witness for the plaintiff, having been duly sworn,

deposes and says:

Direct examination.

By Mr. Simms:

I live in Raleigh and know Mr. Renn; have been, knowing him

ever since he has been here. Do not know how long that is. I

know his general character, and it is good. I know Mr, Parks. I

know when he came to Raleigh and took the Raleigh yard; he stayed

here about a year. I have known him about six years. I know his

general character; it is good.

R. H. Hester.

R. H. Hester, a witness for the plaintiff, having been duly sworn,

deposes and says:

Direct examination.

By Mr. Simms:

I live in Raleigh and know Mr. J. T. Renn, and have known him

about ten years. I know his general character; it is good. 1] know

Mr, Frank Parks, and have known him for about one and one-half

years. I know his general character; it is good.

Cross-examination.

By Mr. Allen:

I knew Mr. Parks when he was here several years ago.

56 SEABOARD AIR LINE RAILWAY VS. J. T. RENN.

82 D. H. Mangum.

D. H. Manaum, a witness for the plaintiff, having been duly

sworn, deposes and says:

Direct examination.

By Mr. Simms:

I live in Raleigh and know Mr. Renn, and have known him

something like 25 years. Insofar as I know, his general character

is all right. I do not know Mr. Parks.

J. J. Mann.

J. J. Mann, a witness for the plaintiff, having been duly sworn,

deposes and says:

Direct examination.

By Mr. Simms:

I live in Raleigh and am employed as baggage master on the

Seaboard. I know Mr. Renn and have known him 10 or 12 years.

I know his general character; it is good. I saw him a day or two

after he got hurt at Norlina, he seemed to be suffering some with

his right shoulder, and he had it in a sling, made out of a handker-

chief and seemed to be suffering right much. I did not talk with

him at that time. I was busy; he came in and asked me to write a

telegram to the superintendent that he was going home, that he was

sick, and I wrote the telegram. I marked it to the superintendent,

copy to the division engineer and put it off at Ridgeway. He said

that he was unable to work. I saw him after that. He was toting

his arm up and complaining of his shoulder here.

Cross-examination.

By Mr. Allen:

He kept on working for the Seaboard. I suppose he was drawing

his pay. He would not work if he had not. The way he told me

that he got hurt, he said that he fell at Cochran, just as he

83 was going on the track, slipped on the ice and fell. I do not

remember that he said he was running to catch the train.

He said that he was going to catch the train.

The plaintiff rests.

A i ee on — — . - o- esa

SEABOARD AIR LINE RAILWAY V8. J. T. RENN. 57

J. T. Renn.

J. T. Renn, the plaintiff in this action, having been recalled,

deposes and says:

Recross-examination.

By Mr. Allen:

Plaintiff identified thirteen salary checks which he received from

the Seaboard Air Line from February, 1912, to March 5, 1913. The

difference between the amount of those checks and $90.00, was de-

duction for commissary and other deductions.

Dr. C. M. Hazen.

Dr. C. M. Hazen, a witness for the defendant, having been re-

called, deposes and says:

Redirect examination.

By Mr. Allen:

I looked at Mr. Renn while his clothes were off. As to whether

there is any abnormality, his right shoulder is normal, I am sure.

I looked at it, I did not feel it. In comparison with the left shoulder,

the only difference is that the muscle of the right shoulder is larger

than the left. The deltoid muscle. There is nothing to indicate

any atrophy. I would say that there has been no injury that would

affect the fidelity of the muscle. When I made these X-ray pictures

I placed Mr. Renn in two positions from front to back, and the other

from back to front. I left his shoulder lay in normal position on

the table, without manipulation. That is true in each of the pictures

that I took. From examining this in my opinion seems to

84 be a normal position; that does not indicate any injury to

the bone or periosteum, and no displacement. As far as that

picture shows, there is nothing to interfere with the nerve at all.

Recross-examination.

This text is long and has been trimmed here. Open the source document for the complete record.