# Transcript of Record — Seaboard Air Line R. Co. v. Renn > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0162%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1916 - **Citation:** 241 U.S. 290 ## Text (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. 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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-arthri [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0162%3A1. Public record. Not legal advice.