Transcript of Record — Baltimore & Ohio R. Co. v. Whitacre

(24,590)

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1915.

No. 374.

THE BALTIMORE & OHIO RAILROAD COMPANY, PLAIN-

TIFF IN ERROR,

v8.

HARVEY W. C. WHITACRE.

IN ERROR TO THE COURT OF APPEALS OF THE STATE OF

MARYLAND.

Original. Print

1

Order for appeal

Bills of exceptions

Dr. Thomas W. Koon, Dr. G. L. Broad-

rup, Dr. James T. Johnsen, and Dr.

J. H. Spicer

Rule 808, January 1, 1913

Testimony of ©. G. Treisler........... brie a eae ere

James P. Gaffney

Be De DO nt tbs ccresveivscisvivees

H. C. McAdams

L. J. Wilmott

& Jupp & Derwerter (INc.), Painters, WASHINGTON, D. C., FeskuaRy 25, 1916,

2 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

corporation duly incorporated under the laws of the State of Mary-

land, since before the happening of the injuries hereinafter com-

plained of, and was at the time of the happening of the said injuries,

and still is, a common carrier by railroad, engaged in commerce

between the States of the United States, and particularly between

the States of Maryland, Pennsylvania and West Virginia, and that

the said Harvey W. C. Whitacre, on or about the 23rd day of June,

1913, while a servant of the said Baltimore and Ohio Railroad Com-

and in its employ and service, at or near the City of Cumber-

fand, Allegany County, State of Maryland, in connection with the

receipt, delivery and transfer in transit of property being trans-

ported by railroad from one State of the United States to another

State of the United States, to wit: to and from the State of Maryland

into the State.of West Virginia and employed as a brakeman on the

freight cars of the defendant, which cars were then and there being

transferred and transported by railroad from the said City of Cum-

berland, State of Maryland, to certain other points in the State of

West Virginia, which cars were being used then and there

4 for the purpose of commerce between the State- of Maryland

and West Virginia, and loaded with coal freight for ship-

ment from the said State of Maryland, into the State of West Vir-

ginia, and it then and there became and was the duty of the said

defendant to provide safe appliances, machinery, works and other

equipment for the said railroad and its employees, and to protect

its employees from any injury that might result from unsafe and

dangerous or inadequate machinery and appliances; and that the

said plaintiff was then employed by the said carrier in such com-

merce, and: that while the said Seve W. C. Whitacre was s0

employed by said carrier in such commerce, at or near the City of

Cumberland as aforesaid, and in the discharge of his duty as an

employee of the said railroad company, the freight train on which

the said plaintiff was employed, was standing on the tracks of the

said railroad, in the South Cumberland Yards of the said Railroad

Company, which said cars were then and there being used for the

purposés of interstate commerce, that is to say, for the purpose of

transporting said coal freight from the State of Maryland to the

State of West Virginia, and that then and there, on the said 23rd da

of June, 1913, the said Harvey W. C. Whitacre while so employ

and jn discharge of his duties as a servant of the said Railroad Com.

pany, left the engine and the said train of cars in the said yard a

aforesaid, on the said 23rd day of June, 1913, just before the saic

train started on its way from the said City of Cumberland, State o

Maryland, to the said State of West Virginia, and stepped across th

said yard in order to procure a tin cup for the use of himself an

the other trainmen on the said train of cars, which was necessary

for the use of said trainmen as employees of the said road, to carr,

on the engine of the said train; and while the said plaintiff was ther

and there in the said yard, and in the exercise of due care passin

along said yard in the night time, he fell into a cinder pit, whic

was built and negligently maintained in the said yard of the sai

HARVEY W. ©. WHITACRE. 8

defendant; said cinder pit being filled with water, and the top

thereof being covered with ashes, so that the cinder pit was con-

cealed in the darkness and the plaintiff could not see the pit and

avoid the dangerous place, and that the said plaintiff was then and

there exercising due care and caution on his part, but that the said

cinder pit was not protected by railing or otherwise, but was negli-

gently maintained by the defendant, and was a dangerous appli-

ance maintained by the said Railroad Company in the said

-) yard, and that in falling into the said cinder pit the said

plaintiff was thrown against the iron rails which ran across

and over the said cinder pit, and his ribs were broken, his chest

erushed in, his spine was injured, and he was thereby permanently

injured and disabled, and as a consequence thereof has been con-

fined to his room almost ever since, and can only walk with the

greatest difficulty, and has suffered the most intense physical and

bodily pain and mental anguish, all of which injuries were caused

by reason of the negligence of the defendant and its agents in so

carelessly and hegligently maintaining the said cinder pit without

adequate protection for the said employees; and that the said plain-

tiff was exercising due care and caution in passing across the said

yard from the said train, where he had gone to enter upon his duties

as an employee of the said defendant to assist in the transporting

of the said train from the said State of Maryland into the said State

of West Virginia, and that the said injuries occurred, after the said

plaintiff has entered upon his duties as such brakeman and and

employee of the defendant, and that the said injuries resulted in

whole by reason of the negligence of the officers, agents and em-

ployees of the said defendant, or by reason of a defect and insufti-

ciency due to its negligence in its cars, engines, appliances, ma-

chinery, works or other equipment; and that the said injuries were

wholly caused by the negligence of the said defendant and its

servants, and were not caused by any negligence of the plaintiff;

and that the said plaintiff is and has been a citizen and resident of

the State of Maryland since before the happening of the said inju-

ries, and that as a result of the said injuries the said plaintiff has

been permanently disabled in his spine, his chest, his legs and other-

wise, and is wholly prevented from pursuing any oceupation, and

has been put to great expense as a result thereof, and therefore he

brings this suit and claims $20,000 damages.

ALBERT A. DOUB,

Attorney for Plaintiff.

4 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

6 In the Circuit Court for Allegany County.

No. 124, Tr., Jan. Term, 1914.

Harvey W. C. WHITACRE

vs.

THE BALTIMORE AND OnIO RaILRoAD CoMPANY.

Now comes the defendant, the Baltimore and Ohio Railroad Com

pany, and by George A. Pearre, its attorney, for a plea, says:

That it did not commit the wrong alleged.

GEO. A. PEARRE,

Attorney for Defendant.

Rule Replication.

Motion and leave to withdraw plea and demur. /14, Feb. |

Demurrer sustained. Motion and leave to amend declaration

adding 2nd count, and same filed. Demurrer to each count. D

murrer to first count sustained ; also demurrer sustained as to secor

count and motion and leave to amend; and declaration amended |

adding a thd count as follows, to wit:

(2nd and 3rd Counts as follows.)

Second Count.

And for that the Baltimore and Ohio Railroad Company is al

has been a corporation duly incorporated under the laws of the Ste

of Maryland, since before the happening of the injuries hereinaf

complained of, and was at the time of the happening of t

7 injuries, and still is, a common carrier by railroad, engag

in commerce between the States of the United States, ai

particularly between the States of Maryland, Pennsylvania and W

Virginia, and that the said Harvey W. C. Whitacre, on or abc

the 23rd day of June, 1913, while a servant of the said Baltim

and Ohio Railroad Company, and in its employ and service, at

near the City of Cumberland, Allegany County, State of Marylat

in connection with the receipt, ~amat'y 4 and transfer in transit

property being transported by railroad from one state of the Uni

States to another state of the United States, to wit: to and from |

State of Maryland, into the State of West Virginia, and employ

as a brakeman on the freight cars of the defendant, which cars w

then and there being transferred and transported by railroad fr

the said City of Cumberland, State of Maryland, to certain ot

points in the State of West Virginia, which cars were being u

then and there for the purpose of commerce between the State

Maryland and West Virginia, and loaded with coal freight for st

ment from the said State of Maryland into the State of West \

ginia, and that under and by virtue of an Act of Congress of

COPY BOUND CLC

Seesaw. ee

HARVEY W. C. WHITACRE. 5

United States, duly passed and approved April 22nd, 1908, en-

titled “An Act relating to the Liability of Common Carriers by Rail-

road to their Employees in Certain Cases;” and it then and there

became and was the duty of the said defendant to provide safe appli-

ances, machinery, works and other equipment for the said railroad

and its employees, and to protect its employees from any injury that

might result from unsafe and dangerous or inadequate machinery

and appliances; and that the said plaintiff was then employed by the

said carrier in such commerce, and that while the said Harvey W. C.

Whitacre was so employed by said carrier in such commerce, at or,

near the City of Cumberland as aforesaid, and in the discharge of

his duty as an employee of the said Railroad Company, the freight

train on which the said plaintiff was employed was standing on the

tracks of the said railroad in the South Cumberland yards of the

said Railroad Company, which said cars were then and there being

used for purposes of interstate commerce, that is to say, for the pur-

pose of transporting said coal freight from the State of Maryland to

the State of West Virginia, and that it was the custom and duty of

the defendant to provide drinking water in a cooler on the tank of

said engines and trains and also @ tin cup for the use of the train

crew in charge of such trains so used in interstate commerce, and

that defendant’s servant, whose duty it was to provide and

8 place a tin cup on said engine, failed and neglected to pro-

vide such cup for said engine, and that upon discovery by

the crew of said train that said cup had not been provided, the

plaintiff was ordered by his superior in charge of said engine to go

after a tin cup and that in so doing the plaintiff was acting within

the scope of his duties as an employee on said train, and that then

and there on the said 23rd day of June, 1913, the said Harvey

W. C. Whitacre, while so employed and in discharge of his duties

as a servant of the said Railroad Company, left the engine and the

said train of cars in the said yard as aforesaid’ on the said 23rd day

of June, 1913, just before the said train started on its way from the

said City of Cumberland, State of Maryland, to the said State of

West Virginia, and stepped across the said yard in order to secure

a tin cup for the use of himself and the other trainmen on the said

train of cars, which was required for the use of the said trainmen

as employees of the said railroad, to carry on the engine of the

said train, and which the defendant negligently failed to provide;

and while the said plaintiff was then and there in the said yard, and

only a short distance from said engine, and in the exercise of due

care passing along said yard in the night time, he fell into a cinder

pit, which was built and negligently maintained in the said yard

of the said defendant; said cinder pit being filled with water, and

the top thereof being covered with ashes, so that the cinder pit was

-eoncealed in the darkness, and the plaintiff could not see the pit and

avoid the dangerous place, and that the said plaintiff was then and

there exercising due care and caution on his part, but that the said

cinder pit was not protected by railing or otherwise, but was negli-

gently maintained by the defendant, and was a dangerous appliance

E IN CENTER

————

6 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

maintained by the said Railroad Company in the said yard, and

that in falling into the said cinder pit the said plaintiff was thrown

inst the iron rails which ran across the said cinder pit, and his

nibs were broken, his chest crushed in, his spine injured, and he

was thereby permanently injured and disabl , and as consequence

thereof has been confined to his room almost ever since, and can

only walk with the greatest difficulty, and has suffered the most in-

tense physical and bodily pain and mental anguish, all of which

injuries were caused by reason of the negligence of the defendant

and its agents in so carelessly and negligently maintaining the said

cinder pit without adequate protection for the said employees; and

that the said plaintiff was exercising due care and caution in passing

across the said yard from the said train, where he had gone to enter

upon his duties as an employee of the said defendant to assist

9 in the transporting of the said train from the said State of

Maryland into the said State of West Virginia, and that the

said injuries occurred after the said plaintiff had entered upon his

duties as such brakeman and employee of the defendant, and that

the said injuries resulted in whole by reason of the negligence of the

officers, agents and employees of the said defendant, or by reason of

a defect and insufficiency due to the negligence in its cars, engines,

appliances, machinery, works or other equipment; and that the said

injuries were wholly caused by the negligence of the said defendant

and its servants, and were not caused by any negligence of the

plaintiff; and that the said plaintiff is and has been a citizen and

resident of the State of Maryland since before the happening of the

- said injuries, and that as a result of the said injuries the said plain-

tiff has been permanently disabled in his spine, his chest, his legs

and otherwise, and is wholly prevented from pursuing any occupa-

tion and has been put to great expense as a result thereof, and under

and by virtue of the provisions of the said Act of Assembly, an

action has accrued on the part of the said plaintiff against the said

defendant, which said Act of Congress is hereby made a part of this

declaration, and js hereto attached, and therefore he brings this suit

and claims $20,000 damages.

FRANK A. PERDEW,

ALBERT A. DOUB,

Attorneys for Plaintiff.

Third Count.

And for that, the Baltimore and Ohio Railroad Company is and

has been a corporation duly incorporated under the laws of the State

of Maryland, since before the happening of the injuries hereinafter

complained of, and was at the time of the happening of the said in-

juries, and still is a common carrier by railroad, engaged in com-

merce between the States of the United States, and particularly be-

tween the States of Maryland, Pennsylvania and West Virginia, and

that the said Harvey W. C. Whitacre, on or about the 23rd day of

June, 1913, while a servant of the said Baltimore and Ohio Railroad

HARVEY W. C. WHITACRE. 7

Company, and in its employ and service, at or near the City

) of Cumberland, Allegany County, State of Maryland, in con-

nection with the receipt, delivery and transfer in transit of

operty being transported by railroad from one state of the United

ates to another state of the United States; to wit: to and from the

ate of Maryland, into the State of West Virginia, and employed as

brakeman on the freight cars of the defendant, which cars were

en and there being transferred and transported by railroad from

ie said City of Cumberland, State of Maryland, to certain other

ints in the State of West Virginia, which cars were being used then

1d there for the purpose of commerce between the State of Maryland

1d West Virginia, and loaded with coal freight for shipment from

ie said State of Maryland into the State of West Virginia, and

vat under and by virtue of an Act of the Congress of the United

ates, duly passed and approved April 23, 1908, and titled “An Act

elating to the Liability of Common Carriers by Railroad to their

mployees in Certain Cases,” and that it then and there became and

as the duty of the said defendant to provide safe appliances, ma-

uinery, works and other equipment for the said pe and its

nployees, and to protect its employees from any injury that might

sult from unsafe or dangerous or insufficient or inadequate ma-

jinery or appliances and that the said plaintiff on the said 23rd

ay of June, 1913, was called as an employee in the night time for

uty as an employee on one of the trains of the defendant, and as

ich employee was required to be on the premises of the defendant

: its yards on or before two o’clock A. M. on said date, and that the

‘id plaintiff was then and there at twe A. M. on said date in the .

id yard of the defendant and employed by the said carrier in such

terstate commerce, and that the said plaintiff in the discharge of

is duty as an employee of said Railroad Company came to the said

ain in said yard in response to the command of the defendant, for

1¢ purpose of assisting in the transportation of said train, which was

anding on the tracks of said railroad in the South Cumberland

ards of said company, from the State of Maryland to the State of

Vest Virginia, the cars and engine and freight of which train was

1en and there being used for the purposes of interstate commerce,

iat is to say, for the purpose of transporting coal freight from the

tate of Maryland to the State of West Virginia; and that in order

» enable the crew of the freight trains of the defendant so engaged

n interstate commerce properly and safely to transport such trains,

it was the custom, usage and duty of the defendant to provide

1 drinking water in a cooler on the tanks of all engines attached

to trains engaged in interstate commerce, and also to provide

in cups for the use of the train crew in charge of all such trains so

sed in interstate commerce, and that the said defendant had in its

mploy a person whose duty it was to provide all such engines with

rinking water and drinking cups for the use of their respective

rew during the period of transportation of said trains from the State

f Maryland to the State of West Virginia, which drinking cups were

wned and kept in the storm room of the defendant in the round

ouse in said yard, and the defendant provided said cups and said

& THE BALTIMORE & OHIO BAILROAD COMPANY VS.

drinking water because it knew that the crews of said trains were not

‘willing to transport said trains unless the said defendant provided

such drinking water and tin cups for the use of said crew, and so to

enable them the better and the more safely and the more comfortabl

to transport said trains, and that on the night aforesaid the defend.

ant’s servant, whose duty it was, under his employment, to provide

and place one of said tin cups on said engine, in connection with

which the said plaintiff was employed, failed and neglected to pro-

vide such cup and place the same on the said engine for the use of

said crew; and that because of the failure of the said servant so to

provide said cup for said engine, it then and there became and was

the duty, according to custom, usage and the requirement of said

company and its needs to see that a cup was provided ; and that, ac-

cording to the rules of said company. it was the duty then and there

of each member of said crew, not only to discharge the special and

regular duties imposed upon him, but any other duties which any

member of said crew might discover had been neglected by any serv-

ant of said company which might be necessary for the movement of

said train; and that the said plaintiff, under the rules of the said

company, was then and there subiect to the orders of the conductor

of said train, or in his absence to the order of the engineer of said

train, or in his absence to the orders of the fireman of the said engine,

and that the conductor being absent and the engineer being absent,

upon the discovery by the fireman of said engine attached to said

train, that said cup had not been provided, the plaintiff was ordered

and directed by the fireman of said engine, who was then in charge

of said engine, to look up and search for the servant of said company

who had charge of said cups, and to secure a cup and place the same

on the said engine; and that the said plaintiff, in discharge of his du-

ties, and acting under the direction of said fireman, and within the

scope of his employment, stepped a few feet from said engine toward

said round house or store room in search of said servant who

12 had charge of said cups, for the purpose of securing such cup

and placing the same on such engine, for the use of said crew,

before.the said train started on its way from the City of Cumberland,

Maryland, to the State of West Virginia; and that while the said

plaintiff, in the exercise of due care, was then and there in said yard,

and near said engine and looking for said servant who had charge

of said cups, in the night time, on the said 23rd day of June, 1913,

he suddenly fell into a large cinder pit, which was built and negli-

gently maintained in the said yard of the said defendant, which pit

is and was situated in the central portion of said yard, where it is

surrounded by tracks for trains used for purposes of interstate traffic,

and where employees of defendant are required in numbers from

time to time, both in the night and in the day, in the discharge of

their duties in the movement of trains and for other purposes; said

cinder pit being filled with water, and the top thereof being covered

with ashes, so that the cinder pit was concealed in the darkness, and

the plaintiff could not see the pit and avoid the dangerous place, and

that the said plaintiff was then and there exercising due care and

caution on his part, but that the said cinder pit was net protected by

HARVEY W. C. WHITACRE. 9

railing or otherwise, but was negligently maintained by the defend-

ant, and was a dangerous appliance maintained by the said railroad

company in the said yard, and that in falling into the said cinder

pit, the said plaintiff was thrown against the iron rails which ran

across the said cinder pit, and his ribs were broken, his chest crushed

in, his spine was injured, and he was thereby permanently injured

and disabled, and as a consequence thereof has been confined to his

room almost ever since, and can only walk with the greatest diffi-

culty, and has suffered the most intense physical and bodily pain and

mental anguish, all of which injuries were caused by reason of the

negligence of the defendant and its agents in so carelessly and negli-

gently maintaining the said cinder pit without adequate protection

for the said employees; and that the said plaintiff was exercising due

eare and caution in passing across the said yard from the said train,

where he had gone to enter upon his duties as an employee of the

said defendant, to assist in the transporting of the said train from

the said State of Maryland into the State of West Virginia, and that

the said injuries occurred after the said plaintiff had entered upon his

duties as such brakeman and employee of the defendant, and that

the said injuries resulted in whole by reason of the negligence of the

officers, agents and employees of the said defendant, or by

13 reason of the defect and insufficiency due to its negligence in

its cars, engines, appliances, machinery, works or other equip-

ment and that the said injuries were wholly caused by the negligence

of the said defendant and its servants, and and were not caused by

any negligence of the plaintiff, and that the said plaintiff is and has

been a citizen and resident of the State of Maryland since before the

happening of the said injuries, and that as a result of the said in-

juries the said plaintiff has been permanently disabled in his spine,

his chest, his legs, and otherwise, and is wholly prevented from pur-

suing any occupation and has been put to a great expense as a result

thereof, and under and by virtue of the provisions of said Act of

Congress, an action has accrued on the part of the said plaintiff

against the said defendant, and therefore he brings this suit and

claims $20,000 damages.

FRANK A. PERDEW,

ALBERT A. DOUB,

Attorneys for Plaintiff.

Docket Entries.

Demurrer to amended narr. Demurrer overruled. Plea refiled,

and issues joined.

Trial and verdict for plaintiff and assess the damages at $5,300;

March 7, 1914.

Judgment on verdict in favor of the plaintiff for the sum of $5,300,

“a interest thereon from the date hereof till paid, and costs; March

Oth, 1914.

10 THE BALTIMORE & OHIO RAILROAD COMPANY V8.

14 Order for Appeal.

In the Circuit Court for Washington County.

No. 109, Trials, February Term, 1914.

Harvey W. C. WHITACRE

vs.

Tue BALTIMORE AND On10 RarILRoAp CoMPANY.

Edward Oswald, Clerk:

Please enter an appeal from the judgment in the above entitled

case to the Court of Appeals.

GEO. A. PEARRE,

LANE & KEEDY,

Attorneys for Defendant.

In the Circuit Court for Allegany County.

No. 109, Trials, February Term, 1914.

Harvey W. C. WHITACRE

vs.

Tur BALTIMORE AND Onto Rar~tRoAD CoMPANY.

At the trial of this action in the Circuit Court for Washington

County, before Hon. Martin L. Keedy, and Hon. Robert R.

15 Henderson, associate judges, and a jury, the plaintiff offered

the following testimony to prove the issues joined on his part:

Harvey W. C. Wurracrs, the plaintiff, being duly sworn, testified

on his own behalf as follows:

‘Direct examination.

(By Mr. Doub:)

What is your full name?

Harvey William Christopher Whitacre.

Are you the plaintiff in this case?

Yes, sir.

Where were you born?

Okonoko, W. Va.

When?

. August 26th, 1886.

Where were you reared?

Okonoko, W. Va.

When did you first enter into the employment of the B. & 0.

CPOPOPOPOor&

)

mo

$

_ 1894.

wee ae

o>

ile lita PRM

HARVEY W. C. WHITACRE, 11

A. A section man on the track.

Q. How long did you work on the track?

A, Until August, 1909.

Q. Since August, 1909, what has been your employment?

A. Brakeman on the east end of the Cumberland Division of the

altimore and Ohio Railroad.

Q. What is the east end of the Cumberland Division?

A. Cumberland to Brunswick is the east end of the Cumberland

jivision.

Q. What were your duties?

6 A. I was breaking.

Q. Did your train run from Baltimore to Cumberland?

A. From Brunswick to Cumberland.

Q. Your trains, how do they run?

A. They have two different rans—one runs to Cumbo Yards at

Tedgesville and another to Brunswick.

Q. Where is Cumbo Yards?

A. At Hedgesville, in West Virginia.

Q. How old were you at the time of this accident?

A. Twenty-six years and ten months.

Q. When did the accident happen?

A. Twenty-third day of June about two A. M.

Q. Are you married?

A. I have been married.

Q. Your wife is dead?

A. Yes, sir.

Q. Tell the jury how this accident happened?

A. On the morning of the 23rd day of June, the caller came to my

iouse about 1 A. M. and called me to go to Cumbo Yard. I left the

ouse at 1:30 A. M. and went to the caller’s office and reported. I

ot Engine 4153. Engineer Albright and Fireman Dyche. It had

en raining and was very foggy. Then I went from the caller's

fice down to the engine. When I arrived at the engine I found

nly Fireman Dyche there. I got upon the engine and put my

‘lothes on, and asked Fireman Dyche if he was ready to go, and he

aid :

(Whereupon the witness was about to state the conversation be-

ween Fireman Dyche and himself.)

To which conversation and any part thereof the defendant ob-

ected, but the Court overruled said objection and permitted the wit-

ness to state said conversation with Fireman Dyche as evidence,

shereupon the defendant excepted and prays the Court to sign this

ts first bill of exception, which is accordingly done, this 1st day of

June, 1914.

ROBERT R. HENDERSON. [set. ]

M. L. KEEDY. [ SEAL. |

17 After offering the evidence set out in the aforegoing bill

of exceptions, which is made a part hereof, as fully as if the

ane were here incorporated, the witness gave the following evi-

ce:

12 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

A. Fireman Dyche said “No not quite.” The tool boy had had

been there and had left him no tin cup, and he asked me to go and

hunt the tool boy and get a tin cup.

(Objection to any directions given him by the fireman and any

conversation had with him.)

(“There is no proffer to show that he was working under the

directions of the fireman.”

(We [plaintiff] proffer to show that the enginéer was absent and

the conductor was absent, and that under the rules and regulations

it was the duty of the plaintiff to act under the direction of the

fireman and that he was subject to the orders of the fireman.)

To the statement by the witness of his conversation with Fire-

man Dyche, the defendant objected, but the Court overruled said

objection, and permitted the statement of Fireman Dyche to witness

to be offered in evidence, whereupon the defendant excepted and

prays the Court to sign and seal this its second bill of exception,

which is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [sgat.]

M. L. KEEDY. [ SEAL. |

After offering the evidence set out in the aforegoing bill of ex-

ceptions, which is hereby made a part hereof, as fully as if the

same were here incorporated, the witness continued and gave the

following evidence:

A. And put it on the engine.

Q. Who had charge of the engine at that time?

(Objection ; objection sustained.)

And witness further testified :

Q. Who was there?

18 A. Fireman Dyche.

Q. Was the engineer there?

A. No, sir.

Q. Was the conductor there?

A. No, sir. The conductor did not come to the engine until we

got the train at Evitts Creek about one-fourth or one-half of a mile

away. :

Q. Did you see the engineer before the train started? Before the

engine was ready to start?

A. I did not see the engineer until I had gotten back from this

pit. Until after I had fallen into this pit. |

Q. Go on and tell what happened after the fireman told you

what to do?

A. I told Fireman Dyche I would, and i had my lantern and

took it and started to hunt the tool boy. I waiked up the track a

short distance and saw a light and saw it going and thought it

might be the tool boy just leaving the engine. I followed the light

and think I walked about twenty-five steps. The light was going

due west and cut right across north and disappeared behind some

HARVEY W. C. WHITACRE. 18

thing, which was an engine. I could tell by holding my lantern

up that it was an engine, and in order to avoid danger I walked

back several es ¥ east, and fell into this cinder pit, striking m

left hip and abdomen on the rail. This pit is nine feet deep. It .

has nine feet of water in it. These cinders when they are dum

out of the engine into the cinder pit th-y become wet and look just

like the ground.

(Objection; objection overruled; objection on the ground that

it is opinion evidence; Court says “He mav state in a general way

as to just what happened to him”; objection also that it involves the

conclusion of the witness. )

To which answer of the witness the defendant objected, but the

Court permitted the said answer of the witness to be given in evi-

dence, whereupon the defendant excepted, and prays the Court to

sign and seal this its third bill of exception, which is accordingly

done this 1st day of June, 1914.

ROBERT R. HENDERSON. [seat.]

M. L. KEEDY. [SEAL. ]

19 After offering the evidence set out in the aforegoing bill

of exceptions, which is hereby made a part hereof as fully as

if the same were here incorporated, the said question was answered

and the following evidence given:

A. In the fog with one of these railroad lanterns you cannot

tell it from the ground.

And the witness further testified :

Q. Do the cinders rise on top of the water? :

A. Yes, sir. The cinders rise on top of the water and make it

look like the ground.

Q. What is the ground covered with around the pit? ©

A. The ground is covered with cinders and the cinder pit and

ground surrounding looks alike.

Q. Which foot went ‘nto the pit first?

A. Left foot. The last step was made with my right foot on

the south side of the rail.

Q. The south rail is on the solid ground?

A. Yes, sir.

Q. What did you then do?

A. It rendered me unconscious after a while. I hung across the

rail for a while, with my hands hanging down into the water, with

my arms until I got my body up and pulled myself up on the rail.

I then got up on the track.

Q. Then where did you go?

A. To the engine as soon as I could.

Q. How many steps from the pit to the engine?

A. Twenty-six or twenty-seven steps, I suppose.

Q. Where was the engine with reference to the dump and the

coal tipple?

14 THE BALTIMORE & OHIO RAILROAD COMPANY V8.

sg The engine was almo:t opposite the coal tippel on the south

side.

Q. Which direction from the coal tipple? West or east?

20 A. They are almost opposite when they take coal, and

it was standing at the same place as when they put coal on

the track.

Q. What kind of a night was it?

A. It was a dark and foggy night. It had been raining.

Q. Is that a low place where the yard is with reference to the

surrounding country?

A. Yes, sir. It is. Potomac River is there and the canal and

almost one-half of a mile east Evitts Creek empties into it, making

ita var low place and a place for fog.

Q. How many tracks are over that cinder pit?

A. Only two over the west cinder pit.

Q. What a when you got back? Were you hurt?

A. Yes, sir. It made me very sick. As soon as I got out of the

water I commenced vomiting and I vomited a lot of blood.

Q. Was that before you came back to the engine?

Yes, sir. Before I came back to the engine.

What did you do before you came back to the engine®

I vomited blood and—( Witness is interrupted).

You came back to the engine?

Yes, sir.

Whom did you find there?

Engineer Albright and Fireman Dyche.

Where was Albright?

. Sitting on the seat in the engine.

Was Dyche there?

Yes, sir, *

What is his name?

John I think.

Did you tell them about the accident?

A. Yes, sir.

21 Q. Did you have any conversation with them?

A. Yes, sir. I told them of the injury.

(Objection ; objection sustained. )

Q. How soon did they start?

A. They were ready to go.

Q. What did you do?

A. I went out on the pilot as all brakeman have to do.

Q. Where did you go?

A. Went to Evitts Creek and backed into the yard. There w

got our orders and met Conductor Ambrose and Flagman Bobre

Q. What kind of a train was it?

A. It was a mixed train.

(Objection as it is not important; Court says: “It may be |

show whether or not it was engaged in interstate commerce.” )

Q. Where did this train go?

OPOPOPOPOoPorer

bo

bo

28

>O>O>OPo>ros.

-«

q Ps

pa

23

A.

HARVEY W.'C. WHITACRE. 15

Cumbo Yards.

(Objection; objection overruled, exception reserved. )

Q.

Did the engine 4153 take the train to Cumbo Yard?

(Objection ; objection overruled; exception reserved.)

A.

Q.

A

Q

A

Q.

A

Q.

grerer

Pore.

Q.

A.

Q.

A.

Q.

y

. How were you treated. What did you do?

Yes, sir.

Where is Cumbo Yards?

. At Hedgesville in the State of West Virginia.

. Was an accident report made out by the conductor?

. Yes, sir, At Hansrote.

Where is that?

. Thirty-five miles east of Cumberland.

Where did you ride on the way to Cumbo Yard?

A. On the cab on the left side,

Q. The engineer rode on the right side?

A. Yes, sir.

Where did the fireman ride?

He shovels coal and he was all over the cab.

Did you do any work going down?

. Yes, sir. Some.

How were you affected so far as the injury was concerned?

. I did not feel the effects of my injury except by being sick

vomiting blood until I got to Magnolia, but when I got off my

ine at Magnolia, I had very little use of my back.

Did you go to Cumbo Yard?

Yes, sir.

Did the train go to Cumbo Yard?

Yes, sir.

How did you come back?

. On a passenger train.

What passenger train?

No. 9.

. What was your condition?

. I was still suffering with my hip and back on the 24th, when

nt to Dr, Owens.

Who is Dr. Owens?

. He is employed by the Baltimore and Ohio Railroad Com-

to give first aid to the injured.

. I went home after I went to his office.

. Did you go to the hospital?

. Yes, sir. In a month.

Q. Under whose treatment?

A. Under Dr. Owens’ treatment. I went to the hospital

on the 28th day of July.

Was any operation performed?

Yes, sir.

Who performed it?

Dr. Hawkins.

What was it for?

46 THE BALTIMORE & OHIO RAILROAD COMPANY VB.

A. Hernia.

Q. Did you have any hernia before the accident?

(Objection; objection sustained.)

Q. How was your general health prior to this injury?

A. Good. I felt good. Nothing hurt me. ‘

oe you know of any ailments?

0

Did

No,

Di

sir.

you have any trouble with your hip?

sir

°

2 you have any trouble with your lungs.

0, sir.

How have you been affected since?

I have been suffering with my back, my hip and the left side

of my chest. — pe a

Q. Do you know of any cause for your suffering other than thi

accident?

A. No, sir.

«. How have ing been suffering with your lungs?

A. I have awiul pain in the left side of my lungs. I can not

sleep. I also cough much.

Q. How is your back affected?

A. My back is stiff. I can not stoop.

Q. t other physicians have examined you beside Dr. Hawkin

and Dr. Owens?

24 A. Dr. Koon, Dr. Johnson, Dr. Spicer and Dr. Gardner

Q. How long did Dr. Owens treat you?

A. From the morning of the 24th of June to the 20th of Decem

-

Q.

A.

Q.

A.

Q.

A.

Q.

A.

ber.

Q. Did he take you to the hospital again after the operation fo

hernia?

A. Yes, sir.

Q. What was that for?

A.. He took a hot iron and burnt my back.

Q. is that what he operated on you for?

(Objection ; objection sustained.)

Q. How were you treated on that second trip to the hospital?

A. Dr. Hawkins examined me.

Q. How did he treat you?

A. He took a hot iron and burned my back.

Q. How long were you there?

A. I went there on the 13th of October and left on the 15tt

Three days.

Q. Did you have any pain?

(Objection ; objection sustained. )

Q Do you suffer any pain now, Mr. Whitacre?

A Yes, sir.

@. I mean now? Do you still suffer any pain?

A. Yes, sir. Right now.

‘HARVEY W. C. WHITACRE. 17

I have a great misery in my lungs and my back and also

‘my hip when I walk around gives me lots of trouble.

>. cond os able to do any work?

. No, sir.

25 Q. Have you done any work sinec this accident?

A. No, sir.

ve you been able to do any work since this accident?

sir.

ere

S

3

Ss

=

F

ve to be assisted. I walk with a cane.

= anything about the use of water pails, etc., with

o>

¥

i

4

es, sir.

ave you a copy of the book of rules and regulations?

es, sir, I have a rule book.

me see it, please. What is this book, Mr. Whitacre?

is the book of rules of the Baltimore and Ohio Railroad

Q. Where did you get this book?

At the train master’s office.

. At Cumberland.

Q. Train master’s office of the Baltimore and Ohio Railroad?

A. Yes, sir.

Q. I see written on the book the name——

(Objection as he wants to offer certain portions of the book.)

(Mr. Doub:) I simply want to identify the book.

Q. Your name is H. W. C. Whitacre. Employed as Bkm. Was

that written there when it was given to you?

A. Yes, sir.

Q. When did you that book, Mr. Whitacre?

A. About Jan. 1, 1913.

Q. Did you have any other book afterwards?

26 A. No, sir.

Q. Nader ag ermgy—Soage to on at the time this book was

iven to you by the who gave it

4 A. He told i it Pe effective Jan. 1, 1913.

Q Who told you that?

A. Tommy Reese.

(Mr. Doub:) I now want to offer the book in evidence.

(Objection. )

(Book is withdrawn.)

Q. Do you know whether or not these rules in that book were in

force at the time of the accident?

<n I was instructed that the rules went into effect on Jan. 1,

13.

Q. Did you have thé book during that time, 1913?

A. Yes, sir.

2—374

<

POPeP

i na

Fe

18 THE BALTIMORE & OHIO RAILROAD COMPANY V8.

Q. Were you given any other book during that period?

A. No, sir.

Q. Had you had any other book before that?

A. Yes, sir. That was effective in 1903, as I remember, and this

book superseded the old book.

Whereupon the witness was asked the following question:

Q. Do you know what kind of supplies the company kept in its

store room for the use of the engines?

To which question the defendant objected, but the Court overruled

the said objection and permitted the question to be asked and the

testimony be given in evidence, whereupon the defendant excepted,

and a0 Mee Court to sign this its fourth bill of exceptions, which

is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [sEAt.]

M. L. KEEDY. [ SEAL. }

27 (Objection. What they kept in their store rooms has

nothing to do with it.)

(Mr. Doub:) We will follow that up by showing that they put

them on the engines. We just want to include this.

-(What they kept in their store rooms we object to.)

(The Court:) The proffer is to continue to show what they kept

in their store rooms and for the use of the engines.

(The Court:) Just name a few of the articles,

After offering the evidence set out in the aforegoing bill of ex.

ceptions, which is hereby made a part hereof, as fully as if the same

were here incorporated, the said question was asked and the follow-

ing evidence given:

A. Oil cans, lanterns, tin cups, ete.

And the witness further testified :

Q. Who has charge of those supplies?

A.’ The man at the store house.

Q. Where is the store house?

A. At the round house.

Q. In the yard?

A. Yes, sir.

Q. That is at the railroad yards?

A. Yes, sir.

Q. Were they kept there at the time of the accident?

A. Yes, sir.

Q. Who distributed those things to the engine?

A. Boys and men.

Q. When do they do that?

A. Just before the crew is called the boys place them on the

engines.

Q. Just before they leave the yards?

28 A. Yes, sir.

Q. How do they supply them?

——

COPY BOUND C

ee eno a ali

HARVEY W. ©. WHITACRE. 19

A. They take a large bunch of one kind of articles and leave

them in the yard, place them down there where he could get to

them when an engine was called so that he would not have to go to

the tool house every time he wanted a wrench, tin cup, etc.

(Objection to that as observations. )

(What period is he covered.)

Wit Court:) At the time of the accident?

Witness:) Yes, sir.

Q. von did the tool boy bring these articles down as you have

gg ?

‘A. When did they commence that, do you mean?

Q. With reference to this accident when was the tool boy accus-

tomed to carry those articles down?

A. At any time.

Q. Do you know whether or not they put those articles on engine

4153 on the morning of June 23rd?

A. What articles?

Whereupon the following question was asked :

Q. Those is question?

To which question the defendant objected, but the Court overruled

the said objection, and permitted the uestion to be asked, and the

testimony to be given in evidence, whereupon the defendant ex-

cepted, and prays the Court to sign this its fifth bill of exceptions,

which is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [seat]

M, L. KEEDY. [ SEAL. }

29 After offering the evidence set out in the aforegoing bill

of exceptions, which is hereby made a gab hereof, as fully

as if the same were here incorporated, the said question was asked

and the following evidence given:

(The Court suggests that the question of the tin cup be argued

now.

Aa the witness further testified :

Q. At what time in the morning did this accident occur?

A. A little after two A. M.

Q. What time were you called?

A. The caller was at my house at one A. M.

Q. What time were you called?

A. Two A. M.

Q. What kind of a brakeman were you?

A, Front brakeman.

Where was the place of front brakeman?

A. At the front of the train. At the head of the engine.

Q. Mr. Whitacre, have you described as carefully as you can the

place where this accident occurred?

A. Yes, sir. : ee

Q. Would you be able to identify this picture? Look at these .and

what they are? (Witness is shown pictures. )

OSE IN CENTER

——_———

20 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

A. Yes, sir. That is a picture of the cinder pit.

o At what time?

Q. Look at this one.

A. Yes, sir. That is a picture of the same place.

Q. That is a fair representation of the cinder pit? A definit

A. Yes, sir.

30 Q. State whether or not that fairly represents it as it we

at the time of the accident? .

A. (None given.) (No objection to admitting that.)

Q. Will you take this photograph and explain to the jury wher

the water is located that you spoke about?

A. It is all water from this rail (indicating).

(The witness is now speaking of plaintiff's photograph marke

August 13, No. 2.”)

This is a track and there is a track over there and the water |

from the first rail of this track to the farthest rail of the other trac

under the two tracks.

Q. What supports the rail over that water?

A. In here? (indicating.)

Q. Yes?

A. They have concrete post in there. They support the rail.

Q. Where was the engine standing with reference to some object

A. This is the view of the left side of the coal pit. This pict

was taken on the south side. (That is plaintiff's Exhibit Pictu

No. 2.) My engine was standing almost opposite the coal pit.

Q. You say this track (indicating). What does that mean?

A. This track right here?

Q. The first track south of the coal pit and south of the cind

it?

, A. Yessir. South of the cinder pit.

Q. What is this track here (indicating) ?

A: That is the fire track. That is water there.

Q. Is the train of cars over the cinder pit?

A. Yes, sir.

Q. What train of cars?

A. The train of cars shown in the picture.

31 Q. Is the south rail shown in the picture over the cind

pit or cn the solid ground?

That is the south rail.

Yes, sir. Shown over the cinder pit?

_ It is on the concrete wall of the cinder pit.

Then the cinder pit is over the rail?

Yes, sir. ‘

” You walked back twenty-five steps from the engine and stepp

into the cinder pit? ;

A. Yes, sir. My engine was down here (indicating) on the fir

track opposite the coal pit.

Q. How long is this cinder pit?

A. 150 feet to the best of my judgment.

_ iat EN ENTE EOE EMT BAL ARY OI [aos aman 2

eens cee: ee

ererep

COPY BOUNL

HARVEY W. C. WHITACRE.

(Mr. Doub:) 180 feet is correct.

(Witness is now shown Plaintiff's Exhibit Picture No. 1.)

Q. That is picture of what?

A. Of the cinder pit.

Q. What are those tracks south of the scaffold? Are those the

ready tracks?

A. Yes, sir.

Q. Where was your engine standing as shown by this picture?

A. This is part of the cinder pit over here and the engine was

on this track standing down here (indicating).

Q. As I understand you, you started west from the engine and

then turned north and walked into the cinder pit?

A. Yes, sir. I walked up here and saw this light and I followed

it up here (indicating), and walked about twenty-five steps and the

light turned north and I walked into the cinder pit.

Q. Did you see the cinder pit?

ra No sir. I did not see the cinder pit.

32 Q. How far apart are these up-rights?

A. About eighteen feet.

Q. What is this shown in the picture? That bar by the up-rights.

That is what is called a strut is it not?

A. Yes, sir.

(It is admitted that pictures were taken as of the dates shown on

the back of the pictures. )

(All pictures produced in the other trial are admitted here.)

(Mr. Doub:) We do not admit that your pictures were taken to

show the lights as they were.

Q. Mr. Whitacre, take your coat off. (Witness removes coat.)

Show the jury your hip. Which hip was hurt?

A. My left hip. (Jury feels his hip as witness steps. ) :

Q. Will you state to the jury whether any lights were burning

that night?

A. No, sir; there was not.

Q. What happens to your hip when you walk?

A. Well, it gives way. Apparently flies out of place.

Q. How is your back? Any external injury to your back?

A. There is no injury on the outside. Apparently my back is

sunk in.

Q. How frequently do engines pass out on the south side of the

it?

. A. That is according to how much hauling they have to do. I

have known them to go out as close as fifty minutes apart, frequently.

Q. All their trains pulled up there?

A. The trains have to pass, but they pass north over in the yard

further.

Q. State whether the company supplies drinking water for these

engines as well as cups?

A. Yes, sir. pe

33 Q. Do you know whether the Baltimore and Ohio Railroad

Company had had any trouble with the movement of its

CLOSE IN CENTER

—

22 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

trains because of their failure to supply water and cups to its em-

ployees before the accident on this division?

(Objection ; we do not think that any regulation or custom can be

proven in that way.)

(Mr. Doub:) We will show that they could not get men to come

out because of no water and cups.

(Ok; Doub:) We will strike out water and just say cups.

Objection. )

(Question is then changed to read:)

Q. Will you state to the jury whether to your knowledge the com-

pany previous to this accident on this division had difficulty in the

movement of its trains because of its failure to supply engines with

drinking cups?

(Objection; objection sustained.)

Whereupon the witness was asked the following question:

Q. State to the jury whether drinking cups were supplies used on

the engines on this division prior to the accident?

To which question the defendant objected, but the Court overruled

said objection, and permitted the question to be asked and the testi-

mony to be given in evidence, whereupon the defendant excepted,

and prays the Court to sign this its sixth bill of exception, which is

accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [seat.]

M. L. KEEDY. [ SEAL. ]

After offering the evidence set out in the foregoing bill of excep-

tions, which is hereby made a part hereof, as fully as if the same were

here incorporated, the said question was asked and the following

evidence given:

A. Yes sir.

And the witness further testified :

Q. For what were the cups used?

34 A. For drinking water.

Q. By whom were they used?

A. The crew.

Q. Who made up the crew?

A. The engineer, fireman and head brakeman use the one on the

engine. :

0. Do you know how far it is from Cumberland or its yards down

to Cumbo yard?

A. 72 miles, I think.

Q. How long does it take to make that run with this train?

A. Generally about eight hours.

Q. What time did this train get to Cumbo Yard?

A. We were relieved at eleven or eleven fifty five. I am not sure.

Q. Where?

A. At Cumbo Yard.

Moke ~_—

NS Sete OLED ESTE SES PEN TOE NTO oe muna

COPY BOUND

HARVEY W. C. WHITACRE. 23

Q. What time did the crew arrive at Cumbo Yard with the train?

A. About 10:36, we passed Hedgesville, the last telegraph office.

Q. Then you arrived at Cumbo Yard between 10:36 and 11

o'clock?

A. I don’t know just when we pulled into the yard.

Q. Who shoveled coal into the engine on this trip?

A. Fireman Dyche.

Q. What wages did you receive from the Baltimore and Ohio Rail-

road Company?

A. $2.42 for ten hours when I was breaking on the head of the

train.

Q. How much per month?

A. I averaged about $65.00 per month.

35 Q. Did you have regular employment?

A. Yes, sir.

Q. How near promotion were you?

(Objection. )

(Mr. Doub:) I do not know what his answer will be, but I would

like to know whether he was ready for promotion.

(The Court:) If there was a rule upon the subject that would be

admissible.

(Objection sustained.)

Q. Was there a practice in reference to promotion?

A. Yes, sir.

Q. What was the practice? :

A. What practice are you speaking of?

Q. How do you know that you were about to be promoted?

(Objection; objection sustained.)

Q. What was the practice in regard to promotion?

(Objection on the ground that we think there would be a rule on

the subject; objection sustained.)

Q. Do you know whether there was a rule in regard to promo-

tions?

A. Yes, sir. In the rule book.

Q. State what the practice and the rule were?

(Objection. )

Q. Will you turn to the rule book and show it to us?

A. If T can find it. I think you will find it on page 1.

(Witness examines rule book.)

Q. Is that the only rule you know of?

A. That is the only one I can find.

Q. State what the practice is?

(Objection ; objection sustained.)

36 Q. Had you heen promoted above the position of brakeman

before the accident?

-LOSE IN CENTER

—

24 THE BALTIMORE &4 OHIO RAILROAD COMPANY V8.

>o>

; ys $2.52 for ten hours.

A brakeman pay?

hen were you promoted?

. I became flagman about the first of 1911.

That is extra flagman?

A. Yes, sir.

Q. When should you nave becerne a regular flagman?

(The Court:) You were a brakeman at the time of this injury?

( Witness:) ‘Yes, sir.

Q. Then you were promoted to extra flagman?

(Objection; objection sustained. )

Whereupon the following question was asked:

Pepe

>e

Q. How were you promoted?

To which question the defendant objected, but the Court overruled

the said objection, and permitted the question to be asked and the

testimony to be given in evidence, whereupon the defendant excepted,

and pravs the Court to sign this its seventh bill of exceptions, which

is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [sEat.]

M. L. KEEDY. [SEAL. ]

After offering the evidence set out in the aforegaing bill of excep-

tions, which is hereby made a part hereof, as fully as if the same were

here incorporated, the said question was asked and the following evi-

dence give:

37 A. T was promoted as flagman. As soon as they are capable

of taking care of a train they promote us to flagman, but that

does not relieve us from breaking.

And the witness further testified :

Q. What is the difference between flagman and extra flagman?

A. Well, an extra flagman does not have a regular flag.

Q. After being promoted to flagman, what is the next promotion?

(Objection; objection sustained.)

Cross-examination :

(By Col. Pearre:)

ag say you were twenty-six years old when the accident hap-

ned?

et Yes, sir. Twenty-six years and ten months. :

Q. Mr. Whitacre, how long had you been employed by the Balti-

more and Ohio Railroad Company when the accident occurred?

A. Altogether, you mean?

Q. Yes sir?

A. Over nine years.

HARVEY W. C. WHITACRE, 25

@. How long had you been acting as brakeman in and out of

‘umberlanu?

A. Since 1909 ' was employed as brakeman.

Q. Did you know thy ° ation of the cinder pit at the time of this

ecident?

A. Yes, sir; I had seen it.

Q. How many times had you seen it?

A. I do not remember.

—Q. Ten times?

A. You asked me in Cumberland, and I told you about 20 times,

and I now say the same thing, about 20 times?

8 Q. Was it 30 times?

A. No, sir.

Q. Then you say it was not more than twenty times?

A. Yes, sir.

Q. Between what dates?

A. I have no dates.

Q. You know when it was constructed?

A. The cinder pit was in service January in 1913.

Q. You were injured when?

A. June 23, 1913. ;

Q. You say you saw it not more than twenty times?

A. Yes, sir.

Q. How many times were you there?

A. T was there the night I was injured.

is Has your attention been called to it since the night you were

ere?

A. No, sir.

Q. Were you shown these time tickets?

A. These are time cards of the Baltimore and Ohio Railroad.

(Witness examines the tickets.)

Q. What are they used for?

A. They are het | for reporting the time employees make in the

train service.

(Objection. )

(Mr. Pearre:) We expect to prove that these cards have on them

the time this man was called, to this cinder pit for service. I want to

refresh his recollection and see if he can then say when he was there.

(Objection overruled.)

(It is admitted.)

39 Q. Have you looked them over, Mr. Whitacre?

A. Yes, sir. ;

Q. Since you have looked them over have you any clearer idea

how often you were there? :

A. T have no recollection. I do not know what these time cards

are for.

Q. After looking at the time cards can you say whether you were

there? Can you say now that you were not there more than once?

A. I can not remember. That is all I say say.

26

Q. Do you know who makes out these time cards?

A. Yes, sir.

Q. Who?

A. The conductor of the crew.

Q. From whom does he get his information?

(The Court:) Objections to this.

Q. You said something about this cinder pit having tracks on

both sides of it.

A. Yes, sir.

Q. What is on the north side of it?

A. The —

Q. What is the hump used for?

A. Put coal into the coal tipple.

Q. What do they put on the tracks on the hump?

A. The hump is a raised place on the track and they run cars of

coal over them to the coal tipple.

Q. How far is it raised?

A. Three or four feet.

Q. What is north of the hump?

A. More tracks.

40 Q. What is south of the hump?

A. Cinder pit.

What is south of the cinder pit?

THE BALTIMORE & OHIO RAILROAD COMPANY VS.

. Ready track.

Is not that the track that is used for engines going under the

coal tippel to have coal put down. The first track south of the cinder

pit and comes to the south of the cinder pit?

A. Yes, sir. I believe it is.

Q.- The first track south of the cinder pit is the track on which the

engines go with their tanks to be loaded with coal from the coal

tipple? What is south of that?

A. They load the engines from the coal tipple, too.

Q. What is south of that?

A. The ready track.

Q. How many?

A. Two.

Q. What are these ready tracks used for?

A. For getting engines ready to leave the yard.

Q. Who are employed about there in connection with these en-

gines on the ready track? The train crews?

A. you mean when the train crew is called?

. Yes?

A. The hostlers have charge of them until the train crew gets

them.

Q. What are the hostlers? 3

A. They are men employed in the yard to look after the engines,

A. Three.

Q. What is the first track south of the cinder pit used for?

A

Q

HARVEY W. C. WHITACRE. 27

et the are et and look after them until they are recalled to leave

e yard.

1 Q: What duties have the hostlers with reference to placing

the engines on the ready track?

A. The hostlers employed around there in connection with these

ngines coal them and put them on the ready track and the train-

nen get them to go on the train.

Q. Who get them from the ready track?

A. The fireman and engineer.

Q. Then they are the only men employed around there?

A. Do you mean employed at that point?

Q. Yes?

A. They have tool boys employed and have men working at the

oal tipple and have men stationed there to take numbers and times

f the engines leaving there.

Q. How many men have they working around the coal tipple?

A. I do not know. I never asked.

Q. Where is the coal tipple?

A. I cannot tell how far east of the cinder pit. The coal tipple

s east of where I was injured.

Q. You have passed through there?

A. Yes, sir. I have got my engine on the ready track.

Q. You say the pit is nine feet deep?

A. Yes, sir.

Q. You said it was nine feet deep?

A. Yes, sir.

Q. How do you know that?

A. I boarded with a man that helped to build it.

Q. You know then a great deal about it?

A. Yes, sir.

Q. You said how long it was. What is the distance from the east

end of the cinder pit to the west end of the coal tipple?

42 A. I do not know.

Q. Can not you approximate it?

A. No, sir.

Q. You can not give an idea of the distance between the east end

of the cinder pit and the west end of the coal tipple?

A. No, sir.

Q. Where were you living then?

A. 206 West Third St., South Cumberland.

Q. How did you get down there?

A. I came out Springdale St., and down the railroad to the caller’s

office and down the track from the caller’s office to the engine.

Q. Did you have any light with you?

A. My lantern.

Q. Was it lighted?

A. Yes, sir.

Q. What kind was it?

A. A regular Baltimore and Ohio Railroad lantern.

Q. Did it give you sufficient light?

28 THE BALTIMORE & OHIO RAILROAD COMPANY V8. ;

<i It gave me light enough to prevent me from falling over any-

g.

Q. You came down Springdale St. to the crossing?

A. Yes, sir.

Q. You walked east on the railroad?

A. Yes, sir.

Q. How far is it between Springdale St. and Virginia Ave.?

A. One block.

Q. Did you walk on the track or between the tracks?

A. Beside of the track. There was a road there.

43 Q. What do you mean by a road?

A. A track along the side.

Q. Do you mean a road?

A. It is used for both. It is six or eight feet wide.

Q. Did you walk between the tracks?

A. No, sir; to the left of them.

Q. Where did you cross the tracks?

A. At Virginia Ave. I walked down the tracks from Virginia

Ave. to the caller’s office.

Q. When you got to Virginia Ave., where did you go?

A. I crossed a portion of the tracks at Virginia Ave., but walked

down there to the caller’s office.

Q. Did you not go down Virginia Ave., and go to the gate?

A. No, sir.

Q. Did you not testify that you went down Virginia Ave., and

went into the gate?

A. I told them just what I now tell you. I went down Third St.

to Springdale St., and Virginia Ave., to the caller’s office.

tan When did you leave the main tracks of the Baltimore and

io?

A. At Virginia Ave.

Q. Then where did you walk?

A. On the yard tracks.

Q: How did you get into the yard? Did you pass through the

gate?

A. There was no gate there.

Q. Is there not a gate there?

A. No, sir. None west of Virginia Ave. crossing.

Q. I am talking about east of Virginia Ave. crossing. You were

going — and then you went east and then southeast of Virginia

ve.?

44 A. Yes, sir.

Q. Did you walk down through the yard to the caller’s

office?

A. Yes, sir.

Q. What did you pass going down through the yard to the caller's

office from the railroad after you left the main tracks of the Baltimore

and Ohio?

A. I do not remember what I passed that night.

Q. You go by there often, don’t you?

A. I have not been there since I was injured.

HARVEY W. C. WHITACRE. 99

Q. You went by ther. before?

A. Yes, sir.

Q. You knew what things were in the way?

A. There were several things in the way, I had to go slow down

there to keep from running into things. ,

Q. Did you run into anything?

A. Not to injure me.

Q. Did you run into anything?

A. I had my lantern.

Q. Did your lantern give you sufficient light?

A. Yes, sir. It kept me from falling over anything large. Any

large obstruction.

Q. Did you pass a dry tank?

A. Yes, sir.

Q. Did you see it?

A. No, sir. I did not see it, but I knew it was there.

Q. You knew it was there just as you had seen the cinder pit?

A. Yes, sir. I knew it much better than the cinder pit, use

it was in operation much longer.

Q. Every time you went down and saw the crane and that iron

structure you saw the tank?

45 A. If 1 went that way.

Q. When you did not go that way, which way did you go?

A. It was only a short time, within the last six months that I went

down through the yard a little to the south of the main tracks to the

yard office.

Q. How far from this direction? How far east or west of this

object which you are now describing?

A. It would be as much as ten or twelve tracks at least in the yard.

Q. Where would you strike these yard tracks?

A. At the Virginia Ave. crossing.

Q. In going down that way what obstructions do you pass in the

way of switches, tracks and other things?

A. Yes, sir. Pass several switches.

Q. Have you walked over several tracks?

A. Yes, sir.

Q. A number of obstacles there?

A. Yes, sir.

Q. Did you have any trouble that night going down?

A. No, sir.

Q. Do you know 5 other way of going down there? The way

just opposite the Y. M. C. A. Building?

A. Ves, sir. I know that way.

Q. Is that not a better way?

A. No, sir.

Q. You do not walk over any tracks between the Virginia Ave.

crossing and the gate do you?

A. I do not see any tracks on the street. (Witness laughs.)

Q. Answer my question. Do not become amused.

A. No, sir; I do not see any railroad tracks on the street.

46 Q. How many were inside the gate that you walked over?

A. One right inside the gate.

$0 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

Q. How many tracks do you walk over when you go down tl

other way? .

A. A number of them.

Q. So I understand that you went down that way instead of goi1

down Virginia Ave., where there was no tracks. You went dov

that way where there were many tracks?

A. Yes, sir.

Q. And you had a lantern to see and had to walk carefully?

A. Yes, sir.

Q. And if you would not have walked carefuily you might ha

been injured?

es, sir.

ou walked carefully until you got down to the caller’s offic

nd

, Sir.

ow did you know when you got down to the round house?

knew it when I got to it.

id you say that it was foggy?

es, sir.

ow did you see the round house?

knew the location and I knew where it was.

ou knew the location of the cinder pit?

0, sir.

Do you mean to tell the jury that you did not know the lo

that cinder pit when you went by there twenty times?

es, sir; I did not.

ou knew the location of the cinder pit in the day time, ¢

you not?

47 A. Not very good, I did not.

Q. Did you know it?

A. I knew there was a cinder pit there some place.

Q. Did you know where it was with reference to the ready tre

the day time?

did not until I was injured.

Zt ttt

Lee)

tion 0:

OPrBOpopeoPpererep

a)

nd

(The Court:) I think he has answered that.

Q. How many times have you gone out as head brakeman in |

night since that cinder pit has been in operation?

‘A. I do not remember. I do not remember how many time

have gone out of there in the night.

Q. How many times have you gone out there in the day. time’

A. I do not know exactly.

Q. Can you approximate it, from the ready tracks?

A. If I have been past there twenty times I have broke twel

turns out of there. But I would not take an oath that I was 7

that place twenty times.

Q. Tell the jury how many times you took an engine off of t

ready track after that cinder pit was put in operation?

HARVEY W. C. WHITAURE. $1

A. I can not tell you without my book. I have been so unlucky

to haye lost the book.

Q. Why do you say so unlucky?

A. Because I have lost it.

Q. Have you read your testimony over since the last time you

testified?

A. No, sir.

Q. You say you have not? I mean the stenographer’s notes?

(Witness hesitates. )

48 Q. Why do you hesitate?

A. Why is it necessary to know that?

\. Answer the question?

A. I read the printed stenographer’s report.

Q. ta did you say you had not read it over when I asked you

at first

A. I did not understand what you meant.

Q. You heard me ask the question as to whether or not you read

over the stenographer’s notes. Did you not know what I meant?

A. I did not understand it that way, Mr. Pearre.

Q. Now, Mr. Whitacre, you went down as far as the caller’s office.

The caller’s office is near the round house?

A. Yes, sir.

Q. saad did you happen to see the round house when you got

there

A. I knew where it was.

Q. You knew where it was because you had been there before, is

that right?

A. Yes, sir.

Q. Then you went into the door of the caller’s office?

A. Yes, sir.

Q. Which door?

A. The door from the north side.

Q. Which door did you go out of?

A. As near as I can remember I went out of the south door.

Q. That is almost directly opposité the north door?

A. Yes, sir.

Q. In the caller’s office you go up several steps and there is a

sereen and a man behind that?

49 A. Yes, sir.

Q. Who stands in there?

A. At the second door is the caller’s department. ,

Q. Then you went up to the second door and went into the caller’s

office? (door or floor.)

A. Yes, sir.

Q. What did you do there?

. I reported.

Ready for work?

Yes, sir.

Then where did you go?

To the engine.

$2 THE BALTIMORE & OHIO RAILROAD COMPANY V8.

Q. Did you have your lantern with you?

A. Yes, sir.

Q. Why did you not say in your direct examination that you had

your lantern?

A. I think that was brought in.

Q. Did you have your lantern lighted when you went out of the

south door of the caller’s office?

A. Yes, sir.

Q. Then where did you go?

A. Down the track to the engine.

Q. What was the condition of the night?

A. It was dark and foggy and very damp.

Q. Will you take the photograph, Mr. Whitacre, and get your

bearings and give us an idea of what it is and state if that is a fair

representation of the various structures around there?

(Witness is shown photograph.)

A. Those lights were not there.

Q. I am not going to ask you anything about the lights. Which

lights are you speaking about?

50 A. You asked me about the representation.

Q. Is it a fair representation of the location?

A. Yes, sir, leaving the lights off.

Q. Look at this photograph and see if that is a fair representation

of the location leaving out the question of lights?

(Witness is shown photograph.)

A. Yes, sir; I think so. Of course, I do not mean to say that

these cars and engines were around there at that time.

(Witness is now shown photograph marked “Defendant No. 7,”

and says that it is a fair representation of the relative location of the

permanent structures and the equipment about there at that time,

outside of the lights.)

Q. Mr. Whitacre, look at photograph marked “Defendant No. 7,”

and state if you know what the iron structure which appears on the

right side of that photograph is?

"A. That is the structure where the crane runs on over the cinder

pit.

Q. Can you see any portion of the cinder pit there?

A. Yes, sir.

Q. You see, do you not, the first track of the cinder pit on the

north side of that iron structure as shown in that photograph? |

A. Yes, sir.

Q. How deep is that ash pit there?

(Objection. )

Mr. Pearre: He went over this. )

(Question changed.)

Q. What is the depth of the cinder pit on the right hand side of

vr aia first cinder pit looking from the south towards the

north?

HARVEY W. C. WHITACRE, 33

A. That is about nine feet.

Q. I mean the first track west of the structure. Is that not four

feet and does it not incline down like that to nine feet?.

51 A. That is not the way I was instructed and I never saw it

empty. All that I know is what the fellow told me.

_Q. Did you see it empty before it was completed?

A. No, sir.

Q. Were you not by there after it had proceeded to that part of

construction where it was walled up inside?

A. No, sir. Not that I remember.

Q. Mr. Whitacre, show the jury on this photograph marked

‘Defendant No. 7” just how you came out of the door of the caller’s

office and then what course you came down to where your engine

was, You came out of the south door, I believe, of the caller’s office

and then where did you go?

A. bo ht down this track here (indicating). The south leg of

the ol ‘“ Bas ¢

Q. Do you mean the first track as shown on the photograph cross-

ing around the hump?

A. No, sir.

Q. What do you mean?

A. You can not see the track very good there. It comes up here

and goes back there.

Q. Can not you show it with reference to the location of those

houses where the track runs?

A. I went down the south ‘leg of the old “Y” and came down this

track.

-Q Now which way did the south leg of the old “Y” run from

the caller’s office?

A. Say this is the south leg of the old “Y” and this the caller’s

office; the south leg of the old “Y” runs right down here (indicat-

-)

my Show the jury just where the south leg of the old “Y” ran

with reference to these obstructions. Which way did the south leg

of the old “Y” run with reference to the south door of the caller’s

office?

A. It ran southeast of the caller’s office.

52 Q. Is it there now?

A. I do not know.

Q. When were you there?

A. Not since I was injured.

Q. Can you tell from this picture the general direction you took

from the south door of the caller’s office down to the ready track?

A. I told you I went down the south leg of the old “Y” to this

track which runs out here to a switch. I made sure of myself when

I got there, as it was very foggy, and then I went down here to the

teady track.

Q. Which track did you go down?

A. This track here.

Q. You walked down then on the track south on the west end as

shown on the photograph marked “Defendant No. 7”?

38—374

34 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

A. Yes, sir.

Q. Now where was your engine standing? —

A. My engine was standing on this track (indicating).

Q. Now which track was that with reference to the cinder pit?

A. It is the second one south of the coal tipple.

Q. Then on which side of your engine did you go down?

A. Down the track to the rear end of the tank.

Q. Down this track, the farthest one?

A. Yes, sir. I came down that track and walked over on the |

hand side and climbed upon the engine.

Q. Did you have your lantern with you?

A. Yes, sir, ;

Q. Was it burning all right?

A. Yes, sir. : ,

Q. Did. you have any trouble getting down the track from |

caller’s office?

53 A. No, sir. I do not remember that I had any trouble.

Q. Why did you take that track?

A. Because I Avene that track led down to the ready track.

Q. You knew that track led away from the cinder pit, did }

not?

A. A man is not apt to be thinking about all at once. I kn

the ready track was not on the cinder pit.

Q. Was that not the reason you took that track?

A. No, sir. I knew that track led to the engine.

Q. Did you not say awhile ago thaf you took that track beca

you knew it was safe’?

A. Yes, sir; and I say it again. I knew it was safe.

Q. There are many tracks there?

A. Yes, sir.

Q How did you know that track?

A. Because I knew from the switches what tracks I go to.

Q. You knew how the tracks ran?

«A. Yes, sir. sn

Q. You knew how the tracks lay with reference to the cinder

and this track on which the train moved?

A. Do you mean that track south? Re

Q. Yes, sir. You knew where that ran with reference to

cinder pit, did you not?

A. Yes, sir. I knew that was the ready track. _ rae

Q. You knew that that track was below the cinder pit, did }

not?

A. I knew that track was south of the cinder pit.

Q. Then you knew where’ the cinder pit was? :

A. I said that I had passed the cinder pit, but had not examu

it to know just where it was. ee

Q. Did you have to examine it to know where it was with re!

ence to the ready track?

54 A. No, sir. ;

Q. You said your engine was about opposite to the ¢

tipple?

HARVEY W. C. WHITACRE. 85

- A. Yes, sir.

Q. Just south of the coal tipple?

A. Yes, sir. Almost opposite just south of it. The tender was

ight under that coal chute almost south of the coal tipple on the

~yeady track.

Q. Now which track is that?

A.

Q.

are

A.

Here is the one that comes under the coal tipple (indicating).

— track comes under the coal tipple on which the tanks

run

That track (indicating).

Q. Your engine was not on that track, was it?

A. Yes, sir. On the first track south of the coal tipple.

Q. That would not put it under the coal tipple, would it?

A. Well, it was under the coal chute.

Q. Then it was not under the coal tipple?

A. It was almost opposite the coal tipple so as to coal the tank.

Q. Now, as a matter of fact, was it not some fifteen or twonty

feet west of the coal tipple? ;

A. No, sir, it was not.

_ @ Now you put your dinner bucket on the engine?

A. Yes, sir.

Q. Who was there?

A. Fireman Dyche.

Q. Anybody else?

A. I did not see anybody else.

Q. Did you look around for anybody else?

55 Bak looked around, but I did not see anybody.

Q. Did you look on the engineer’s side for the engineer?

A. Yes, sir. I looked for him. It is only nine feet across there,

and nothing to obstruct the view.

Q. Did you ask the fireman where the engineer was?

A. I do not remember.

Q. You say there was nothing to obstruct your view from one

side of the engine to the other. Have you not testified that it was

foggy?

oD The engineer and fireman have torches.

Q. Did the engineer have a torch?

A. The engineer was not there. There is a place on the engine,

a shelf, where the engineer places his torch.

Q. Where was Dyche? :

A. He was on the other side of the engine.

Q. How far was the torch away?

A. Four feet. :

—Q. The light of the torch would project four feet?

A. Yes, sir. : ;

Q. Did you look around the engine to see if anybody else was

there?

A. I did not. :

Q. Did you get off of the engine?

A. No, sir. ~ i

Q. Did you have your lantern with you?

36 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

A. Yes, sir. |

Q. On your way down from the caller’s office did you not have

to pass the west end of the cinder pit?

A. Yes, sir.

Q. Did you go into it then?

56 A. No, sir.

ee Q. Was there anything to keep you from going into it

en

A. No, sir. If I would have kept on going down, I might have

gone into it.

Q. You went to the right of it?

A. Yes, sir. I certainly did.

Q. What is the distance between the east end of the cinder pit

and the west end of the coal tipple?

A. I do not know.

Q. Can you give an idea?

A. No, sir.

Q, Is it the length of an engine?

A. I do not know.

Q. Can you give an idea?

A. No, sir.

Q. Is it the length of an engine?

A. I do not know.

Q. You were here and walked back west (indicating) ?

A. Yes, sir.

Q. How many feet?

A. About twenty-five steps.

Q. How many feet?

A. About seventy-five feet.

Q. Were you in a hurry?

A. Yes, sir. I was in a hurry looking for the tool boy simply

because the fireman told me——

(Col. Pearre:) We object to have the witness injecting that into

every answer he gives.

Q. Were you in a hurry?

A. Yes, sir.

57 Q. To overtake the boy?

A. Yes, sir.

Q. Were you running or walking?

A. I was walking as fast as I could in the fog.

Q. You saw a light, you say?

A. Yes, sir.

Q. How far ahead was it? ;

A. Not very far, because I could not see a light very far in the

fog.

6. Could you overtake the light?

A. No, sir.

_ Did you see anybody carrying the light?

x No, Lt I could not tell what it was, but it looked as though

it might have been a torch.

HARVEY W. C. WHITACRE, 37

Q. With that torch could you not have seen these structures?

A. No, sir.

Q. How high are they?

A. I do not know.

A. About?

A. Twenty or thirty feet.

Q. They are pretty substantial, are they not?

A. Yes, sir.

Q. You could not see the structures that night with the lantern

your hand.

i No, sir, I could not see them.

Q. And with a torch you could not see them?

A. No, sir.

Q. So with your lantern and the light of the torch you did not

e that structure?

A. No, sir, I did not.

3 Q. You knew the structure covered the cinder pit, did

you not?

A. I did not know.

Q. If you had seen it, you knew that the cinder pit was there?

A. I knew they use the traveling crane and like of that.

Q. Mr. Whitacre, do you know what is below the traveling crane

ispended below it?

A. There is a little watch box there for the operator, the engineer

‘the traveling crane.

Q. The engineer of the traveling crane is in that box?

A. Yes, sir. That is where he stays.

Q. Do you know the four lights?

. They were not there that night.

Were they not burning that night?

. No, sir. They only burn when the crane is in operation.

Do you know that they were there that night?

No, sir.

. Do you know they were on a different circuit from the arc

hts?

<4 Yes, sir. But there were no lights there that night.

OPoOrPo>

Q. You would have to walk west going back along the track?

A. Yes, sir.

Q. How far did you walk back?

9 A. I walked up here a short distance and saw this light

ahead of me, and it turned north and disappeared behind

mmething.

Q. Did you follow it behind something?

A. Yes, sir. I saw it was an engine. I held my lantern up and

aw it was an engine.

38 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

Q. You were holding your light down and when you saw the

engine you threw your light up and saw that it was an engine?

es, sir.

Q. Then you saw the cinder pit?

A. No, sir.

# gg know that the light ashes only stay on top of the

i

. No, sir. It all looks alike. x

Q. Do you not know that the dark ashes sink and the light ashes

stay on top?

A. I do not.

Q. You say you put your right foot on the track?

A. Yes, sir.

Q. How do you know that?

A. I first walked west twenty-five steps and then turned to the

right and walked a couple of steps to the east. I then walked right

along the cylinder of the engine, right behind of the pilot, and

walked a couple of steps east of the pilot.

Q. Where did you fall in?

A. Right in front of the pilot.

Q. Were there any lights around there?

A. No, sir.

Q. Anybody else?

A. Fireman Dyche.

Q. Anybody else?

60 1“ eo Well, there was a fellow went by while I was vomiting

Q. Why did you not call that man?

A. Weil, I was sick and was vomiting, and I did not think of

assistance.

Q. Well, the reason you did not call to this man was because

you were vomiting, is that right? \

A. No, sir, I did not think of calling him.

Q. When you fell into this pit you say you became unconscious?

A. Yes, sir.

Q. Where was your lantern?

A. On my left arm.

Q. Did your lantern break?

A. No, sir.

Q. Did it go out?

Yes, sir.

Where was your time book?

It fell out of my pocket.

Were you head down or feet down when. you fell?

I do —— know what position I was in when T was unconscious,

Well, you just stepped into the pit?

es, sir.

Did you look for your time book?

No, sir.

look for your time book?

OPOPOoPOror

A. No, sir. ;

Q. Did you not destroy your time book?

HARVEY W. C. WHITACRE. 89

A. No, sir. I did not. I also lost my keys and a gold

-watch in that cinder pit that night, if you think I destroyed

my time book.

Q. You left home at 1:30?

A. Yes, sir.

Q. Called for what time?

A. Two o’clock.

a. a time did your engine leave the ready track for the yard

ow

A. I do not know.

Q. What time was it scheduled to leave?

A. Two o'clock.

Q. What time was it when you first came to the engine before

u got hurt?

A. A couple of minutes of two o’clock. I put on my clothes and

1ked at my watch and it was a minute or two after two, and I

ked Fireman Dyche whether he was ready.

Q. Do you know whether or not your engine left on time?

A. It did not. '

Q. How late was it?

A. I do not know.

Q. How do you know it was late, then?

A. Because it was after two o’clock when I looked at my watch.

Q. Do you know what time the engine left after you got out of

e cinder pit?

A. No, sir.

Q. How long after you became conscious was it before you got

ck to the engine?

A. I do not know, but it was a right smart little bit. .

Q. Can you give us any idea?

A. I do not know exactly. It might have been eight or

» ten minutes. I have an idea I was eight or ten minutes get-

ting the twenty-five steps?

Did you call anybody?

No, sir.

You were going back by yourself?

Yes, sir. I was hunting my way when that man passed me.

Did you have any light when you got out of the pit?

No, sir.

How did you get back?

I hunted my way back in the dark.

Did you have any trouble?

. Yes, sir.

Q. Did you fall into the pit?

A. No, sir.

Q. Tell the jury how you got out of that pit and back to the

agine on a night so dark as that without any light?

A. I said when I got out of the cinder pit I was very sick and it

ade me sick, and I started to vomit, and some man passed me

ith a torch. I am sorry that I did not ask him who he was. He

eld his torch-up and went on.

Q. Did he stop?

POPOPOPo ro

THE BALTIMORE & OHIO RAILROAD COMPANY VS.

Yes, sir; I guess. He looked like an Italian.

Q. How do you know he looked like an Italian?

A. Because he held his torch up at my face and looked at me.

Q. He held his torch at your face and not at his and yet you say

he was an Italian?

A. Yes, sir. And I say our faces were only about eighteen inches

or two feet apart.

63 Q. Do you know, Mr. Whitacre, which end of the cinder

it you fell into?

A. Not into the end at all.

Q. Was it in the midle?

A. No, sir; it was the outside.

Q. Was it near the middle or the end?

A. I do not know.

Q. Do you know Jimmy Spearman?

A. Yes, sir. I have seen him.

Q. How long have you known him?

. Not long, but I did see him in December.

. Where did you see him?

At his house.

A. No, sir. , ,

A. Did you not tell Mr. Spearman that you walked around the

east end of the cinder pit until you came to the north side of it, that

you went between the iron structure on the north side and an engine

and tank that were standing there on the north track of the cinder

pit and when you came back you thought that you had reached the

end of the cinder pit and you went directly behind the tank of the

engine.and without thinking stepped into the cinder pit?

A. No, sir. ;

Q. And did not Mr. Spearman tell you that he could not see how

you fell into the cinder pit because he said there was an are light -

burning over where you fell in that night?

| A, There was only about five minutes’ conversation between me

and Mr. Spearman. He was getting ready to go to work

64 and I asked him whether he was the man that fell into the

cinder pit and he said “No,” that he jumped into the cinder

it.

Q. Chula not that have been said in five minutes?

A. Not, sir. Not to a stranger.

Q. Did he not tell you that he could not see how you could have

fallen in on account of the are light?

A. No, sir. Nothing was said about that.

Q. Nothing at his home or anywhere else?

A. No, sir. That is the only time I spoke to Mr. Spearman, ex-

cept at the Allegany Court House.

HARVEY W. C. WHITACRE. 41

Was there not a tin cup on the engine that you went to?

. I do not know.

Was there not a tin cup on the engine that you went out on?

. I do not know.

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A. Yes, sir. :

Q. Do you not know that men usually drink water out of the

nside top of the water cooler like that?

(Objected to.)

(Col. Pearre:) We proffer to show that this was the kind of a

ooler that was on the engine that night and we proffer to prove it ~

yy that witness that this was the identical cooler used on that engine.

(Proffer was afterwards changed as to the identical cooler. )

(Admitted with proffer.)

Q. Do you not know that it is the practice and custom of the

nen to use the inside top of the water cooler to drink water out of?

A. No, sir. It is not a custom.

5 Q. Is that the kind of a cooler they have?

A. Yes, sir. That is the kind.

Q. Is that the kind that was on that engine that night?

A. Yes, sir.

(By Witness:)

Q. If you found the cooler why could you not find the cup with

he B. & O. initials on it?

A. You might have taken it into the pit. Why did you not tell

where it is?

A. I thought you had it.

(Col. Pierre:) I do not mean to say that this was the identical

soler that was on the engine that night.

(Witness:) Yes, sir. I thought you said that.

(Col. Pearre corrects his statement that he would prove that this

was the identical cooler used on the engine that night.)

.° Did you ever see a man drink out of the top of a cooler like

is?

A. Yes, I have. I have seen them drink out of there when there

was a tin cup on the engine when some one else was using it.

Q. Then they did not need a tin cup?

A. Some one else was using it.

Q. One man was and one man was not, is that right?

A. Yes, sir.

Q. After you were hurt you got on the pilot of the engine and

went down to Evitts Creek Yard?

A. Yes, sir.

Q. What did you do on : way down performing your duty?

A. Yes, sir. I performed my duty.

42 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

Q. What did you do?

A. I threw switches.

66 Q. You said that you were sick and climbed up on the

engine?

A. Yes, sir. I climbed upon the pilot and said there was an acci-

dent, an] the engineer said, “Let’s go,” and tooted his whistle.

Q. Did you talk to Albright?

A. Yes, sir.

Q. You got up in the cab and told Albright about your injury

and the accident on your way down?

A. Before we started; yes, sir.

Q. Then you got out of the engine on the pilot?

A. Yes, sir.

Q. What did you first do?

A. Waived my lantern.

Q. Then what?

A. I did not have anything to do until I got to Evitts Creek.

Q. What did you do then?

A. Got off there and threw a switch.

Q. Then what?

A. Threw it back and climbed up on the step of the tank.

Q. Then what did you do?

A. Coupled up the train.

Q. Anything else?

A. Coupled the air hose and gave the signal.

Q. How do you couple air hose?

A. Put them together that way (indicating).

Q. Do you go between the cars?

A. Yes, sir.

Q. How far are they from the ground?

A. About two feet.

67 Q. Then you had to stoop down to get it, did you not?

A. Yes, sir. You can not stand up and get them.

Q. Then what did you do?

A. Brakeman Bohrer had the brakes off and the air was turned

an

Q.

d we were ready to go after we tried the air brakes.

What did you do?

A. Climbed up on the engine.

Q. Then what did you do to perform your next duty?

A. I had no moving duty to do until we arrived at Magnolia, and

I found that my back was stiff. _ . |

Q. You came to Green Spring first, did you not?

A. Yes, sir.

Q. What did you do there? Did you take water?

A. No, sir. ;

Q. What time did you leave Levitts Creek?

A. I do not know.

Q. You had your watch?

A. Yes, sir. :

Q. Did you take water at Evitts Creek?

A. No, sir.

on

HARVEY w. C. WHITACRE,

' Q. Then you came to Magnolia?

A. Yes, sir.

- Q. Did you take water there?

A. Yes, sir. :

Q. What did you do? You had to go back between the cars and

uncouple them and stoop down and raise the hose so as to get the

coupling pin out, did you not?

A. Yes, sir.

Q. Then what did you do? Couple it up again?

68 A. Yes, sir.

Q. Stooped down?

A. Yes, sir. I am not sure whether I coupled it up again or not.

Q. What was next duty you performed after that?

A. We stopped at Hansrote and I walked up with the conductor

to the telegraph office to see what was the trouble and what they

were holding us for and there is where the conductor made out the —

accident report.

Q. Did you request him to make out an injury report?

A. It was not any more my request than it was his. It is re-

quired by the company when a man gets injured.

Q. Did you call his attention to it?

A. Yes, sir.

Q. You went into the telegraph office?

A. Yes, sir.

Q. Were you standing near him?

A. IT was not any closer to him’than I am to you now.

Q. Did you tell him what to put in the report?

A. The questions are on the report.

Q. Did he ask you the questions?

A. Yes, sir. He asked me how I come to get hurt and where.

Q. Did he ask you these questions that are contained in this

report?

- (Witness is shown report.)

(The Court:) Without seeing the report, I do not see how he

can answer it.

Q. Did you see the report. Did you see him making it out?

A. Yes, sir; I saw him making it out.

Q. Did you read it?

69 A. No, sir.

Q. Did he read it to you?

A. As I remember, I think he did.

Q. Then you knew what was in it?

A. Yes, sir.

Q. That takes you down to Hansrote. You went east of Hans-

rote?

A. Yes, sir.

Q. Did you ask to be relieved after the report was made out?

A. No, sir. I do not know that I made it known to the train dis-

patcher.

Q. Could you have been relieved?

&

THE BALTIMORE 4 OHIO RAILROAD COMPANY VS.

Sometimes they will relieve you and sometimes not.

en you are sick?

ave heard fellows ask for relief and not get it.

you do anything else after you left Hansrote?

sir. Only came back on the engine.

Vhere was the next point you stopped?

ir Johns Run.

What did you do there?

simply uncoupled the engine.

ou uncoupled the hose just the same as before?

es, sir. I uncoupled and Thom Ambrose coupled them up.

d you do that- more than once?

0, sir.

en you went on to what point?

erry Run.

Q. What did you do there?

70 A. Took water there.

3 Q. Then you uncoupled and coupled up the same as before

did you not?

A. I am not sure about that. May be the conductor did it.

Q. What was your next stop?

A. Cumbo Yard.

Q. What were your duties there?

A. To call the yard master .on the telephone.

Q. What did you do to do that? Get off your engine?

A. Yes, sir; and go across the yard a little piece to a post wher

a telephone is on the post.

Q. Then what did you do? Come back to your engine?

A. No, sir. I stayed there to see if the track was ready. While |

was waiting there the yard master called up and said it was all righ

to pull in. Conductor Ambrose coupled up the engine and I go

in and rode down to the yard.

Q. The engine was coming towards you?

A. Yes, sir.

Q. It was moving?

A. Yes, sir; very slowly. é

Q. And you were able to get on while it was moving?

A. Yes, sir.

Q. Then what else did you do?

A. Rode the engine down to the east end of the track and threw

the switches and then left the engine go back.

Q. What kind of a switch is it?

A. It is a ball switch. ‘

Q. You stooped down and threw it over, do you not?

A. Yes, sir. '

Q. What does the ball weigh?

71 A. About fifteen pounds.

Q. Then what did you do?

A. That was the last work I done.

Q. You said your health was good?

A. Yes, sir.

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HARVEY W. C. WHITAURE.

Q. Did you not have tuberculosis?

A. No, sir.

Q. Did you not contract that tuberculosis from your wife?

A. No, sir; not that I know of.

Whereupon the witness was asked the following question:

Q. She did die of tuberculosis, did she not?

(Objection. )

(Col. Pearre:) We proffer to prove by other witnesses that when

this man was examined, almost immediately after this accident,

they found evidences of old tubercular sores in his lungs,

(The Court:) What is the object of showing that here?

(Col, Pearre:) We want to show that the witness was not in good

*s :

(The Court:) We do not think that is admissible.

To which question the plaintiff objected, and the Court sustained

said objection and refused to permit the question to be asked and

the testimony to be given in evidence, whereupon the defendant

excepted and prays the Court to sign this its eighth bill of exception,

which is accordingly done this lst day of June, 1914.

ROBERT R. HENDERSON. [sgat.]

M. L. KEEDY. | SEAL. |

After offering the evidence set out in the foregoing bill of ex-

ceptions, which is made a part hereof, as fully as if the same were

here incorporated, the said question was not asked or an-

72 swered.

And the witness further testified:

Q. When did you re-light your lantern after it went out in the

cinder pit?

A. After I got back on to the engine. I tried to light it before I

t there, but all the matches I had in my pocket were ruined by

the water.

Q. What rail was it that you fell on when you stepped into the

pit?

A. It was the north side rail of the south fire track.

Q. You put your right foot on that rail and then stepped with

your left foot and fell in, is that right?

A. Yes, sir.

Q. You said you jumped back?

A. Yes, sir.

Q. How deep did you go into the water there?

A. I was hanging in the water up to my arms.

ae Have you not said that the water was only about four feet

A. No, sir; I did not say that.

Q. Were you advised by Mr. Owens or Dr. Hawkins to submit to

further treatment for your injury?

(Objection ; objection overruled.)

46 THE BALTIMORE & OHIO RAILROAD COMPANY V8.

A. I submitted to everything they wanted me to until Decem!

17, when Dr. Hawkins and Dr. Owens wanted to put me in a plas

of paris case for three months, when I objected.

§ Did they tell you what injuries?

A. They said for the spine and hip.

Q. I believe you said that the order book was given to you

Tommy Reese?

A. Yes, sir.

Q. Were you not told to prepare yourself on that book of ru

so ge? ge could pass an examination?

73 e are all supposed to do that,

Q. Were you not told that at that time?

A. No, sir.

Q. When was the book given you?

A. About Jan. 1, 1913.

Q. Are you sure of that?

A. I do not know exactly.

Q. Was it within a week of Jan. 1, 1913?

A. Yes, sir.

Q. It was not in March?

A. No, sir; I do not think so.

Q. Were you not told when it was given to you you should p

pare yourself for an examination on it?

A. I remember that he said you fellows will have to preps

yourselves for promotion.

Q. Did you not know that that book would not go into eff

until November, so as to give you men time to read up on the bo

and give you time to prepare for the examination?

A. I said that I was told that that book went into effect on Jan.

1913.

Q. Did you not know that there was an order to that effect?

A. No, sir.

- Redirect examination:

(By Mr. Doub:)

Q. You say you knew of the depth of the cinder pit from t

man with whom you boarded?

A. Yes, sir. fo

Q. Did you learn that before the accident or after?

A. Before the accident.

Q. How long before?

74 A. He was the man who helped build the cinder pit.

Q. Did you nctice this water tank, this cooler? Does

have the B. & O. initials on it?

A. Yes, sir; I noticed that.

Q. Did you notice that «picket?

A. Yes, sir.

Q. What is that for?

A. A tin cup.

Q. Does the tin cup have any initials on it?

HARVEY W. C. WHITACRE.

A. Yes, sir.

Q. What?

A. B. & O., the same as that cooler.

Q. You say Dr. Hawkins and Dr. Owens wanted to put you in

a plaster of paris cast?

A. Yes, sir.

Q. Did they know that you had a case coming up in a month?

A. Yes, sir.

Q. They are physicians of the B. & O. R. R. Co.?

A. Yes, sir.

Q. Do they treat the men as first aid to the injured or do they

continue to treat them?

_ A, They continue to treat them.

Q. When they first came to see you in October, were they in the

3g of the Baltimore and Ohio Railroad?

A. Yes, sir.

Whereupon the witness was asked the following question:

Q. Will you look at this book of rules No. 10367, marked “Rules

of the Baltimore and Ohio Railroad Co., for Government of the

Operating Department,” and on the fifth page have the signature of

8. A. Potter. Will you look at these rules and say what they are?

(Objection ; objection overruled. )

75 To which teresa the defendant objected, but the Court

overruled said objection, and permitted the said question to

be asked and the testimony to be given in evidence, whereupon the

defendant excepted, and prays the Court to sign this its ninth bill

of exception, which is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [seat.]

M. L. KEEDY. [ SEAL. |

After offering the evidence set out in the aforegoing bill of ex-

ceptions, which is hereby made a part hereof as fully as if the same

were here incorporated, the said question was answered and the

following evidence given:

And the witness further testified :

Q. What are they?

A. Rules of Government.

Q. Are these the rules that were in force prior to the time that

the rules dated Jan. 1, 1913, went into effect?

A. Yes, sir. They are the rules prior to Jan. 1, 1913, and these

are the new rules that superseded them.

48 THE BALTIMORE & OHIO RAILROAD COMPANY V8.

W. H. Crark, a witness of lawful age, produced in behalf of

defendant, being duly sworn, testified as follows:

Direct examination:

(By Col. Pearre:)

(Witness is given pictures marked “Defendant No. 7 and

8—Feb. 27, 1914” and Defendant No. 7 and ©

Col. Pearre says the dates of the others are Dec. 13 and Dec.

1913. Also Feb. 5, 1914. Those with the snow in them were te

Feb. 5, 1914. The pictures are offered in evidence.

(Mr. Doub:) We object to the pictures going in as evidenc

this time. The identification of the pictures we now lk

76-78 go in.

(By Col. Pearre:)

Q. Did you notice the arrangement for lighting the pit when

took the photograph, Mr. Clark?

A. Yes, sir.

Q. Show to the jury where the lights were?

(Objection ; question withdrawn. )

Substituted as per agreement of Attorneys herewith.

“Drs. Thomas W. Koon, G. L. Broadrup, James T. Johnson

J. H. Spicer, called on behalf of the plaintiff, testified that upon

amination of Harvey W. C. Whitacre, the plaintiff, after the a

dent testified to, they found that he was suffering from a fract

of the hip and displacement of the head of the femur, on acco

of the spreading of the ascetabulum or socket, caused by the f

ture, which caused it to widen when his weight was put upon

and which was very painful, and that as a result ankylosis of

ine had developed, and that these injuries were permanent, :

that he would not be able to resume his usual occupation, and t

there was probability that the disability would increase as he wo

continue to put his weight upon the leg, and that he also suff

from congestion of a portion of the right lung.”

79 Whereupon the plaintiff made the following offer, viz:

(Mr. Doub:) We want to offer in evidence Rule 808 on p;

154 of book of Rules dated Jan. 1, 1918.

80 (Objection on ground that no foundation has been offe

to show that those rules were in force at this time and

matter of fact they were not.)

(Mr. Doub:) We offer them the first page stating when the rv

were to take effect.

Mr. Keedy:) That is trying to prove the rules by the rv

themselves.

(The Court:) The plaintiff said the were in force as he 1

working under them and they were given to him.

(Mr. Keedy:) They ought to proffer for what purpose they ws

oT Ge

,.<

-_

eee er oe DS OY

HARVEY W. ©. WHITACRE. 49

to show the rules, and if their proof does not come up to the proffer,

it is not admissible.

Mr. Doub:) We proffer to show that the engineer had been there,

and was absent at the time the fireman spoke to the plaintiff relative

to the tin cup as testified to by the plaintiff.

(Admitted with the proffer; objection; objection overruled; ex-

tion reserved. )

“ithe rules are offered as a whole. Objections and exceptions cover

each of the rules and all of them together.

To which rule No. 808 on page 154 of the book of rules dated

January 1, 1913, as proffered in evidence by the plaintiff, the de-

fendant objected, but the Court overruled the said objection and

admitted the said rules No. 808 on page 154 of the book of rules

dated January 1, 1913, in evidence, whereupon the defendant ex-

cepted and prays the Court to sign ‘and seal this its tenth bill of

exceptions, which is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [seat.]

M. L. KEEDY. [ SEAL, ]

After offering the evidence set out in the aforegoing bill of excep-

tions, which is hereby made a part hereof, as fully as if the same

had been here incorporated, the said rule No. 898 on page 154,

81 of the book of rules, dated January 1, 1913, was offered in

evidence as follows:

Rule No. 808, page 154, under heading

“Freight Brakeman.”

“He must obey the orders of the yard master. When on duty

he is under the direction of the conductor. It is his duty to attend

to the brakes; be provided with and take care of and properly display

train signals ; assist the conductor in loading or inlnaig the freight;

in inspecting the cars, and in doing all things necessary for the safe

and prompt movement of the train.”

“He must report for duty at the appointed time and when neces-

sary assist in making up his train.”

“When not engaged in duty elsewhere he must occupy the post

assigned to him.”

“The front brakeman must in like manner protect the front of

the train, when the fireman cannot leave the engine.”

ba on duty he is under the direction of the conductor or

under the locomotive engineer in the absence of the former.”

Page 155.

“He must examine and know that the brake shafts and attach-

ments, ladders, running boards, steps, hand holds and other parts

and mechanical appliances which he is to use are in proper condi-

tion; if not, put them so, or report them to the proper parties and

have them put in order before using.”

4—374

50 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

Page 165, Section 818,

under heading

“Locomotive Engineers.”

“He must report for duty at the appointed time; see that the

engine is in good working order and furnished with necessary sup-

plies; give checks for fuel and stores received, and assist in

82 shifting and making up the train when required.”

“He must not leave the engine during the trip except in

tase of necessity, and must then leave the fireman in charge.’

~ Page 167, Paragraph 819.

under heading

“Fireman.”

“The fireman must report for duty at the appointed time; assist

in shifting and making up the train when required; assist the loco-

motive engineer in keeping a lookout for signals and obstructions;

take charge of the engine during the absence of the locomotive

engineer, and assist in making repairs when required.”

“He must not run an engine in the absence of the locomotive

engineer, unless in some emergency he is directed to do so by the

conductor or some one in authority. He must be familiar with

the rules for the protection of trains and use of signals which he must

be prepared to use promptly.”

“He must protect the front of the train when necessary.”

“Fireman shall read all train orders received by the locomotive

engineer and must have a correct understanding of them.”

C. G. TREISLER, a witness of lawful age, produced in behalf of

the plaintiff, being duly sworn, testified as follows:

Direct examination.

(By Mr. Doub:)

Q. Mr. Treisler, what is your business?

A. Superintendent of the Metropolitan Life Insurance Co., for

Western Maryland and West Virginia. —

‘Q. Where do you reside?

A. Oak Hill Ave., in Hagerstown.

83 Q. You are in the insurance business?

A. Yes, sir.

Q. Do you know if American Insurance Companies have tables

showing the annuities, the value of an income, etc.?

A. Yes, sir.

Whereupon the following question was asked:

Q. Will you look at your tables? State to the jury whether those

tables show the value of an income? State whether you can testify

HARVEY W. C. WHITACRE. 51

from these tables the present value of an invome of sixty-five dollars

per month for a period of thirty-one years? .

To which question the defendant objected, but the Court over-

ruled the said objection and permitted the question to be asked and

the testimony given in evidence, whereupon the defendant excepted

and prays the Court to sign this its eleventh bill of exception, which

is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON, [sgat.]}

M. L. KEEDY. [ SEAL. |

|

After offering the evidence set out in the aforegoing bill of excep- —

tions, which is hereby made a part hereof as fully as if the same

were here incorporated, the said question was asked and the follow-

ing evidence given:

Q. What is the expectancy of a man of twenty-six years in good

health?

(Mr. Doub:) We proffer to show that the ogee ‘is absolutely

incapacitated and will be for the balance of his life.

(Objection ; objection overruled; exception reserved. )

A. Thirty-eight and twelve hundredths (38.12) years.

_ The witness then further testified:

Whereupon the following question was asked:

Q. Will you state to the jury what the present worth of a monthly

income of sixty-five dollars per month Guring a period of thirty-

eight years would amount to according to the American system

of calculation?

84-106 To which question the defendant objected, but the Court

overruled the said objection and permitted the question to be

asked and the testimony to be given in evidence, whereupon the

defendant excepted and prays the Court to sign this its twelfth

bill of exception, which is accordingly done this 1st day of June,

1914.

ROBERT R. HENDERSON. [seat.]

M. L. KEEDY. [SEAL. ]

After offering the evidence set out in the aforegoing bill of excep-

tions which is hereby made a part as fully as if the same were

here incorporated, the said question was asked and the following

evidence given: ,

A. $15,655.20.

And the witness further testified:

Cross-examination.

(By Col. Pearre:)

Q. That is based upon the theory that he is going to live thirty-

eight and twelve Biclvodithe years?

52 THE BALTIMORE & OHIO RAILROAD COMPANY V8.

A. I am givi ou the present worth of sixty-five dollars pend

month for ty-cght and twelve hundredths years.

Will you state whether it was not based upon the assumption —

that - man would live thirty-eight and twelve hundredths years —

more

A. The calculation was based upon that. 3

Fs 2 If the man did not live that long it would not amount to |

A. In calculations of this kind life insurance companies do not

take one life, but all lives together and take the average.

107 Mr. James P. Garrney, a witness of lawful age, produced

: in behalf of the plaintiff, being duly sworn, testified as fol-

OWS:

Direct examination:

(By Mr. Doub:)

Q. What is your name?

A. James P. Gaffney.

Q. Where do you reside?

A. Cumberland, Maryland.

Q. What is your profession?

A. Civil engineer.

Q. Have you ever followed any other profession besides civil —

engineer?

A. No, sir.

Q. Have you ever acted as railroad engineer?

A. Yes, sir. Civil engineering comprises that.

Since 1871 I have been continuously engaged in civil engineerin

I was first an engineer on the Randolph and Oswego Railroad,

which runs across the Hudson River from Kingston on the

108 Hudson across the Catskill Mountains. I was three years

with that road. I was then with the Victoria Railroad of

Canada for two years; then in Alabama with the Selma, Rome and

Dalton Rail from ’76 to ’"78—two years. Then I came to

Cumberland and built the Pennsylvania Railroad in Maryland;

engineered and built it; and then I built the George’s Creek and

‘Cumberland Railroad. I continued with the George’s Creek and

Cumberland from °79 until 1906, when I went with the Norfolk |

and Southern Railroad running down with branches to Raleigh and

remained there until 1909. Then I opened an office as consulting

engineer in Cumberland, and two years ago I was appointed city

engineer of the City of Cumberland.

@. You are now city engineer of the City of Cumberland?

A. Yes, sir.

Q. Have you examined the cinder pit spoken of here?

A. Yes, sir. I have been there on three occasions.

Q. When did you first examine it?

A. A little more than a month ago and then about a week

after that and then only last Saturday. a

Q. Was there snow on the ground?

HARVEY W. C. WHITACRE,

_ A. Snow on the ground the last time; yes, sir.

- Q. No snow on the ground previous to that?

A. No, sir. No snow.

Q. Will you state to the jury how that cinder pit is constructed

~ and describe it to the jury?

_ A, You mean the pit

Q. Yes, sir; the pit?

: A. There are two wide pits about twelve feet wide, each running

parallel, and between these two pits there is a track on which cars

are goog to load the cinder and parallel to these are two other

tracks on which the engines run and ashes are raked from the

bottom of the engines. They are built on the ineline so that as

_ the ashes come down they run into the centre of the pit.

2 Q. What is the length?

109 A. 180 or 200 feet.

Q. What is the width?

A. Three tracks of five feet would be fifteen feet and two tracks

of twelve feet would be twenty-four. I suppose over forty feet. It

is practically fifty feet between the up-rights.

Q. How deep is the cinder pit?

A. About nine feet. There are two pits which are each nine feet

deep and twelve feet wide and then there are ae between the rails

on which the engines run on the sides. They slant down toward this

larger pit so that the ashes go down in there and then buckets take

- them and put them on the cars.

Q. What are cinder pits used for?

A. For disposing of the ashes taken from the engines.

Q. What is the water for?

A. To cool off the red hot cinders and ashes.

Q. What is the color of the water in the cinder pit?

A. When I last saw it it was extremely black. I suppose in con-

- tradistinction to the snow. Previous to that it was a gray color, with

a very fine skim of dust.

Q. What gives it that color?

A. The ashes. The light portions of coal burn. The ashes cause

Q. What is the general appearance of the railroad yard?

A. It is dark more or less with cinders, with coal dust and all.

Like all our yards in Cumberland are.

QQ. What straddle the cinder pit?

A. Parallel series of trestles and on these trestles there is a travel-

ing crane that moves up and down with an electrical arrangement

that drags the buckets.

Q. Will you state whether the cinder pit as constructed and main-

tained by the Baltimore and Ohio Railroad is or is not safely con-

structed and maintained?

A. I consider it very unsafe.

- 110 Q. In what respect

A. Inasmuch as persons crossing the track might walk into

it inadvertently not knowing where he was going.

Q. Mr. Gaffney, will you look at these two pictures and state

54 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

whether they fairly represent that cinder pit and the location as it

is now and the manner in which it is maintained?

A. Yes, sir. They are both fine photographs of the place?

(Mr. Doub: We offer picture marked ‘“Plaintiff’s Picture No. 2,

taken Aug. 12, 1913,” and “Plaintiff’s Picture No. 1, taken Aug. 13,

1913.” We offer them to the jury.)

Q. Mr. Gaffney, how far apart are the up-rights?

A. About eighteen feet, I think.

Q. I see in the picture something like a bench running between

the two up-rights. What do you call that?

A. I call that a strut.

Q. How many of those struts are there?

A. I remember the first and then there is a space or two—open

spaces—and then there is another strut and then in another space a

strut. Three or four struts, I remember.

Q. Will you state whether the cinder pit is on a level with the land

and tracks adjoining?

A. Yes, sir—on a level with the tops of the ties.

Q. Mr. Gaffney, just come and show the jury where the cinder pit

begins.

(Witness takes photograph and shows it to the jury.)

A. The cinder pit commences here. The deep cinder pit is here

in this place, twelve feet wide—and this here—they are cinder pits

probably twelve feet wide and they slant down towards the depth

here, and the ashes come down here and this bucket comes down and

grabs them out and loads them on these cars.

Q. What is this frame here?

A. That is to stop any person from walking along the track and

inadvertently going into it.

111 Q. That is at the end?

A. Yes, sir; at the end.

Q. ‘Where are those struts that you spoke about?

A. Here is one—here.. (Indicating on picture.)

Q. This is one here and one back here.

A. Yes, sir. That faces the dry system where the diagonal braces

are

Q

A

2. The diagonal braces are only found where the struts are?

Yes, sir.

Whereupon the witness was asked the following question:

Q. Will you state to the jury in what way that cinder pit could

have been made reasonably safe?

To which question the defendant objected, but the Court over-

ruled the said objection, and permitted the question to be asked and

the testimony to be given in evidence, whereupon the defendant ex-

cepted and prays the Court to sign this its eighteenth bill of excep-

tions, which is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [seat.]

M. L, KEEDY. [sEat. ]

a.

HARVEY W. C. WHITACRE. 66

After offering the evidence set out in the aforegoing bill of excep-

tions, which is hereby made a part hereof as fully as if the same were

here incorporated, the said question was asked and the following

evidence given :

. A. There are several ways in which it could have been made safe.

By having gates there or bars along continuous as you saw in the

struts to prevent any person walking across the track from falling

into that pit—as a farm gate, an elevator gate or any kind of a sim-

ple or movable bar—a three-by-four bar or a two-by-six bar dro

down that would prevent a person from walking across, or they

might have signs put there—danger signs—just as any danger sign

might avoid any person inadventently from walking in.

112 Q. Is there any reason why the steel frame work could not

have been made wider?

(Objection ; objection sustained. )

And the witness further testified :

Cross-examination.

By Col. Pearre:

Q. As I understand you, your active work as an engineer began

in 1871?

A. Yes, sir.

Q. With a railroad?

_A. Yes, sir. My active work began on Staten Island in May of

1871, and in July of that year I went on railroad work..

Q. So in July, 1871, you began your railroad work?

A. Yes, sir.

Q. The first railroad was what?

A. Randolph and Oswego. Then for New York, Kingston and

Hudson we constructed a line out in New York about eighty miles.

There was a piece built to it. During the winter it was changed to

New York, Kingston and Syracuse.

Q. How far was that additional line?

A. About 150 miles.

Q. Altogether?

A. No, sir. From Stamford.

Q. Did you build ony cinder pits or operate any cinder pits in

connection with that road?

A. I do not remember.

Q. Then you went to the Victoria Railroad in Canada?

A. Yes, sir.

Q. Where does that run?

A. From Lindsay in Ontario it runs northwest to Quebec.

113 Q. What distance?

A. About twenty-five miles and located about 100 miles

more. I left Canada then because I was disgusted with the climate.

Q. Then you built twenty-five miles of railroad in Canada?

A. Yes, sir.

Q. And laid out about.125 miles more?

56 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

. No, sir; I left there. :

How long were you with the Randolph and Oswego Railroad

. Two years.

And three years in Canada?

Yes, sir.

7 en you were in Canada did you build any cinder pits?

O, sir,

en you went to Alabama with the Selma, Rome and Dalto

OPop>

Eope>

3 g

d

65

.

?

As engineer?

. Yes, sir—consulting engineer.

. Did you design any cinder pits there?

No, sir.

Then you came to Cumberland?

Yes, sir.

When?

In 1878,

agg you laid out the Pennsylvania Railroad in Maryland

es, sir.

Q. Did you build any cinder pits with that railroad?

A. No, sir.

Q. Then you went to the George’s Creek Railroad?

Yes, sir.

How long were you with the Pennsylvania Railroad?

Six or seven months.

Then you went to the George’s Creek Railroad?

Yes, sir.

: Did you build any cinder pits with the George’s Creek Rail

A. Yes, sir. I built the round house in 1880 and soon after tha

we built the cinder pit.

Q. How long ago was that?

A. Over twenty years ago.

Q. Has there been much advance in the construction of cinde

pits since then?

A. Yes, sir.

Q. What was the character and size of the cinder pit of th

George’s Creek Railroad pit?

A. Sixty-feet long and just between tracks and it run along be

tween the tracks and a side track along. There was none of thai

structural arrangement we have here.

Q. Can you describe the construction of that cinder pit as yot

have described this cinder pit?

A. It was I believe about five feet deep, simple rails along the sid

and engine ran on it and ashes dropped out.

Q. Was there not at each end a concrete pier and concrete post’

A. No, sir. We did not have any concrete work at all in the

George’s Creek pit.

Q. Is that pit still there?

POPOPOPOrPOp>

oe

-_

Bopopep &

HARVEY W. C. WHITACRE. 57

A. Yes, sir. I guess so, but I do not know.

115 Q. Did it not have a concrete wall and then a pillar and

then another pillar and then a third pillar and then another

abutment at the other end?

A. No, sir. That is not the way I constructed it.

Q. You say the pit is still there?

A. Yes, sir, but it may be filled up. I have not been there for

>of

You say that was modern at that time?

. Yes, sir.

. How does that compare with present construction?

. Well, there has been changes.

Then you had small engines?

. Yes, sir.

. Was that a dry pit or a water pit?

; 644 pit. We had a hose to cool off the ashes.

‘ os

()

PO

Pe

you have guard rails at that pit?

, sir.

Q. Any danger signs?

A. No, sir.

Q. Did you put up rails of any kind to prevent people from falling

into it?

A. Yes, sir. The wheel track came along and ran right by that

to the machine ship. No person could have passed through there.

Q. You put no barriers up there?

A. No, sir. ;

Q. No signs?

A. No, sir. It was trifling this ash pit that I spoke about along in

comparison with the one there. We had only ten engines to take

care of there—with thousands here. They were emptied in the even-

ing.

116 a What was the length of that railroad?

A. The George’s Creek?

Q. Yes, sir.

A. The George’s Creek took in the Pennsylvania. That is the

reason I said I was only with the Pennsylvania in Maryland several

months. When I went to go to the George’s Creek the Pennsylvania

had secured it and completed the building into Cumberland and the

two roads included about forty-two miles altogether.

Q. The George’s Creek run from Cumberland to Lanoconing?

A. Yes, sir.

Q. How far was that?

A. Twenty-two miles and another section ten miles, making thirty-

two miles,

Q. The Pennsylvania Railroad, how long was that?

A. About eight miles.

Q. So in the whole George’s Creek System, including the Penn-

sylvania Railroad of Maryland, how many miles were there?

A. About forty miles.

Q. Then you went to the Norfolk and Southern?

A. Yes, sir,

>PoPo

58 THE BALTIMORE 4 OHIO RAILROAD COMPANY VS.

Q What was the length of that railroad?

A. About 880 miles. It ran from Norfolk and down

Elizabeth City to Eden and Chockquinity and from there through

Little Washington to Newbern, and altogether the system amounted

to 880 miles.

Q. How — you with that road?

A. Until 1909.

Q. About how many years?

A. Two and one-half years.

Q. Did you build any cinder pits there?

117 A. No, sir. The road went into bankruptcy and at Chock-

quinity it had made large arrangements.

Q. You built no cinder pits on that road?

A. No, sir. But we had designed them.

Q. Did you design them yourself?

oe “see I had a fine engineering force and I did not design them

myself.

Q. Were the plans similar to the plans of the Baltimore and

Ohio cinder pit at Cumberland?

A. Not exactly.

Q. It was done in your office under your general supervision, but

not by you?

A. Yes, sir.

Q. Then you built one cinder pit sixty feet long on the Georges’s

Creek Railroad?

A. Yes, sir. That is all.

Q. And what you know of cinder pits is gathered from outside

experience?

A. Yes, sir.

Q. Then you came back to Cumberland and opened an office as

consulting engineer?

A. Yes, sir.

Q. And you were appointed city engineer?

A. Yes, sir.

Q > There you do not build cinder pits?

A. No, sir.

Q. How long have you been out of the railroad work?

A. Five years. That is building railroads. But I have been on

railroads.

Q. I mean officially connected?

A. Yes, sir; five years.

118 Q. You say you visited this cinder pit?

A. Three times.

Q. When?

A. Once about a month ago and then a week after that and then

about last Saturday. ’

Q. At whose request did you go there?

A. At my own.

Q. Did you not go at the request of the plaintiff's attorney in

this case?

A. No, sir. I went down voluntary when he asked me about it

HARVEY W. C. WHITACRE. 59

“I went down and looked it over. I seen Mr. Doub and he showed me

the photographs, and I said they might be misleading and I went

down to see for myself.

Q. You say this cinder pit is for getting hot ashes out of the way

and removing them?

A. Yes, sir.

Q. And you found three tracks?

A. Yes, sir. There were two tracks where they emptied cinders in

and the other track.

Q. Two tracks for throwing cinders in and between these two

tracks a track where they have cars?

A. Yes, sir.

Q. How do they get ashes out of the cinder pit?

A. By buckets—drags.

Q. How do they get ashes out of the engine into the pit?

A. They rake them out and they fall into the pit.

Q. And there is a slanting wall?

A. Yes, sir.

Q. What is the idea of that?

A. To make it deep so that buckets can grab them.

119 Q Do you know what the depth of the pits under the

engines is?

A. I measured them last Saturday and they are three feet.

Q. Towards what point?

A. Towards the trestle side.

Q. The outside in each case?

A. Yes, sir.

‘ Q. The least depth is three feet. And then it runs down to eight

eet?

A. No, sir. My measurement was nine last Saturday. Some men

were there and they said it was three feet. I saw them and I asked

the man why he was doing it.

Q. The shallowest part is three feet?

A. Yes, sir.

Q. And the depth is what?

A. I do not know. I only measured the outside depth.

Q. When these ashes are drawn out in the pit below what do the

men do towards getting them into the deep pit?

A. I saw a man with a scraper shove them down in the cinder

pit.

Q. The scraper would go down and shove the ashes into the cinder

pit?

A. Yes, sir. The idea of getting it into the deeper pit is for the

bucket to go down and get it and put it on the cars.

Q. You said that last Saturday when the snow was there the

appearance of the pits were darker?

A. Yes, sir.

Q. You attribute that to the snow?

A. Yes, sir.

Q. The last time you gave testimony the ashes were a

120 lighter color?

A. Yes, sir. A gray because the rest was mixed with coal

- 60 THE BALTIMORE 4 OHIO RAILROAD COMPANY VS.

Q. You could distinguish the difference very easily?

A. Oh, yes; I could.

Q. By the color?

A. Yes, sir. By the color.

Q. You said the reason for putting guard rails or obstructior

there was to keep those who would walk into the pit from wa

into there inadvertently?

A. Yes, sir.

Q. If a man was looking where he was going and was wat

he would not fall into there, would he?

A. No, sir. I think not.

Q. Please state whether in your opinion as an engineer if t

a modern and up-to-date cinder pit?

A. Yes, sir. The best I ever saw.

Q. Please state to the Court and jury whether you have ever

any other cinder pits of this same design and construction?

A. No, sir. I have seen drawings in my engineer work.

Q. Mr. Gaffney, will you please state whether you have ever

any modern water cinder pit protected by guard rails or barrie

A. No, sir. I have never seen any constructed like that.

ba i you ever seen any cinder pits guarded as you have

ca

A. No, sir. Except in the George’s Creek Railroad pit there

obstructions to keep ag a from falling in.

Q. Did you not say that the difference in the George’s Creek

road pit and the Baltimore and Ohio Railroad pit is so great tl

pont g not require any protection?

A. No, sir. Not just that. I said it was so close around the

table that it did not need protection.

121 Q. The roundhouse and yard of the George’s Creek

road was very much smaller?

A. Yes, sir, |

Q. You said there was no necessity for guard rails at the Gec

Creek pit at all.

A. But with understanding that there were some wheels ar

there.

A. Yes, sir. A track with car wheels on it.

@. os anges put there to act as a barrier?

. No, sir.

Redirect examination.

(By Mr. Doub:)

Q. Did you ever see this pit in the Cumberland yards of the ]

more and Ohio Railroad at night, Mr. Gaffney?

A. No, sir. I did not.

Q. And you were there three times in the day time?

A. Yes, sir. .

Q. You stated that this pit was well constructed?

A. Yes, sir. ee

&. #28

ere

t it

phnnns

HARVEY W. C. WHITACRE. 61

Q. Fine structure?

A. Yes, sir. Fine structure.

Q. Did that relate to its safety?

A. No, sir.

Q. Mr. Gaffney, have you kept up with your profession as a rail-

oad engineer since you abandoned railroads?

(Objection ; objection sustained ; leading. )

J. B. Fereuson, witness of lawful age, produced in behalf of

the plaintiff, being duly sworn, testified as follows:

122 Direct examination. |

(By Mr. Wagaman:)

Q. Mr. Ferguson, what is your full name and what is your profes-

sion

A. John B. Ferguson ; civil engineer.

Q. Where were you educated?

A. Massachusetts School of Technology.

Q. Is that a good school?

A. Yes, sir.

Q. When did you graduate?

A. In ’99.

Q. Where have you been employed in your profession?

A. With the icago, Burlington and Quincy Railroad; the

Boston and Maine, the Pennsylvania Railroad, Ohio Electric Rail-

way and for the last five years in private practice in Hagerstown.

a You live here now and have been for five years?

A. Yes, sir.

Q. How long were you with the Chicago, Burlington and Quincy?

A. Five and one-half years.

Q. Boston and Maine?

A. Simply spent one summer with them.

Q. How long with the Pennsylvania?

A. About four and one-half years.

Q. Mr. Ferguson, have you heard the testimony of these wit-

nesses that have described the location and construction of. the ash

pit and have you seen the location of the Baltimore and Ohio cinder

pit at Cumberland?

A. Yes, sir.

Q. State whether or not that pit is reasonably safely con-

structed?

123 (Objection ; objection sustained.)

+» Q. Mr. Ferguson, in the engineering business which you have

followed in connection with the work done for these various rail-

roads, have you had anything to do with the construction of cinder

its?

A. Yes, sir.

Q. Where and when?

A. I had the last piece of work with the Pennsylvania Railroad,

62 THE BALTIMORE & OHIO RAILROAD COMPANY VB.

which was the direct charge of a very large coaling station jus

of Coatsville. I sup the cost was a quarter of a million d

In connection with that was a very large plant.

Q. Is the construction of cinder pits the general work or s

of the work of a railroad engineer?

A. Well, I should say it would be part of his general work

course, there is more than one department concerned usual

the construction of a cinder pit.

Q. Have you seen any other cinder pits?

A. Yes, sir.

Q. Are you familiar with cinder pits?

A. Yes, sir. In general.

(Question is asked, objection made and question was withd

Witness, however, stated that he has been here all the time and

all the testimony.)

Q. Mr. Ferguson, you have heard all the testimony you

stated. Assuming the testimony given to be true, state whet!

not in your opinion the ash pit described is reasonably sat

rsons forming members of crews of trains or engines sté

in that immediate locality or who are obliged to assemble

for reason of work in that neighborhood?

(Objection ; objection sustained as to that part of the questi

to if they assembled there. )

Whereupon the following question was asked:

Q. Assuming the testimony which you have heard to be

state whether or not in your opinion the ash pit is r

124 ably safely constructed and maintained in reference to

bers of crews who go there in that neighborhood in th

charge of their duties?

To which _— the defendant objected, but the Court

ruled the said objection and permitted the question to be

and the testimony to be given in evidence, whereupon the defe:

objected, and prays the Court to sign and seal this its ninet

bill of exception, which is accordingly done this 1st day of

1914.

ROBERT R. HENDERSON. [sea

M. L. KEEDY. [SEA

After offering the evidence set out in the aforegoing bill .

ceptions, which is hereby made a part hereof as fully as if the

were here incorporated, the said question was asked and th

lowing evidence given:

(By the Court:)

Q. Mr. Ferguson, what do you know about the constructi

cinder pits?

A. I never saw the one at Cumberland.

BoB a8

HARVEY W. ©. WHITACRE. 63

(By the Court:)

_Q. Do you know anything about the construction of cinder

its?

TA. I have spent ten or twelve years around railroads. I had

charge of this one at Thorndale, which took about ten or twelve

years to construct and during my experience with railroads I was

working around the yards. I have traveled a great deal on freight

trains. I lived near a railroad yard and passed by railroad yards

many times at night.

(By the Court:)

Q. Any cinder pits there?

A. Yes, sir.

(By the Court:) If he means to say from what he has said about

what he knows of other cinder pits, then he may go on.

(Objection; objection overruled; exception reserved.)

A. I can understand; I think that at times the cinder pits would

be dangerous.

125 (Objection.)

Q. Just answer the question?

A. I think not.

And the witness further testified :

Q. Can you say whether it is or not?

A. I would say it is not,

Cross-examination.

(By Col. Pearre:)

Q. That is ney your opinion, is it not?

A. Yes. I say that is my opinion.

Q. What is that opinion based upon? Is it based upon other

we its — you have ayo

- Yes. Partly on that and partly on my experience in rail-

road yards and operations. ' be

Q. What other pits have you seen?

A. I was stationed all one summer along side of a fairly good

sized yard at Burlington.

A. Very ordinary one. Ashes were dumped between the rails

and.shoveled into a depressed track alongside of that pit.

Q. Did it Have a guard rail?

A. No, sir.

Q. ge any barriers to protect people from falling into it?

0, sir.

Q. What-was the next cinder pit you saw?

A. On the Mail Railroad, a town about 100 miles east.

Q. What was that?

A. Alliance, Nebraska.

64 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

Q. What was the character of that one?

A. The same,

126 Q. What other one?

A. In Deadwood, South Dakota, a Mail Railroad.

Q. — that have any guard rails or barriers?

. No, sir.

Q. What was the next one?

A. In the yard of West Philadelphia. That was a depressed

track running along which makes a cinder pit.

Is it a cinder pit?

. Yes, sir.

Did it have any guard rails or barriers?

No, sir. Not at that time.

What other one?

lare Furnace, at East Altoona. .

What was the style of that?

It was different—the style of the pit.

What was that?

. There was a crane and this picked up the ashes. It was a

pit and they put the fires out by a hose with water.

Did they have any guard rails or barriers?

. I think not.

Q. What was-the next one?

A. I believe there is one in the Pittsburg Yards somewhat similar

to that one at Blare Furnace.

_ @ In the Pennsylvania Railroad Yards?

A. Yes, sir.

Q. Does that have guard rails?

A. No, sir; I believe not.

Q. Where else?

127 A. C., H. & D. Railway at Lima, Ohio. It has the same

kind of a depressed track and overhead crane.

PS You said something about Coatsville. Do you mean Thorn-

e

A. Yes, sir. Just east of Coatsville.

Q. Did they have guard railing? !

_A. Well, that was different. There was a design to clean out ten

engines at one time.

2. Were they water ash pits?

A. No, sir. They were dry. They were different from anything

I have described yet.

Q. Describe them.

A. The ashes were thrown down and into tunnels and they were

hauled through the tunnels to a concrete bin and from that bin were

dumped into the receiving car. ;

Q. Were they protected by barriers or guard rails?

A. Yes, sir; partly. Stationary barriers separate them.

Q. Were they put up there for that purpose?

A. No, sir. Just incidental. :

Q. Have you seen the Cumberland pit?

A. No, sir. Not to know them.

>) >

w

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perp

We

’ HARVEY W. C. WHITACRE, 65

Q. Have you ever looked at them?

A. No, sir,

Q. I believe you testified to something about this pit not being

asonably safe. In what respect is it not reasonably safe?

A. I think it is a little open in allowing men working in that

ighborhood to cross tracks and fall into those pits.

Q. Do you understand that men working there as members of

ain crews would have to cross these pits?

A. I suppose it would be convenient at times.

8 Q. Do you mean to cross these pits?

A. Yes, sir. When there is blocking of trains.

Q. Then you mean that it might be convenient for men to go

ross these pits when there is blocking of trains?

A. Something like that; yes, sir.

Q. Do you know that no trains at all go up there?

A. I do not know about trains at all. I only heard the testimony.

Q. Do you know that only engines go up there?

A. No, sir. Trains may be stalled up there.

Q. Did you hear the testimony? .

A. Yes, sir.

Q. Did you not hear that the trains were made up at Evitts Creek

d the engine was taken down by the fireman, brakeman and engin-

r about three-fourths of a mile below where the train is?

A. Yes, sir.

Q. Did you understand that there was a train of cars up here at

is cinder pit?

A. Yes, sir. They might be.

Q. — you understand that there was testimony to that eifect?

A. No, sir.

Q. Did you understand that there was no train there at this time?

A. I never upderstood that there was no trains never there.

Q. If only engines were there and the trains three-fourths of a

ile away were made up would that modify your testimony?

A. I suppose that the place would be dangerous to men not fa-

liar with the neighborhood and at times men would not know

1ere they were, particularly on very dark nights.

Q. Suppose a man knew all about the neighborhood?

9 _ Place would be less dangerous, but they were not fa-

miliar.

Q. Suppose he had been there twenty times by day and six times

‘night and was very familiar with the location of the coal tipple

e engines on the ready tracks, and the ready tracks, do you still

ink that it would be dangerous to him?

A. It might be dangerous to him possibly depending upon condi-

ns.

Q. What do you mean by that?

A. Well, if it was a very dark night.

Q. Would a light help him?

A. Yes, sir. I think it would.

Q. Suppose four arc lights were burning over his head, would that

lp him?

5—374

THE BALTIMORE & OHIO RAILROAD COMPANY VS.

A. It would help him to locate the structure, I suppose.

Q. Would four are lights 1,000 candle powers wach balp him to

locate the pit?

A. I am not quite clear on the location of these are lights. They

are overhead and in reasonable distance.

Q ee that there were four are lights—one overhead and

one on each side of 1,000 candle power each, would they help him

to locate the pit?

A. Yes, sir; unless there was a heavy fog.

Q. It would take a very heavy fou?

A. Well, some nights are very foggy.

Q. Are you an expert on fogs?

A. I do not claim to be. No, sir.

Redirect examination.

(By Mr. Wagaman:)

Q. Mr. Ferguson, the pits you mentioned were all dry pits?

A. All dry pits.

130 Whereupon the witness was asked the following question:

Q. If these dry pits were filled with ashes a man might walk on

those pits without injury to himself? :

To which question the defendant objected, but the Court over-

ruled the objection, and permitted the question to be asked and the

testimony to be given in evidence, whereupon the defendant excepted

and prays the Court to sign and seal this its twentieth bill of excep-

tion, which is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [szat.]

M. L. KEEDY. [ SEAL. }

After offering the evidence set out in the aforegoing bill of excep-

tions, which is made a part hereof, as fully as if the same were here

incorporated, the said question was asked and the following evidence

given:

A. Yes, sir.

And the witness further testified :

Whereupon the witness was asked the following question:

Q. If it was filled with water, would it make any difference?

To which question the defendant objected, but the Court overruled

the objection and permitted the question to be asked and the testi-

mony to be given in evidence, whereupon the defendant excepted

and prays the Court to sign this its twenty-first bill of exception,

which is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [sxat.]

M. L. KEEDY. [SBAL. |

After offering the evidence set out in the aforegoing bill of excep-

tions, which is made a part-hereof, as fully as if the same were here

HARVEY W. ©. WHITACRE. 67

incorporated the said question was asked and the following evidence

given :

131 A. Crossing the pit?

Q. Yes? ™

A. Yes, sir.

And the witness further testified :

Q. If the pit were filled with water and covered over with ashes

30 as to have the appearance of the yard in the neighborhood of

the pit, would it or not increase the danger in the water pit?

(Objection; objection sustained. )

Recross-examination.

(By Col. Pearre:)

Q. In your railroad experience in all the cinder pits you know of,

have ead to known any to be protected by guard rails or barriers

put there for that purpose?

A. No, sir. I have not.

Redirect examination:

Whereupon the witness was asked the following question:

(By Mr. Wagaman:)

Q. Mr. Ferguson, in your on at as an engineer, can you state

whether there is es dee og and reasonable inexpensive way to pro-

ect that pit at Cumberland, from danger to persons in the neighbor-

hood of it?

To which question the defendant objected, but the Court over-

ruled the objection and permitted the question to be asked, and the

estimony to be given in evidence, whereupon the defendant excepted

und prays the Court to sign this its twenty-second bill of exception,

ehich is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [sgat.

M. L. KEEDY. [ SEAL.

132 After offering the evidence set out in the aforegoing bill

of exceptions, which is made a part hereof as fully as if

the same .were here incorporated, the said question was asked and

the following evidence given:

A. I would agree with the suggestion made by Mr. Gaffney which

s shown in every third panel could be reasonably placed in every

panel or some sort of a rail to prevent a man from passing by the

werhead structure, or by a simple system of lights.

And the witness further testified:

Q. What system of lights?

A. Lights.on lines as are often employed at stations to display

langer signals?

68 THE BALTIMORE & OHIO RAILROAD COMPANY V8.

Q. Lights stationed at this ash pit, where?

A. To guard the four approaches at each end and the side.

Q. Do you mean to put on a rail fifty feet high or down on a level

th a man’s ?

A. On a level with a man’s eyes.

Q. This would be reasonably inexpensive and safe?

. I think so.

Recross-examination.

(By Col. Pearre:)

2. In your experience did you ever see cinder pits protected that

way?

A. No, sir; I have not.

Q. Do you know the way in which this cinder pit is protected?

A. As t heard Mr. Gaffney describe it.

Q. Did you hear Mr. Gaffney describe this portion there where

the ashes are drawn out from the fire boxes and that men come along

and push the ashes down into the deeper part of the pit?

A. Yes, sir.

133-139 Q. Do you know what kind of a rake or pole is used

for that?

A. I do not know, but I suppose similar to the ones used on the

engine.

A long-handled rake?

A. Yes, sir.

Q. In doing that would not they interfere with the rod there?

A. The rod would have to be moved.

Q. But you agree to that?

A. Yes, sir.

Q. You never seen any fixed that way?

A. No, sir; never knew any to be fixed that way.

Substituted as per agreement of Attorneys herewith:

“The plaintiff then offered in evidence the train sheet, showing

the movement of the train on which the plaintiff was employed the

night of the accident, and H. C. McAdams, a witness called on behalf

of the plaintiff, who was train-master at Cumberland for the defend-

ant company, in explanation of the train sheet, stated that the train

was carried by engine No, 4153, of which Ambrose was conductor

and Albright was engineer, and that the engine crew was called for

1:45 A. M., and the train crew for 2:05 A. M.; that the tonnage was

- 5019 tons, and that the train left Evitts Creek, at the east end of the

Cumberland yards, at 2:51 A. M.; and arrived at Hansrote at 5:27

A. M., and left at 6:28 A. M., and arrived at Sleepy Creek, West

Virginia, at 8:40 A. M., and left at 8:53 A. M., and. that the train

crew was relieved from duty at its destination, at 11:30 A. M., and

the engineer was relieved at 11:40 A. M., and that the crew was paid

from the time at which they were called to go to work: that the en- —

gine crew, including the plaintiff, were required to report at the

— while the train crew were to report down at the Evitts Creek

y: ,

‘

HARVEY W. C. WHITACRE. 69

140 L. J. Witmorn, a witness of lawful age, produced in behalf

of the plaintiff, being duly sworn, testified as follows:

Direct examination.

By Mr. Doub:

Q. Mr. Wilmoth, what position do you have with the Baltimore

and Ohio Railroad?

A. Road foreman of engines on the east end of the Cumberland

division.

141 Q. Where are you located?

; A. Cumberland, Md.

Q. Will you state to the jury if you know who has charge of the

supplies placed upon the engines?

A. The storekeeper at each terminal has charge of the supplies.

Q. Are you the head of that department?

A. No, sir.

Q. What department has charge of it?

A. Storekeeper department. That comes under the Master Me-

chanic.

Q. That is under the Mechanical Department?

A. Yes, sir.

Q. Will you look at the paper that I now hand you, headed six-

teen—twenty-one—twenty-two,

The Baltimore and Ohio Railroad Company,

Motive Power Department,

Revised Locomotive Equipment List,

and tell what it is?

A. That form is 1092 M Rev. to check up supplies on locomotives

when they are turned over from one territory to another.

Q. Where does this list come from?

A. That comes from the General Superintendent of Motive Pow-

ers, office at Baltimore, I suppose.

Q. You produced this list at the former trial, did you not?

A. Yes, sir.

Q. Where did you get it?

A. At the Master Mechanic’s office.

142 Q. In Cumberland?

A. Yes, sir.

The plaintiff then offered in evidence the said list headed “16-21-

22. The Baltimore and Ohio Railroad Company, Motive Power De-

partment, Revised Locomotive Equipment List.”

To the admission of which list in evidence, the defendant objected,

but the Court overruled said objection, and permitted the said list

to be offered in. evidence, whereupon the defendant excepted and

prays the Court to sign and seal this its twenty-seventh bill of excep-

tion, which is accordingly done this 1st day of June, 1914.

ng R. HENDERSON. [se#ar.]

¢ D 7

70 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

After offering the evidence set out in the aforegoing bill of ex«

tions, which is hereby made a part hereof as fully as if the same w

here incorporated, the said list was offered in evidence in the foll

ing manner:

(Mr. Doub:) We now offer this list. The purpose is to sim

show that that is a list of articles that members of the crew were s

to have on their engines, with special reference to the arti

about which we have been speaking, the tin cup and the water coc

(Col. Pearre:) Objection because we say that a tin cup and w:

cooler are not essential to the movement of the train—we want

of it in if anything. ;

(Mr. Doub:) All that is on the paper goes in, both what is

the back and all in order to overcome the objection.

(Mr. Doub:) The following equipment shall be carried on

engine—drinking cup—and the first clause on the back.

We would like to offer the jug or water cooler along with the «

143 & 144 16-21-22. Form 1092 M Rev

“The Baltimore and Ohio Railroad Company.

Motive Power Department.

Revised Locomotive Equipment List.

Locomotive Number —. Station —. Date

Kind.

, 191-.

The following equipment will be carried loose or fixed on the |

motives, as required. Passenger, freight or switch engines.

Drinking cup.

_ One for passenger, one for freight and one for switch—and ot

articles mentioned on the list.

Instructions.

(On Back.)

1. “Each engineer must know that the locomotive is supplied v

the above equipment, in good condition, before commencing a di

work or a trip. A report of any shortage or defective condition n

be made to the foreman in immediate charge; otherwise the engit

will be held responsible.”

After offering the evidence set out in the aforegoing bill of ex

tions which is hereby made a part hereof as fully as if the same v

here incorporated the said supply list was offered and admitted

evidence, and the following evidence was given.

(Defendant reserve- the right to call Mr. Wilmoth as a witne

HARVEY W. C. WHITAURE. 71

“445 Joun H. H. Dycue, a witness of lawful age, produced in

behalf of the plaintiff, being duly sworn, testified as follows:

Direct examination.

(By Mr. Doub:)

Q. What connection did you have with this train drawn by engine

4153 on the morning of June 23rd, 1913?

A. Nothing more than fire the engine.

Q. Did you fire the engine?

A. Yes, sir.

Q. You are a fireman, then, are you?

A. Yes, sir.

Q. Do you know the distance from Cumberland to Cumbo Yards?

A. Seventy-two miles.

Q. From Cumberland in.Maryland to Cumbo Yards in West Vir-

ginia, do you know the distance?

146 A. Seventy-two miles,

Whereupon the witness was asked the following question?

Q. Will you state to the jury how much coal it would be neces-

to shovel to transfer a train loan of cars of fifty-six cars from

Cumberland to Cumbo Yards? :

To which question’ the defendant objected, but the Court over-

ruled the said objection, and permitted the question to be asked

and the testimony to be given, whereupon the defendant excepted

and prays the Court to sign and seal this its twenty-eighth bill of

exceptions, which is accordingly done this Ist day of June, 1914.

ROBERT R. HENDERSON. [seat.]

M. L. KEEDY. [SRAL. |

After offering the evidence set out in the aforegoing bill of ex-

ceptions, which is hereby made a part hereof as fully as if the same

were here incorporated, the said question was asked and the follow-

ing evidence given:

A. About ten tons.

And the witness further testified :

(By the Court:)

Q. How many hours?

We generally make the run in eight hours if we have the

A.

Q. How long have you fired?

A. Five years.

Cross-examination.

(By Col. Pearre:)

Q. How long, five years?

A. Yes, sir.

72 THE BALTIMORE & OHIO RAILROAD COMPANY V8.

-Q. Do you know how long it took that night?

(Objection ; objection overruled; question changed to:)

147 Q. How long did it take you that night to make the tri

from Cumberland to Cumbo?

A. We were ealled at 1:45 to leave at 2; and arrived 11:40.

H. W. C. Wurracrez, recalled.

(By Mr. Doub:)

Q. Mr. Whitacre, will you state to the jury what the usage an

custom of the fireman is with reference to directing the front brak

man in the discharge of his duties in the absence of the conduct

and the engineer?

(Objection ; objection sustained. )

Whereupon the following question was asked:

Q. State, if you know, if there is any custom or usage with wit

to the exercise of authority on the part of the fireman ove

the front brakeman in the absence of the conductor and the er

gineer?

To which question the defendant objected, but the Court ove

ruled the said objection and permitted the question to be asked an

the testimony to be given in evidence, whereupon the defendat

excepted and prays the Court to sign and seal this its twenty-nint

bill of exceptions, which is accordingly done this 1st day of Jun

1914. :

ROBERT R. HENDERSON. [szat.]

M. L. KEEDY. [ seat. |

After offering the evidence set out in the aforegoing bill of e

ceptions, which is made a part hereof as fully as if the same wet

here incorporated, the said question was asked and the followin

evidence given:

A. Yes, there is a custom.

And the witness further testified :

Q. How long have you been a brakeman or employed on the trair

of the Baltimore and Ohio?

148 A. Since August, 1909.

Q. Do you know whether the custom that you speak abou

is very general or not?

(Objection as leading; no ruling of Court.)

A. Yes, sir.

Q. How general is it?

(Objection ; question changed.)

Q. To what extent does the custom prevail?

A. To a great extent.

HARVEY W. C. WHITACRE. 78

Q On what divisions does it prevail?

A. To my knowledge on three divisions—east end Cumberland

division, west end Cumberland division and Connellsville division.

Q. Do you know if that is generally known among the men?

A. Yes, sir; it is.

Q. How long has that prevailed?

A. Ever since I have been braking.

Q. That is five years?

A. Yes, sir.

Q. Have you ever known any violations of that custom?

A. Yes, sir; I have.

Q. In what way?

(Several questions were further asked in regard to custom.)

(Objection is made to all this testimony in regard to custom.)

(Objection sustained and testimony ordered stricked out.)

‘The plaintiff then offered in evidence the book of rules, the two

first or front pages reading as follows:

149 “Rules of the Baltimore and Ohio Systems including Balti-

more and Ohio Southwestern Railway, Chicago, Hamilton

and Dayton Railway, and Staten Island Lines, for the Govern-

ment of the Operating Department, Effective January 1st, 1918.

“The rules herein set forth govern the railroads operated by the

Baltimore and Ohio System and take effect January Ist, 1913, super-

seding all previous rules and instructions. Special instructions may

be issued by proper authorities.”

Signed by the autographic signature of

A. W. THOMPSON,

Third Vice President.

To the admission of which book of rules in evidence the defendant

objected, but the Court overruled the said objection, and admitted

the said book of rules in evidence, whereupon the defendant ex-

cepted and prays the Court to sign and seal this its thirtieth’ bill of

exceptions, which is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. [seat.]

M. L, KEEDY. [ SEAL. |

After offering the evidence set out in the aforegoing bill of ex-

ceptions, which is hereby made a part hereof as fully as if the same

— here incorporated, the said book of rules was admitted in evi-

nce.

Motion is made by Mr. Keedy for defendant to have testimony

of paragraph 808 on page 154, of the rules, paragraph 819, com-

mencing on page 167, and portion of paragraph 818 on page 165,

which were offered with the proffer to show that the engineer had

been present at the engine and was absent at the time the con-

versation or direction as alleged by the fireman was given to the

plaintiff stricken out. Motion is made on the ground that the

proffer has not been complied with.

74 ‘THE BALTIMORE @ OHIO RAILROAD COMPANY VSB.

150 Rule No. 808, page 154, under heading.

| “Freight Brakeman.”

“He must obey the orders of the yard master. When on duty

is under the direction of the conductor. It is his duty to atten:

the brakes; be provided with and take care of and properly disy

train signals, assist the conductor in loading or unloading the frei;

in inspecting the cars, and in doing all things necessary for the

and prompt movement of the train.”

“He must report for duty at the appointed time and when ne

sary assist in making up his train.”

“When not engaged in duty elsewhere he must occupy the |

assigned to him.”

“The front brakeman must in like manner protect the front of

train, when the fireman cannot leave the engine.”

“When on duty he is under the direction of the conductor or ur

the locomotive engineer in the absence of the former.”

Paragraph 819 on page 167 of Rules, under heading

“The fireman must report for duty at the apointed time; assis

shifting and making up the train when required; assist the loco

tive engineer in keeping a lookout for signals and obstructions; t

charge of the engine during the absence of the locomotive engin

and assist in ake repairs when required.

“He must not run an engine in the absence of the locomotive

gineer, unless in some emergency he is directed to do so by the «

ductor or some person in authority. He must be familiar with

rules for the protection of trains and use of signals which he n

be prepared to use promptly. :

“He must protect the front of the train when necessary.

“Fireman shall read all train orders received by the locomo

engineer and must have a correct understanding of them.”

151 Page 165, section 818, under heading

“Locomotive Engineers.”

“He must report for duty at the appointed time; see that the

gine is in good working order and furnished with necessary supp!

give checks for fuel and stores received, and assist in shifting

making up the train when required.

“He must not leave the engine during the trip except in cas

necessity, and must then leave the fireman in charge.”

, ea is divided upon this question and motion has there

ailed.

To which ruling of the Court in refusing to strike out said p

76

graph 808 on page 154 of the rules, paragraph 819 on page 167, and

t portion of paragraph 818, on page 165, the defendant excepted,

and prays the Court to sign and seal this its thirty-first bill of ex-

-gption, which is accordingly done this 1st day of June, 1914.

ie ROBERT R. HENDERSON. [seat.]

M. L. KEEDY. [SBAL. |

(Mr. Keedy:) The motion included all of the three paragraphs

fead and I would like to make a motion to each paragraph sepa-

tately—motion to strike out each one of the rules separately

Whereupon the Court overruled the said motion, and the defend-

‘ant excepted, and prays the Court to sign and seal this its thirty-

second bill of exception, which is accordingly done this 1st day of

June, 1914.

ROBERT R. HENDERSON. fsnat.]

M. L. KEEDY. [SBAL. ]

Whereupon the plaintiff rested.

152 And the defendant to sustain the issues joined on its part,

offered the following testimony:

Tuomas Stewart, a witness of lawful age, er in behalf

of the defendant, being duly sworn, testified as follows:

Direct examination .

(By Col. Pearre:)

Q. What is your full name?

A. Thomas R. Stewart.

Q. What is your business?

A. Master Mechanic of the Baltimore and Ohio at Cumberand.

Q. How long have you been engaged in the railroad business?

A. About twenty-six years.

Q. Do you recall, Mr. Stewart, the taking of some photographs

of the yard there in connection with the cinder pit?

A. Yes, sir.

Q. Were you there at the time of the accident in Cumberland?

A. Yes, sir. I came to Cumberland the 15th of April.

Q. Occupying the sam

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