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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Transcript of Record
- **Published:** January 1, 1916
- **Citation:** 242 U.S. 169

## Text

(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?
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. ;

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.

>oro

Fn)
7
5

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4
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3

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.

re

BS

>POPOPeP
S3z

M

Os

Zz

POPOrore
=

=

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

,.

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

ereorere

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 same position you do now?

A. Yes, sir.

Q. Did you know the condition of the surroundings—the condi-
oy the cinder pit and surroundings at the time of June 23rd,

13?

A. Yes, sir.

Q. Will you state whether or not it was similar to that when the
photographs were taken?

A. Yes, sir; same thing.

Q. Similar?

A. Yes, sir.

(Cross Examination waived.)

76 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

153 H. W. Crark, a witness of lawful age, produced ir
of the defendant, being duly sworn, testified as follow

Direct examination .
(By Col. Pearre:)

Q. What is your name?

A. H. W. Clark.

Q. Where do you live?

A. Cumberland, Maryland.

Q. What is your business?

A. Photographer.

Q. How long have you been etineting?

A. About thirty years, I think.

Q. Did you take some photographs for the Baltimore an
Railroad Co.?

A. Yes, sir.

Q. Of this cinder pit?

A. Yes, sir.

Q. Will you _ look at photograph now shown you
“December, 1913—-B. & O. No. 1,” and state whether you to
photograph?

A. Yes, sir.

Q. Is that a fair presentation and a fair representation
conditions at the time it was taken?

A. Yes, sir.

(Col. Pearre:) Offers photographs marked “B. & O. No.
“B. & O. No. 3, December 13th, 1913,” and also two phot
marked “B. & O. Feb. 5, 1914.” Nos. 5 and 6. Also one.
“B. & O. No. 4, December, 1913.” Nos, 1, 2, 3 and 4 were a
at the same time. It is admitted that all the photograpl
mentioned are a fair representation of the conditions at tl
they were taken.

Q. Please look at photograph now shown you marked “I

ant No. 7,” and state whether you took that photogr

154 A. Yes, sir.
Q. Is that a fair representation of what it shows?

A. Yes, sir.
Q. When was it taken? ;
A. Feb. 27th—marked “Defendant No. 7, February 27th,
Q. Were you there and took this?
A. Yes, sir.
Q. Please state what it covers?

(Objection ; objection sustained ; Court ruling that he coul
out the objects.) ’

Q. State what it shows?

A. It was taken from the south side of the cinder pit looki
Q. How many lights did you see?

A. About four that I saw.

HARVEY W. C. WHITACRE.

rehalf# Q. Four that you remember?
A. Yes, sir.
- Q. Did you see any others?
A. I saw some others a little further away—yes, sir.
' Q. L understood you to say that they were correct representations
of the views that they show?
A. Yes, sir.

Cross-examination :
(By Mr. Doub:)

Q. As I understood you, you only pointed out three places—one
at the west end, one at the middle on the north side and one at the
_ Beast end of the coal tipple?
Ohio A. I think there were two on the north side.
Q. If there were the pictures would show it?
A. Yes, sir. I think there are two. (Witness looks at pictures.)
There are. The pictures already show one, that show two—
155 here is one that shows four—here is first one at the west.
arked slightly towards Cumberland—a little northwest showing

———

COPY BOUN

anos —

HARVEY W. C. WHITACRE. 85

167 Josep J. Barnette, a witness of lawful age, produced
in behalf of the defendant, being duly sworn, testified as
follows:

Direct examination.
(By Col. Pearre:)

Q. What is your full name?

A. Joseph J. Barnette,

Q. Where do you live?

A. Cumberland, Maryland.

Q. What is your business and by whom are you employeed?

A. Locomotive engineer, of the Baltimore and Ohio Railroad.

Q. How long have you been in the railroad service?

A. Twenty-seven years.

Q. How long have you been an engineer?

A. About twenty-four years,

Q. What were you before that?

A. Fireman.

Q. Anything else?

A. Not with the Baltimore and Ohio—three years firing.

Q. Three years firing and since that time have been engineer?

A. Yes, sir.

Q. Mr. Barnette, from where do you run?

A. Cumberland to Martinsburg at the present time.

Q. Do you know the South Cunibestonnd yard of the Baltimore
and Ohio?

A. Yes, sir.

Q. Do you know the cinder pit which has been spoken of here?

A. Yes, sir.

Q. How long have you known it?
168 A. Since the new yard has been put in operation and
we went on that side.

Q. When was that—approximately?

A. I do not know exactly.

Q. About?

A. This last spring sometime that we started to run in there—
early in the spring or latter part of the fall or winter sometime,

Q. Do you mean in the spring of 1913?

A. Yes, sir—1913.

Q. Tell the jury if you know when that pit was put in opera-
tion?

A. I could not say exactly. I remember of changing over to
that side. We had fire tracks on the opposite side and then changed
over. I do not know when.

Q. You are familiar with that ash pit, you say?

A. Yes, sir; I go up by it.

Q. When did you see it last?

A. IT came in on the 26th of Feb.—on the night of the 26th—
that was the last time I saw it.

CLOSE IN CENTER

el

86 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

Q. Will you please state, Mr. Barnette, whether you have any
official connection with the company?

A. I was an examiner on ae book of rules from April until
October. I operated in Baltimore.

Q. For what divisions?

A. Cumberland Division—east end.

Q. Any other official capacity?

A. Member of the Divisional Safety Committee in connection
with the General Committee for about eighteen months.

Q. What are its general duties?

A. Of the safety committee?

Q. Yes?
169 A. To inspect the general condition of the yards, look out
for anything that might cause an accident and make a re-

port and try to correct it.

Q. Will you please state to the jury whether in your opinion the
—_— pit in the South Cumberland yard is a safe or a dangerous

evice?

(Objection on ground that he is not qualified; objection over-
ruled. )

A. Safe. I consider it a safe proposition.

Q. Can you state, Mr. Barnette, what in your opinion would be
the effect of an effort to protect that cinder pit by guard rails or
barriers?

A. It would interfere with the working of it and would be a men-
ace to the men working there and with the men getting on and off
the engines,

Q. Can in your opinion the cinder pit be operated for the purposes
for which it has been designed if there were any guard rails or
barriers there?

A. No, sir.

Q. Have you seen any other cinder pits sifmilar to this one?

A. Not filled with water. There is one at Sir Johns Run and one
at Brunswick.

Q. How are they constructed?

(Objection ; objection sustained.)

Q. What is the nature of the cinder pits at Brunswick and Sir
Johns Run?

A. They are excavated pits, but are dry—they are not filled with
water—they are about the same depth.

Q. They are not filled with water?

A. No, sir.

Q. Similar in other respects?

A. Yes, sir; according to depth and size.

(Objection as to this as a custom of the defendant. )
170 (By Col. Pearre. We proffer to show that the custom of
other roads is similar.
(Objected overruled; it is admitted.)

Soe te yee ee ee

HARVEY W. C. WHITACRE. 87

Q. Mr. Barnette, please state whether those cinder pits had any
rails, and if so, what you know about it?

A. No, sir. The one at Sir Johns Run had a guard rail and the
Safety Committee ordered it taken down.

Q. How about Brunswick?

A. The one at Brunswick never did have any guards around it.

Q. Do you know how the cinder pit at Cumberland is lighted?

A. Yes, sir. Located at that particular yard there are four are
lights directly above the pits,

Q. Where are they located?

(Objection. )

(By Col. Pearre:) We proffer to show that the lights were there
and burning that night.

(Admitted with proffer. )

A. There are two at the east end, one at the center and one at the
west end—and four incandescent lights on the little house that works
the electric crane to light the ashes.

Q. Will you please state, Mr. Barnett, to what crew the front
brakeman belongs—the engin crew or the train crew?

A. The train crew.

Whereupon the following question was asked:

Q. Mr. Barnett, please state to the jury whether in your opinion
a tin cup is a necessary part of the equipment of an engine?

To which question the plaintiff objected, and the Court sustained
the said objection and refused to permit the question to be asked
and the testimony to be given in evidence, whereupon the
171 defendant excepted, and prays the Court to sign and seal this
its thirty-third bill of exception, which is accordingly done
this Ist 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 they were here
incorporated and the following evidence was given:

Whereupon the following question was asked :

Q. Mr. Barnette, please state to the jury—say drinking cup—
whether that is a necessary part of the equipment of an engine?

To which question the plaintiff objected, and the Court sustained
the said objection, and refused the question to be asked and the testi-
mony be given in evidence, whereupon the defendant excepted, and
prays the Court to sign and seal this its thirty-fourth bill of excep-
tions, which is accordingly done this 1st day of June, 1914.

ROBERT R. HENDERSON. a
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 following evidence was given:

88 THE BALTIMORE & OHIO RAILROAD COMPANY VS.

Whereupon the following question was asked:

Q. Mr. Barnette, do you know from your experience as a railroad:
man what constitutes the necessary equipment of an engine?

To which question the plaintiff objected, and the Court sustained
the said objection, and refused to permit the question to be
172 asked and the et to be given in evidence, whereupon
the defendant excepted, and prays the Court to sign and
seal this its thirty-fifth bill of exceptions, which is accordingly done
this 1st day of June, 1914.
ROBERT R. HENDERSON. [seat.]
M. L. KEEDY. [SERAL. }

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 following evidence was given, and the
witness further testified :

Cross-examination :
(By Mr. Wagaman) :
Q. Mr. Barnette, when did you last see this cinder pit?
A. On the evening of the 26th of February or the night.
Q. When did you first examine it for the purpose of being able
to testify in regard to it?
(Objection ; question changed. )

Q. Have you examined the cinder pit for the purpose of being
able to testify about it?
A. Yes, sir.
Q. When did you first do that?
A. That was two or three weeks ago—about a week before the trial
in Cumberland.
Q. That trial took place when in Cumberland?
A. I do not know exactly when.
Q. What month? Last month?
A. In February—last month—yes.
Q. Up to that time you had not given particular attention to it?
A. Outside of going by it every night. I came right down by it
every night.
173 Q. At the other trial were you asked this question, “How
often did you see it?”
A. No, sir. I think I said I walked by it on a number of occasions,
i ag to give particular notice to it until I walked down there

y.
Q. That was about a week before the trial?
A. Yes, sir.
Q. Did you say at the trial in Cumberland that you walked by it,
but not to take particular notice?
A. Not to take part

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0227%3A1. Public record. Not legal advice.