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

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1924

No. 113

BALTIMORE & OHIO RAILROAD COMPANY, PETITIONER,

v8.

FREDA GROEGER, ADMINISTRATRIX OF THE ESTATE

OF JOHN C. GROEGER, DECEASED

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT

OF APPEALS FOR THE SIXTH CIRCUIT

INDEX

Original Print

Record from the United States district court for northern Ohio,

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RE 46605040 R DORAN AERO AACCO (omitted in printing).. 1 1

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SUMMONS GHA MATEDET'S THCUPD . 60 iccccccacdecscsacecss 5 3

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OR Ge SU kb oad 0b aRR bohm O05 La wa eRe eS Ewe 8 5

RR I Ns ce kwh k obey hha A bee hosed ee aneae oan 9 5

Order overruling motion for new trial.................... 10 6

OPdier settling Dill OF CZCOPHONS. .6 cic ccc ccc accccevescs 10 6

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Temtimoay OF Wier J) TAMMB aac coke cccccececucce 11 z

PE OeENE (i IRS ck yes eA ace aed eet 13 9

Charles Edward McGann.............. 18 13

Jupp & DETWEILER (INc.), PRINTERS, WASHINGTON, D. C., Avaust 5, 1924

ii INDEX

Original Print

rr nr rn 23 17

Charles E. MeGann (recalled).......... 30 22

NENG <a cesta cae duencewe 31 23

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C. E. McGann (recalled) ............... 6 50

ECCT PO CCET TTT EPCOT OCT 69 53

Motion to set aside judgment and for a new trial and

ee ee oo ene kaka ne NKnee 81 62

CO nee We GO I, aon nc ccckccccccccaccccss 81 62

Defendant's Exhibit No. 2—Photograph showing cut of loco-

GE AEE Oy 83 62

Defendant’s Exhibit No. 3—Photograph of interior of en-

i MN can kbd ee keROb NK Oa MRASARR KERR SK OAeeRR A Sheena 8S 62

De‘fendant’s Exhibit No. 4—Photograph of door hole and

brick arch in locomotive furnace... ...........cccceenes 87

Dei*ndant’s Exhibit No. 6—Monthly locomotive inspection

I cee iad bauhee ana danse aceedatennds 8y 63

Defendant's Exhibits Nos. 7, 8, and 9—Locomotive inspec-

tion reports...... ET OTT ET TCC CTRTE TTC OCCU T COTE OTE 90 ie]

Defendant’s Exhibit No. 12—Annual locomotive inspection

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Bond on writ of error............ (omitted in printing)... 105 75

PT con iis da cceundekanduedcececaecc 107 75

Citation and service.............. (omitted in printing)... 109 76

Order withdrawing certain exhibits...................45. 111 76

Stipulation re certification of record..................... 111 77

Prescape Soe tramecrint of record. ... oo. .ccccncccccccccccss 112 77

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CN ee ae ce CARE RMROGBL ERR ERK RRO KMS 115 78

Supplemental record from United States district court for north-

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INDEX

Stipulation re transcript of record.............0ccc0c000-.

Order to file amended petition...................0000055.

Supplemental precipe for transcript of record............

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Proceedings in the United States circuit court of appeals for the

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119

124

131

132

ERBSRRERS

(fol. 1] IN UNITED STATES DISTRICT COURT

CapTrion—Onmitted

| fol. 2] Petition—Filed Feb, 15, 1921

Plaintiff says that she is the duly appointed, qualified and acting

administratrix of the estate of John (. Groeger, deceased, by virtue

of her appointment by the County Court of Marshall County, West

Virginia.

That defendant is now and was at all times hereinafter referred to

a railroad corporation organized and existing under the laws of some

State other than Ohio and maintaining various lines and divisions

of railroad, one of said lines extending from the State of West Vir-

ginia into the State of Ohio and into the City of Cleveland, Ohio;

that defendant also operates other lines of railroad, one of said lines

or divisions extending from Holloway, Ohio, to Brooklyn Junction,

West Virginia; that defendant at all times hereinafter referred to

Was a common carrier of freight and passengers and it and this plain-

tiff’s decedent were engaged in interstate commerce, and by reason

thereof this cause of action is governed and contrelled by the Fed-

eral Employers’ Liability Act of April 22, 1908, and its amendments.

For her cause of action against defendant, plaintiff says that on

September 3, 1920, and for some time prior thereto, her decedent,

John C. Groeger, was in the eniploy of defendant as locomotive en-

gineer; that on said date, in the performance of his duties, her de-

cedent was acting as engineer for defendant company on a freight

train running from Holloway, Ohio, to Brooklyn Junction, West

Virginia, said freight train hauling a number of empty cars from

the State of Ohio into the State of West Virginia; that on said date

her decedent had started with a train of ears from Holloway, Ohio,

and proceeded on said division to a point a short distance north of

Proctor, West Virginia, when suddenly and without any warning,

and without any knowledge on the part of her decedent of impend-

ing danger, the boiler of the engine exploded with great violence,

resulting in immediate death to plaintiff’s decedent.

Plaintiff says that the engine which her decedent was operating,

which she believes was known as No. 2541, was in a dangerous, un-

safe and insuflicient condition in that the crown sheets of said boiler

had been weakened by the previous overheating of same and that

said crown sheets leaked during the operation of said engine: that,

furthermore, the water glass indicator of said engine was in a defee-

tive and unsafe condition in that the same indicated water to the

[fol. 3] proper height in said boiler when said boiler was low and

had insufficient water.

Plaintiff says that her decedent at and prior to his death was

guilty of no negligence on his part in any way contributing thereto,

but that, on the contrary, his death was due wholly and solely to

1—113

and was the direct and proximate result of the negligence and care-

lessness of defendant in the following particulars, to wit:

First. Defendant was guilty of negligence and carelessness in

causing, permitting and allowing a dangerous, unsafe and insuffi-

cient condition to be and remain in its Ways, works and appliances,

in that the crown sheets of said boiler were weakened end defective

and unsafe by reason of being overheated prior to the grievances

herein complained of.

Second. Defendant was guilty of negligence and carelessness in

causing, permitting and allowing a dangerous, unsafe and insufti-

cient condition to be and remain in said engine in that the water

glass indicator placed on said engine for the protection of plaintiff's

decedent indicated that the boiler of said engine had sutlicient water

at times when said boiler lacked suflicient water.

Third. Defendant was guilty of negligence ai | carelessness in

failing and neglecting to furnish plaintiff's decedent a reasonably

safe place in which to perform his labor in that said engine and its

equipment were in a defective and unsafe condition as aforesaid.

Fourth. Defendant was guilty of negligence and carelessness in

failing and neglecting to make an adequate and suflicient inspection

of said engine and its equipment to the end that its dangerous and

unsafe condition would be disclosed.

Plaintiff says that her decedent, John C. Groeger, at and prior to

his death was thirty-five years of age, robust and strong, and earning

and capable of earning about Three Hund»ed Dollars ($300.00) per

month in his oceupation as locomotive engineer for defendant; that

he left surviving him and wholly dependent upon him for support

his widow, Freda Groeger, the administratrix herein, and two minor

children, Trene, of the age of ten years, and Gertrude, of the age of

seven years; that by reason of the negligence and carelessness of de-

fendant as aforesaid, the widow and children of plaintiff's decedent

Mave been deprived of their support, all to their damage in the sum

| fol. 4] of Twenty-five Thousand Dollars ($25,000.00).

Wherefore, plaintiff on Lehalf of the widow and chiklren of deced-

ent prays judgment against defendant in the sum of Twenty-five

Thousand Dollars ($25,000.00), with costs of this action.

E. C. Chapman, Attorney for Plaintitt.

Jurat showing the foregoing was duly sworn te by E. C. Chapman

omitted in printing.

In Unirep Strares Disprrer Court

PRECIPE FOR StUMMONS—Filed Feb. 15, 1921

Issue surmmons against the defendant, to the U. S. Marshal.

Northern District of Ohio, returnable according to law; endorse:

“Action for Money Only; amount claimed, Twenty-five Thousand

Dollars ($25,000.00) .°

Kk. C. Chapman, Attorney for Plaintiff.

[fol. 5] Ix Unitep States District Court

StUMMons anp Marsnat’s Rerurn—Filed Mar. 21, 1921

The President of the United States of America to the Marshal of the

Northern District of Ohio, Greeting:

You are hereby commanded to notify The Baltimore & Ohio Rail-

read Company that it has been sued by Freda Groeger, Administra-

trix of the estate of John ©. (rroeger, deceased, in the District Court

of the United States, within and for the Eastern Division of the

Northern District ef Ohio, and that unless it answers by the 19th

day of March, A.D. 1921, the petition of the said plaintiff against it

filed in the Clerk's office of said Court. at Cleveland, in said Division

and District, such petition will be taken as true. and judgment will

be rendered accordingly.

You will make due return of this summons on the 28th day of

February, A. D. 1921,

Witness, the Honorable John M. Killits, and the Honorable D. €.

Westenhaver, District Judges of the United States, this 15th day of

February, A.D. 1921, and in the 143th year of the Independence of

the United States of America.

B.C. Miller, Clerk, by C. A. Wilder, Deputy Clerk. (Seal.)

Returnable second Monday after issued. Answer day third Satur-

day after return day.

THE UNITED States or Au ERICA,

Northern District of Ohio. ss:

Received this writ at Cleveland. Ohio. February 16th, 1921, and

on the 17th day of February, 1921, at the same place [ served it on

the within named, The Baltimore & Ohio R. R. Company, by deliver-

ing to J. P. Leingang, Chief Clerk for the said The Baltimore &

[fol. 6] Ohio R. R. Company. Personally a true and certified copy

hereof. With all endorsements thereon. The President Chairman

of the Board of Directors or Trustees or other Chief Officers could

not be found in my District.

Chas. W. Lapp, U.S. Marshal. by D. J. Connor, Deputy.

Marshal's fees:

ns RCS Lan D Mah SOT Pe, ge lis $.12

it ah KEE LT TER CT OE Mt es 2.00

In Unitep States Disrrict Court

AnswEeR—Filed Apr. 2, 1921

Now comes the Baltimore and Ohio Railroad Company and for

answer herein admits its corporate organization and existence as in

the petition alleged; admits that plaintiff is the duly appointed,

qualified and acting administratrix of the estate of John C. roeger,

deceased ; admits that on or about the 3rd day of September, 1920,

plaintiff’s decedent was in its employ as an engineer and on said date.

while so employed, received certain injuries resulting in his death.

Defendant further admits that at the times referred to plaintiff's

decedent and defendant were engaged in interstate commerce and

that the respective rights and liabilities of the parties hereto are

governed and controlled by the Employers’ Liability Act of 1908

and amendments thereto.

Further answering defendant denies each and every allegation in

said petition contained other than herein expressly admitted to be

true.

[fol.7] Wherefore, having fully answered defendant asks to go

hence with its costs.

Tolles, Hogsett, Ginn & Morley, Attorneys for Defendant.

STATE OF OHIO,

Cuyahoga County, ss:

W. T. Kinder, being first duly sworn, says that the defendant, the

Baltimore and Ohio Railroad Company, is a corporation; that he is

one of the attorneys for the said defendant, duly authorized herein,

and that the statements and allegations contained in the foregoing

answer are true as he verily believes.

W. T. Kinder.

Sworn to before me and subscribed in my presence this 2nd

day of April, 1921. David C. Brown, Notary Public.

(Seal. )

In Untrep States District Court

OrpveR ContINuInc Cavuse—Filed April 24, 1922

This day came the parties by their attorneys and also came the

following named persons as jurors, to wit: Eli Adams, Ed. P. Ald-

ridge, H. H. Blakeslee Fred J. Bockley, James W. Butler, S. P.

Everhart, Phillip Fox, M. L. Hitchcock. V. C. Jeans, Arthur Lersch.

Richard Williams and E. E. Sperry, who were duly impaneled and

sworn according to law and the trial proceeded. ‘The jury having

heard the testimony in chief on behalf of plaintiff in part, but not

the conclusion thereof, and the hour of adjournment having arrived,

% ip ARS ecotey Fn a PORES GPE

.3)

the further trial of this case is continued until tomorrow morning

at 9:30 o’clock.

[ fol. 8] Ty Unirep States District Court

VERDICT AND JUDGMENT—Filed April 26, 1922

(Entered April 26, 1922, by D. ¢. Westenhaver, Judge)

This day again came the parties by their attorneys and also the

jury heretofore impaneled and sworn herein according to law and

the trial proceeded. And the said jury having heard all the testi-

mony adduced on behalf of the parties, the arguments of counsel

and the charge of the court, retired to their room in custody of a

sworn officer of this court to deliberate upon their verdict. And

now comes said jury into open court with their verdict in writing,

signed by their foreman, which verdict reads and is in the words and

figures following, to wit:

“The District Court of the United States. Northern District of

Ohio, Eastern Division. Freda Groeger, Administratrix of the Es-

tate of John C. Groeger, deceased, plaintiff, vs. The Baltimore &

Ohio Railroad Company, defendant. Verdict. No. 10927 Law,

We, the jury, on the issue joined, find for the plaintiff and do assess

her damages in the sum of Ten Thousand Five Hundred and Seventy-

six and no/100 Dollars ($10,576.00).

—_— IE. E. Sperry, Foreman.”

which said verdict was by the Clerk of the court read in the hearing

of said jury, when to which they gave their assent,

It is, therefore, considered and adjudged by the court that said

— recover of said defendant said sum of Ten Thousand Five

undred and Seventy-six and no/100 Dollars ($10,576.00) so as

aforesaid found due her by the jury, together with her costs herein

expended, taxed at $—, and that said defendant pay its costs.

[fol. 9] In Unitep States District Covert

Motion For New Trrar—Filed Apr. 26, 1922

Now comes the Baltimore and Ohio Railroad Company, defend-

ant herein, and after a verdict and within three days from he rendi-

tion of the same moves Tor a new trial in the above entitled eause

for any or all of the following reasons affecting materially the rights

of the defendant in this case:

1. Because the verdict of the jury is against the evidence in the

case and not supported by the evidence.

2. Because the verdict of the jury is against the weight of the

evidence.

3. Because the verdict of the jury is contrary to law.

4. Because the Court erred in overruling the motion of the de-

fendant to direct a verdict in its favor at the close of the evidence

offered by the plaintiff, to which ruling defendant excepted at the

time.

5. Because the Court erred in overrvling the motion of the defend-

ant to direct a verdict in its favor at the close of all the evidence,

to which ruling of the Court defendant excepted at the time.

6. Because the Court erred in the exclusion of evidence offered

by the defendant, to which rulings the defendant excepted at the

time.

7. Because the Court erred in admitting evidence offered by the

plaintiff, over the objection of the defendant, to which ruling de-

fendant excepted at the time.

8. Because the Court erred in its charge to the jury, to which

defendant excepted at the time.

. For other irregularities occurring and errors committed on the

trial, which prevented defendant from having a fair trial and to

which defendant excepted at the time.

Baltimore and Ohio Railroad Cmpany, by Tolles, Hogsett,

Ginn & Morley, Its Attorneys.

[fol. 10] In Unitrep States District Court

OrbER OVERRULING Motion For New Triat—Filed June 15, 1922

This day this cause came on to be heard on the motion of de-

fendant for a new trial and was submitted to the Court, on con-

sideration thereof the Court overruled said motion, to which ruling

of the Court defendant, by its attorneys, excepts.

It is further ordered by the Court that the defendant have fifty

(50) days in which to prepare, settle and file its bill of exceptions,

in accord with general rule No. 38.

Ix Unitep States District Court

OrpER ALLow1NnG Britt or Exceptions—Filed July 22, 1922

This day the bill of exceptions in this case was presented to the

Court, the same having been delivered to the Clerk by the except-

ied

‘

ing party, in accordance with Rule 38 of the General Rules of this

Court, and the adverse counsel havitig been notified of such delivery,

and no objections or suggestions thereto having been filed, the same

is allowed and signed and ordered to be filed in this case.

In Unitep States Districr Court

Britt oF Exceptions—Filed July 22, 1922

Be it Remembered that on the trial of the above éntitled cause,

in the District Court of the United States for the Northern District

of Ohio, Eastern Division, at the April, 1922, Term thereof, before

[fol. 11] Honorable D, C. Westenhaver, Judge of said Court, and

a jury duly empaneled and sworn, the following proceedings were

had:

Trial commenced April 24, 1922.

Appearances: For the plaintiff, E. C. Chapman, Esq.

For the défendant, W. T. Kinder, Esq., and James P. Wood,

Ksq., of Messrs. Tolles, Hogsett, Ginn & Morley.

Thereupon statements of the case were made to the jury by coun-

sel for the respective parties.

Thereupon the plaintiff called as a witness, Witzur J. Dixoy,

who, being first duly sworn, testified, as follows:

Direct examination by Mr. Chapman:

My name is Wilbur J. Dixon. I am thirty-five years of age.

My occupation is that of Assistant Master Mechanic at the shops of

the Baltimore & Ohio Railroad Company at Holloway. 1 have held

that position for two years and one month, which includes the time

the accident happened to John Groeger, near Proctor, West Vir-

ginia, with engine 2541.

In a general way I was familiar with engine 2541. It was not

equipped with a fusible plug. I did not see the boiler after the ex-

plosion. I have viewed boilers after explosions and am familiar

with stay bolts, intermediate stays, radial stays, and crown stays,

as used in a locomotive boiler.

The breaking of stay bolts in a boiler is caused by a certain

amount of vibration set up, due to the difference in expansion of

‘the fire box sheet and wrapper sheet. This has a tendency to cause

the bolts to break. Overheating of the crown sheet will not cause a

break in those bolts. The difference of expansion in heat hetween

the crown plate and outer plate causes a strain on those bolts to a

certain extent.

My deposition was taken at Flushing. As to the following ques-

tion and answer: “What happens when the crown stays are loosened,

under the circumstances when the water gets too low”

A. The crown stays cither have to fracture or pull out of the

hole.” —I don’t recall whether that question was answered, but if

it was that would have been my answer. Overheating of the crown

|fol. 12] sheet, in my experience, would not cause fracture of the

stay bolts or a breaking of the stay bolts.

I did not see the boiler after this explosion. This was a Con-

solidation type of locomotive. I couldn’t say what company it was

made by but it was a standard type of locomotive used in the freight

service.

>——— I never saw a fusible plug in a locomotive boiler.

I have worked for the Chicago, Burlington & Quincey, Erie Rail-

road and Illinois Central. I worked beween December, 1911, to

about February Ist, 1913, for the Erie Railroad at Meadville, Penn-

sylvania.

In my experience with locomotive boilers I have known of foam-

ing in the boiler of a locomotive, but not being engaged in road

service I have never witnessed the actual performance. Alkali in

the water will cause a foaming in the boiler, and will have a tend-

ency to make the water glass become dirty. If it become’ very

pronounced it might cause an excessive fluctuation of the reading

of the glass.

Cross-exumination by Mr. Kinder:

—~ A fusible plug was not used on the Baltimore & Ohio System, to

my knowledge, the Illinois Central or the Chicago, Burlington &

Quincey. During my connection with the Erie between 1911 and

1913, they were not used, according to my observation. I couldn't

say whether they are used by the New York Central Lines, or the

Pennsylvania. I am not familiar with the use of the fusible plug

on the Nickel Plate System.

This engine was a Consolidation type, No, 2541. That is a type

of the wheel arrangement of the engine as distinct from the boiler.

This was a road engine; a freight engine devoted to freight service.

I am assistant master mechanic at Holloway, one of the Balti-

more & Ohio terminals. I was acquainted with that engine in a

general way. That was an engine of standard and approved design

for freight service, genérally speaking. Tao not Prov who thie

manufacturer was.

Foaming of the water at times when the water becomes strongly

alkaline has some effect on the water level in the water glass. |

never noticed any such condition in the territory in which T am

located. When a boiler foams, the fluctuations are rather rapid,

and the water rises and falls sharply and rapidly in the glass, mo-

mentarily. Foaming does not cause a continued rise in the water

[fol. 13] glass but a momentary up and down change in level. If

a boiler should foam. the action of the water in the water glass would

be easily recognized by the engineer.

Redirect examination by Mr. Chapman :

In the practical operation of a boiler a deposit is formed in the

builer from the water by way of ascale. If the sight glass feed is not

given any attention, it possibly becomes clogged up. In my experi-

ence, I have observed the injectors become obstructed by the deposit

of scale in the boiler and also the gauge cocks.

Recross-examination by Mr. Kinder:

I am located at Holloway and my division runs down through

Bridgeport to Brooklyn Junction, West Virginia. The engines take

water at Holloway, and on the way to West Virginia they take water

first at Fairpoint, next at Maynard, next at Bridgeport, and, crossing

the river, they first yet water at Benwood. From there on I am not

familiar with the road. In a general way | was familiar with the

water conditions of the Baltimore & Ohio at those points prior to

September, 1920. The water at Holloway, Ohio, is what is con-

sidered a good water, free from alkali and acid. The water at Fair-

int has a tendency to be acid and also at Maynard. The water at

ridgeport is considered good water, similar to that at Holloway,

Ohio. The water at Benwood, West Virginia, is good, being a treated

water. I am not familiar with the situation from Benwood to Foster.

‘The number of times 4 man would take water between Holloway and

Foster Tower would vary under different conditions.

On and prior to the 3rd of September, 1921, we were having no

trouble from our division from alkaline water.

Cuar es R. Beruet, a witness called by plaintiff, being first duly

sworn, testified as follows:

Direct examination by Mr. Chapman:

My name is Charles R. Bethel. I live at Flushing, Ohio. My

business is that of railroadiiig for the Baltimore & Ohio.

|fol.14] I have worked for the Baltimore & Ohio Railroad since

April, 1913. At the present time I am a watchman. | knew John

(. Groeger in his life time and was on the train with him at the

time of the accident. Mr. Groeger and I took that train from Hollo-

way sometime in the A. M., I don’t just remember: it was along

about daybreak, I think. I was conductor on that train and Groeger

was the engineer. I compared time with Mr. Groeger before leaving

Holloway on that morning. He and I took that train through to

Bridgeport and from Bridgeport through to MeMechen, West Vir-

ginia.

Q. From MeMechen through to Meadsville. what, if anything,

unusual did you observe eLout the operation of that engine”

Mr. Kinder: I object to the form of the question.

2—113

The Court: I do not see anything objectionable as to form.

Overruled.

Mr. Kinder: Exception.

A. Well, slack running up into the train from the rear,

(Narrative continued:) That indicated to me that the engineer

had shut off. The train still kept moving. The engine did not stop

before we reached Moundsville, and at no point before reaching there

was there any repair made on that engine by me or the engineer.

My deposition was taken in this matter early in this year at Flush-

ing. At that time I stated there was a link hanger broken on that

engine. I didn't know anything of it until wegor to Chestnut Hill,

which is west of Moundsville—it is the opposite direction, east by

the right direction. Chestnut Hill is bevond Moundsville, east.

After we pulled into the siding, after we Stopped, I think he said the

link hanger had been broken. He said it could not be reversed. |

do not know what the link hanger is on an engine.

From that time on we made not a very good run down the river.

We kept going all the time.

From Moundsville to Foster Tower I was on that engine by in-

structions from our train dispatcher, which were to ride the head end

to Foster Tower to sign 31°s orders, which | did. During that time,

if I remember right, one injector was working. T don't think I can

tell from the sound when an injector is working. 1 don't know if

there is any difference in the sound when the injector is not working.

{fol.15] I don’t remember if one injector was working when we

arrived at Foster Tower. One injector was working between Chest-

nut Hill and Foster.

I was asked about that at Flushing early this year. As to the

question and answer: “‘Q. At the time you were on the engine at

Foster Tower, what is the fact as to whether or not either or both the

injectors were in operation? A. The right injector was working”’—

it was working; it had been working. I do .’t reeall if 1 answered,

“The right injector was working.” I don’t recall if one injector was

working at Foster Tower. I testified at Flushing that one injector

was working somewhere between those points, but I don’t remember

right at the tower when we stopped. 1 know it was working before we

reached Foster Tower.

I don’t remember between those points as to whether or not I

saw either the engineer or any of the crew operate the gauge cocks

on that engine. I saw the gauge cock operate on that engine some

place before we reached Foster Tower, but I don’t recall. It was

after we reached Moundsville I saw the gauge cock. Chestnut Hill

is beyond Moundsville. I got on the engine at Chestnut Hill. I

wasn’t on it before that. I continued on it until we got to Foster

Tower, under instructions to sign for instructions at Foster Tower.

It is possibly five or six miles from Chestnut Hill to Foster Tower;

and between those two points I saw the gauge cocks turned by some

member of the crew. When the gauge cock was turned it had blue

steam coming out of it. I don’t remember which gauge cock was

tried. I didn't notice whether the top one, second one, or bottom one.

The purpose of those gauge cocks on an engine is to show the man

the water in the boiler, In my duty as conductor of that train, to

a certain extent I am to assist the engineer in the operation of it over

the road. When blue steam came from the gauge cock it indicated

to me there wasn’t any water in the boiler,

Q. Did you say anything to the engineer or call his attention to

that?

Mr. Kinder: I object.

The Court: Overruled.

Mr. Kinder: Exception.

The Court: Did you or did you not call his attention to what you

observed in the gauge cock ?

The Witness: I don't recall. I don’t remember of saying anything

at all.

[fol. 16] (Narrative continued:) On my trip in that engine I ob-

served the water glass gauge, The water boiled, or something—

went up in it and then down. I don’t know how far up the water

went in the gauge. It went down out of sight. I just saw it do that

the one time between Chestnut Hill and Foster. ] don’t think T rede

the engine from Foster Tower on to Wells Pit. After T saw that sight

glass going up and down, I don't remember that I observed it again

before leaving the engine.

(Signed statement handed witness.) That is my name. [ don't

know whether I wrote that or not. It looks like my signature. |

recall being interviewed about this matter shortly after this accident

occurred. That is my initial and name; I don’t know whether |

wrote it or not. I guess it is my signature. | recognize that as a

statement I made to somebody at one time. I don’t remember when

I got off the engine whether one injector was working or not. I

don’t remember of making the statement, “I rode the engine from

Chestnut Hill to either Foster Tower or Wells Pit. All the way from

Moundsville to where it blew up he had had trouble with the engine

all the way, kind of working on one side all the way. When I got

off the engine IT am sure one injector was working.” I couldn't

say whether the injector was working or not. It was on before we

reached Foster. It was growling like it was working. It was set to

work at some time between Chestnut Hill and Foster, before I got off.

That is the only observation T made of the injector.

Nothing was done with the engine at Foster Tower. The tank was

filled with water there. I don't remember if ] rode on the engine

after Foster Tower or went back to my caboose. When the explosion

occurred T was in the caboose, The explosion occurred near Proctor,

West Virginia, possibly two miles and a half or three from Foster

Tower. [would not know how long that was after I left the engine

for I don't remember where | left the engine, whether I rode between

Foster Tower and Wells Pit or not. If 1 rede up to Wells Pit it

couldn't have been over twenty to thirty minutes. If T left it at

Foster, it would possibly be close to an hour.

After the explosion I went to the head end. I saw the boiler laying

down the track and a man running through the field and one laying

in the field. John Groeger was laving between the track and the

river. He was dead. Fireman Marshall was laying eight car lengths

behind the engine, along the train. He was not dead. I saw the

[ fol. 17] head brakeman, who was standing, or running, through the

field. The boiler of the engine was laying on the left hand side of

the track, about close to four hundred feet ahead of the train, upside

down and into the ground. The rest of the locomotive was still con-

nected up to the train and the boiler as I say, was some 350 or 400

feet away.

Cross-examination by Mr. Kinder:

I do not know anything about the link hanger myself. The

engineer said it is an arrangement on an engine in regard to the

reversing of the engine. I do not know enough about the engine

to know it has nothing to do with the boiler. As far as I know,

it is part of the running gear of the engine. I do not think it has

any connection with the boiler.

I saw this blue steam come out of the gauge cocks between Chestnut

Hill and Foster. I just looked at the water in the water glass and

saw it go down apparently to the bottom of the water glass. It was

between those points the gauge cock showed blue steam.

(In response to questions by the Court :)

The water glass, feed gauge and gauge cocks I saw turned were on

the engineer's side of the engine. When the water feed gauge and

gauge cock behaved as I described, the engineer was sitting in his po-

sition. Fireman Marshal was the one that turned the gauge cock.

He was over in the engineer's box at the time he did that; and that

was before we got to Foster Tower. When we got to Foster Tower,

after I made these observations, water was taken by the engine.

Redirect examination by Mr. Chapman:

I don’t remember if in my experience of railroading I had ever

seen a water glass gauge come up at the top and then go down to

the bottom as I have described that did. I don’t recall of ever see-

ing any demonstration like that in a water glass on an engine in

my experience on an engine.

(In response to questions by the Court :)

I never worked as fireman or engineer. I was always brakeman

or conductor. What I know about an engine is what I observed

in reporting to the engine in connection with my duties.

(fol. 18] CHaARLEs Epwarp McGann, a witness called by plainti

being first duly sworn, testified as follows: ner

Direct examination by Mr. Chapman:

My name is Charles Edward McGann. I live at Pittsburgh, Pa.

I am Master Mechanic, Baltimore & Ohio Railroad, Pittsburgh

Division, and have been such since August Ist, 1919.

I was Master Mechanic on the day of the accident to Mr. John

Groeger on engine 2541. When I got notice of the accident I was

in front of the Y. M. C. A. Building at Benwood. I went to the

scene of the accident immediately after receiving notice and made an

inspection of the boiler and engine. I was notified about twelve-ten

or twelve-fifteen p. m., and arrived at the scene of the accident, as

near as I can judge, about 2:40 p.m. I made an inspection of the

fire-box, but we are prevented from making further inspection, ac-

cording to the Interstate Commerce Rules, so we made observations

as to the fire-box and condition of the boiler.

We found six intermediate stays and one stay bolt at the forward

part of the crown sheet, broken. There were two adjacent broken

bolts on the left side, if I remember correctly. | havent my records

with me. There were three broken stays on the left side and three

on the right side, intermediate stays, and the three on the right

side were in a radius of, I would sav, sixteen inches. and the two

adjacent, on the left side, were within eight inches, The third one

was within twelve inches of the other two—one was skipped and

another bolt broken. The broken crown bolt was in the fifth row

from the flue sheet. None of those broken bolts had tell-tale holes

in them.

A tell-tale hole is drilled in a stay bolt which is shorter than eight

inches, and drilled in to the depth of one and one quarter inches,

extending from the outside wrapper sheet, inside, into the water

space, so that when a bolt breaks on the inside between the fire-box

sheet and the outside wrapper sheet, the steam or water will eseape

through this small hole and will show a man where his broken

bolts are. The law requires them to he drilled in all bolts eight

inches and under in length. These bolts that “were broken were

radials and the Upper portion of the crown sheet that does not re-

quire tell-tale holes in them,

|fol. 19] There was not a fusible plug in the crown sheet of

that locomotive. From my @xamination of that fire-box and those

broken bolts I have described, I would say those bolts were broken

rior to the explosion. I am able to tell that by the accumulation

of scale on the end of them. PPT ee eras erg iat WHS

Q. What is the fact, Mr. MeGann, as Master Mechanie of that

division, as to whether you would have allowed the operation of that

boiler over that trip that day if you had known of those broken stay

bolts in the boiler?

Mr. Kinder: I object.

GRRE ELE:

The Court: There may be some objection to the form; I don’t

see any objection to the substance.

Mr. Kinder: My objection is not so much to the form. Unless

there can be any connection between the bolts we are talking about

and this explosion, we are entering into a field of speculation and

not a matter which is competent.

The Court: We cannot get to all of that at once. I do not know

about that.

Mr. Kinder: I should like to have the other question precede

that one, so that we shall not be speculating about the effect of these

broken bolts.

The Court: That would require the Court, in order to make a

ruling, to determine the facts, or an inference from facts; and I do

not think the Court is the proper person to do that. Your objection

will be overruled; but I think the proper form of the question

would be whether or not those defective bolts were such as, in care-

ful railroading inspection, would require repair before further use

of the engine.

Mr. Kinder: Exception.

Q. What is vour answer to that?

A. If the condition of these bolts would have been known, they

would have been removed and new ones applied.

Q. My question was, would you have allowed this engine to make

that run from Holloway to Brooklyn Junction on that day if you

had known those bolts were broken within that boiler?

Mr. Kinder: Same objection.

The Court: Overruled.

Mr. Kinder: Exception.

A. No, sir.

[fol. 20] Q. Your answer is you would not?

A. Yes.

(Narrative continued:) In the operation of the boiler there is

a deposit within the boiler of scale or sediment from the water.

That obstructs, at times, both the gauge cocks and the water glass

on the boiler. I might add that they are required to remove them

monthly and clean the same. If allowed to continue they will ac-

cumulate with dirt and seale and obstruct the proper reading. In

my experience as Master Mechanic I have seen that condition arise

where those things became obstructed.

_~_ I have seen a fusible plug in locomotives. Its purpose is to warn

the engineer in case of his negligence in allowing the water to he-

come low in the boiler: it tells him he has lost his water. If the

engineer in charge of the boiler on line or road finds water getting

low, getting helow a safe point, he draws the fire. A fusible plug

is a brass plug with a square on the bottom of it and drilled out,

either five or six small holes. or one large hole, and filled with babbit

metal or pewter, or some soft substance. The crown sheet is tapped

out at the forward part, the highest part of the crown sheet, and

—w OM.

this plug screwed in, extending above the sheet about one half or

three quarters of an inch, so that when the water gets low in the

boiler, the intense heat will allow this metal to become softened and

run out in the lower part of the fire-box, and some water escapes and

drowns out his fire, and makes an awful noise in the fire-box, and

then he knows his water is low and he takes the precaution to draw

the fire to save further damage. It acts as a supplemental safety

Nalve, but they are considered unsafe, due to the fact that this ac-

cumulafion of scale gets on this metal plug and while the water is

still over this plug, or is on top of the soft metal, it allows it to come

out, run out in the fire-box, and_ oftentimes causes serious injury

and serious burns. I never knew, in my experience, the blowing

out of a fusible plug to blow up the boiler. It is not as serious when

the Tusibte-pttg nels out and allows the escape of the steam, as

when the boiler blows up. The fusible plug is placed from half to

three-quarters of an inch above the t of the crown sheet. When

the water gets gnest part of the fusible phig and before

it reaches the crown sheet, it exposes the top of the fusible plug with

[fol. 21] the soft metal in it, and the soft and fusible metal will

elt out before the bolts of the crown sheet.

In the operation of a locomotive engine of the type 2541 was, and

over this point of the division, say from Moundsville to Wells Pit

and Proctor, one injector will supply the boiler if the water regulat-

ing valve is properly adjusted. With everything working normal,

one injector will keep the water in that boiler above the crown

sheet,

Cross-examination by Mr. Kinder:

An injector can be likened to a water faucet: it depends on how

far it is turned on as to how much water is going into vour boiler,

The engineer makes that adjustment. He adjusts his water valve

to the circumstances and condition. If he uses a heavy throttle

and going along, he opens his water valve and keeps it well supplied,

He does this by looking at the gauge cocks and if he secs his water

is going down too fast, he lets it open a little further. These injectors

are made to supply 4,500 gallons per hour, and if properly applied

could fill the boiler in a short space with one injector. By being

“properly applied” I mean if the engineer understands the manipu-

lation of the engine, he can fill the boiler.

When the term “injector” is being used, it is important to know

how far it is on.

Fusible plugs are not in use on the Baltimore & Ohio Railroad

System. When T was serving my apprenticeship, in 1902, they had

them on the Cincinnati & Southern Railroad, I am not familiar

with conditions obtaining on the New York Central or the Penn-

sylvania in regard to fusible plugs. I am not familiar with whether

they are in general use on standard railroads only from what T hear

from other master mechanics, that they are not used on other roads.

T don’t know personally: I never worked for very manv railroads.

I have made inquiry and investigation in the railroad work to find

uate Pies

out their place in the equipment and operation of engines, and the

result is I find they have not sone into general use,

The objection to fusible plugs is they accumulate scale on top of

the plug and this allows the metal to come out and causes the engine

to fail and it is necessary to give up service on line or road. It

oftentimes results in injuries to the crews; maybe the fireman is

[fol. 22] down putting in a fire, and if he should be firing there

just at the time the metal comes out of the plug, that pressure in

the boiler will blow the fire and hot cinders out of the fire-door,

and it has proven very detrimental. The water and steam, when it

comes out through the plug, comes down into the fire-box at a pres-

sure of 175 to 200 pounds per square inch, throwing the fire and

hot coals out of the fire-door. It has been determined to be unsafe,

at least on the Baltimore & Ohio, | would say back as far as 1902 or

1903. Prior to Mat time Tthink they were used; that wasbefore

my time, before 1906.

I made an examination of the crown sheet and the various parts

of the boiler after the explosion and after the boiler was available

after the Interstate Commerce people got through inspecting it. [

examined the crown sheet with reference to locating the tear made

in the crown sheet by the explosion and to determine the area

through which the tear went. In connection with that examination,

the relative position of these broken stay bolts was plain to me.

Q. State whether or not, in view of your examination, the appear-

ance of the tear and the condition of the stay bolts over which the

tear occurred and the location of the broken stay bolts, that is, five

or six broken stay bolts that you speak about——whether or not in

vour judgment as an expert on these matters these broken stay

bolts would have been a contributing factor to this boiler explosion?

A. These stay bolts had no contributing cause toward the failure

whatever. ~ a oud

~ Tn other words, it is not true, Mr. MeGann, that this boiler

explosion, irom your examination of the appearance of the crown

sheet and the location of the boiler, this boiler would have exploded

if all of those five or six broken stay bolts you found would have

heen intact and in proper condition ?

A. Yes, sir, it would have occurred.

Redirect examination by Mr. Chapman:

When you wash the boiler, you renew the fusible plug, put a

new plug in. Seale would form about the same on the fusible plug

and no deeper than it would on all the rest of the boiler. The neod

for washing that plug would be just the same as the rest of the

boiler.

I never saw those pings drawn up to a point on the inside of the

crown sheet to prevent the formation of scale from the water.

[fol. 23] Drawine that soft metal to a point would tend to prevent

the formation of the deposit on that soft plug.

JosErH A. Boypen, a witness called by plaintiff, being first duly

sworn, testified as follows:

Direct examination by Mr. Chapman:

My name is Joseph A. Boyden. I am Production Manager with

the Van Dorn Iron Works, Cleveland. I am 45 years of age and

have been connected with locomotive engines for 24 years.

My experienc@-with Tocomotive engines has be om apprentice

boy up toa master mechanic, including all the different foremanships,

round-house foreman, company shops foreman, general foreman, and

inspector; and one year’s experience as inspector for Baldwin Loco-

motive Works for the railroad. 1 worked seyera] years as master

mechanie on the Erie Railroad. I am familiar With the various

locomotive engines in general use,

In railroad talk, a fusible plug is known as a soft plug. It is put

into the highest point of the crown sheet, that is, the top of the

inside of the fire-box. There is a soft metal applied to this brass

plug so that if the Water gets low this metal will melt. It is used

ws an alarm or a safetv device to the engineer te know that his

water is low in his boiler. When the fusible plug operates, it re-

lieves the pressure between the fire-box sheet and the outside wrapper

sheet, so that a boiler cannot blow up.

I saw those fusible plugs in operation, directly, seven years that

I was master mechanic. I used them on 178 engines on the

Erie Railroad, during the period from 1912 to 1919. During that

time I never had a boiler blow up, due to the safety plug. We have

had plugs give o ie railroad due to poor workmanship in the

apps oP The hl meer the plugs. T have never rééalled of an

engineer or fireman being injured due to this. I have heard there was

a case, but IT have never seen it. ae

I was a year at the plant of the Baldwin Locomotive Company.

Q. Now, in your experience at that plant, and your general ex-

perience, what is the fact as to whether or not those plugs were

[fol. 24] in general use and standard equipment on locomotives”

Mr. Kinder: I object to that.

The Court: That is a part of the ultimate way of proving it; he

may answer.

Mr. Kinder: Exception.

A. Well, I couldn't specify the different railroads that were using

plugs, outside of the-Ierie. ee ee ee

(Narrative continued:) Fusible plugs were put in the locomotives

manufactured at the Baldwin plant while I was there that I inspected.

I was particularly inspecting Erie engines. T wouldn't say if other

engines Were manufactured Tor other Companies by that locomotive

company while I was there. There was some engines they were in-

stalled in by the manufacturer but I would hesitate to sav what rail-

road, or what percentage they were of the total output of the engines

made.

3—113

Q. In your opinion, Mr. Boyden, what can you say as to the

efficiency of those plugs as a preventative of a boiler explosion on a

locomotive engine?

Mr. Kinder: I object.

The Court: Overruled.

Mr. Kinder: Exception.

A. Well, as I have stated, I have never in my experience as a

railroader on any of the divisions I have handled, ever had anybody

injured. We have had low water cases but the only thing that

would happen, if the engine would die on the main track, we would

have to go out and pull the engine and train in with another engine.

The Court: That is, when the plug blew out?

The Witness: When the soft metal gave way due to low water.

Q. In your experience at any time, did you have the coming out

of a soft plug due to low water, from any cause, that caused any

damage to the engine?

Mr. Kinder: I object; that is not the test.

The Court: Overruled.

Mr. Kinder: Exception.

A. No, sir.

(Narrative continued:) The falling and rising of water in the

sight glass feed tube to practically the extent of the water glass is

[ fol. 25] due to foaming in the boiler, which may be due from alkali

or soda that would get into your boiler. A low stage of water in the

boiler would not cause it to rise and fall. It would have to be a

matter of foaming from one of the causes T mentioned or something

else.

When the water in the boiler is foaming, if the engineer happens

to be trying his gauge cocks when the water is dropping it will show

him no water; if he happens to be trying the gauge cocks when the

water is rising it will show he has got water. It affects the apparent

height as indicated in the water glass; it raises and lowers it.

I am familiar with the different ‘types of bolts—crown bolts, radial

stays, and stay bolts—as used in a locomotive boiler between the crown

sheet and the outside shell.

Assuming there were three broken intermediate bolts in an eight-

inch cirele on one side, and three on the other in an eighteen-inch

circle, two of them adjacent, and one crown bolt was broken,—it is

bound to weaken the boiler at that point. The fact two of those

broken bolts were adjacent, distributes the load over to the next bolts,

which have to carry the loads of the broken ones.

Gauge cocks can become obstructed by scale formation in the

boilers. If you wash your boiler often enough that can be prevented.

I wouldn’t say the scale forms in the gauge cock pipes the same as

the rest of the boiler, because in opening your gauge cocks the

pressure is so great you constantly blow them out. When they would

become obstructed you couldn't use the gauge cocks, nothing would

come out; it would be simply plugging it up.

In the practical operation of locomotives a breaking of the radial

stays, intermediate stays, or crown stays in a boiler would be caused

by the vibration of your locomotive. Tt may start from mud burns;

for instance, in washing your locomotives and the mud isn’t all

washed out, vou are liable to get what we call in railroading a “mud

burn.” In other words, if the mud gets on the sheet and will form

around the threads of your crown bolts, it will bake it on and you

will finally get that off and get cold water on the thing and they will

crystallize and break. The overheating of a crown sheet has a tend-

ency to draw or pull or strip threads of the bolts and crack them.

[fol. 25] The bolts are of a softer type of metal than the crown sheet

itself of the boiler, and the stay holis are made of soft iron especially

to take care of the expansion and contraction between hot and cold.

Broken radial and intermediate bolts in a boiler may be detected

by hammer test. When a boiler comes in for boiler wash or in-

spection, there is a man known in the plant as a boiler inspector who

takes a hammer and goes over every one of those bolts and tests them.

He tests that by his ear, the sound, whether that is a defective bolt or

whether it is a solid bolt.

On the railroad T was on, to prevent the formation of scale on the

fusible plugs used in the locomotives, we filled these plugs with a

soft metal and then made them in a erown shape, put them in a lathe

and crowned them so that eve rvthing would slide, the seale would

slid- off from them. That prevented the formation of scale within

the boiler on that plug,

Cross-examination by Mr. Kinder:

I have heen with the Van Dorn Iron Works two years and a half.

I left the Erie in the early part of 1919: I have been out a little

over three years.

Without the plug, the engineer has three gauge cocks and his

water glass to determine the height of the water. The gauge cocks

are located in different altitudes within easy reach of the engineer,

and by turning the lower gauge cock he can determine that he has

got water as high as that gauge cock, and the second and third gauge

cocks the same way. It is about eleven inches from the top of the

crown sheet to the top reading of the top gauge cock. In other words,

in railroad parlance, if a man has what is called “three gauges of

water” he has eleven inches of water over hi: erown sheet. That

would be the back part of the crown sheet, as the gauge cocks are on

the back of your fire-box. There is some slope to the ordinary crown

sheet but you take your reading from your highest point. ‘Three

gauges of water” indicates eleven inches over the highest point of

fhe crown sheet approximately. In some eases the crown sheot slopes

hack towards the fire-door; some are straight. Where the engine is

going down hill or around a curve the water would not wash off

the crown sheet. aterm

I am not familiar with the practice as to fusible plug on the New

York Central, Pennsylvania. Baltimore & Ohio, or New York,

[fol. 27] Chicago & St. Louis Railroads. My experience is limited

to the Erie Railroad engines and the Erie output of the Baldwin

Locomotive Company. All the engines on the Erie were e uipped

with them—a blanket order to that effect—something like two

thousand engines. During my term of service they were adopted.

I could not tell as to whether there has been any change in that

regulation with regard to the Erie since I left it. At the present time

my knowledge as to whether the Erie uses soft plugs or not is no

more than hearsay ; I haven’t seen them.

The water glass is not a round glass cylinder any more; it is flat,

more for protection and safety. The height of the water stands in

the glass. With an injector on, if your engine is standing still, you

will see the water in the water glass go up very quickly. If you are

working your locomotive and the engineer knows his engine and

knows its condition, you won't see the water rising and falling in the

water glass very much; it is bound to vary. Even when you are run-

ning it is bound to vary. If I was on a level piece of ground and the

water stood absolutely still in the water glass at a certain height, I

would think I was a pretty good engineer. If you would plug up

— water glass at the bottom you would then close off the top and

ottom of your water and the water is stationary. If you would close

off the top part of the glass you would not have any reading on the

water glass, your circulation stops. 1 would say the water would not

disappear unless you open what is known as the delivery cock under-

neath to drain it out. If the pipe leading up to the water glass was

plugged, your water would remain absolutely stationary in the water

gluss; no circulation. If you have an injector on, if your track is

rough it is bound to change your reading a little in the water glass.

If you are working the engine and shut it off, the water will go down

in the water glass. If the engine were standing still and one or two

injectors were turned on, the shifting of the water in the water glass

is more noticeabie; you are not using any steain and water in your

boiler. It is the same way as in a house water boiler; when you go

down and turn a cock it goes up and down until the water gets into

the boiler, and after it is turned off it seeks its level. I wouldn't say

the pressure coming up in the hot water system causes the water to

rise and fall in the water glass any more than your water coming in

varies it. In a serious case it races, goes up and down very. very fast.

[fol. 28] As a rule, when yeur locomotive is foaming, it is a case

where the only way you can stop it is to stop along the road and open

up, blow off, which causes a change of water in the boiler. To an

experienced engineer the foaming of water in the boiler, affecting the

water glass, is promptly evident, and he should know what is going

on.

If you had a gauge cock plugged up with seale, you would turn it

on and wouldn’t get any water. He could then go to the second

gauge cock and see if he had water, and if he got the same result he

would go to the third. Naturally he would have it there if he has

water left. If you have the gauge cocks plugged up with seale you

would not show water on the gauge cocks. The engineer that has had

years of experience on a locomotive can tell very quickly whether the

gauge cock is plugged up; if it wasn’t, he would have blue steam, if

he had low water. Blue steam does not necessarily mean low water;

it means it is falling down, where you have the gauge cock. As far

as your gauge cock is concerned, the idea is it is lower than it ought to

be; there is no water to that particular gauge cock.

I don’t know anything about Baltimore & Ohio freight engines of

the 2,500 type. The number of stay bolts changes with the type of

boiler. Fifteen hundred would not occur to me as being excessive for

the number of radial, stay and intermediate bolts in a freight engine.

The injectors are the means of getting water from the tender into

the boiler of the engine. The fact an engineer stopped and took

water and filled up his tank does not mean he has got water in the

boiler, unless he has got an injector working. 1 never saw this en-

gine after the accident.

If I examined a crown sheet after an explosion and found what is

known in railroad parlance as a “peacock blue” mark around a cer-

tain area of that crown sheet, from my experience that would indi-

cate low water. The only way an explosion occurs is by the entrance

of comparatively cold water onto an overheated erown sheet: and. due

to that, there is imprinted into the crown sheet at the moment of ex-

plosion this peacock blue line. That is imprinted at the height of

the water at the time the boiler blew up.

The Court: Do I understand you — say that the onty known and

accepted cause of boiler explosions is low water so that the crown

sheet could become exposed?

[fol.29] The Witness: Where it shows blue, that is an indiea-

tion of low water; and then your cause of the explosion is putting

the water up on the crown sheet, the exposed crown sheet,

The Court: When the water gets low and uncovers the top of the

crown sheet, the fire then superheats the crown sheet, the exposed

part of it?

The Witness: Yes.

The Court: And when cold water is injected into the boiler,

coming in contact with the superheated crown sheet, it immediately

gives off a volume of steam?

The Witness: There is an explosion so great something has got

to give.

(Narrative continued:) (Witness is shown model section of

boiler.) This outside sheet is known as a wrapper sheet and the

inside sheet, which is three-eighths steel, is known as firebox sheet

and might be known as the side sheet. It is the firebox sheet, crown

sheet and side sheet combined. The inner sheet is the section that

goes over the firebox, and these bolts are known as radial or inter-

mediate. The lower ones are stay bolts. The holes in the lower

bolts are in the position of tell-tale holes: supposed to be in the

center of the bolt, I think it is an ineh and a quarter deep. The

holt is drilled in to about the end of the thread. so that when the

bolts break the water can go out of the sides and indieate a broken

bolt. The tell-tale holes are put in bolts up to eight inches in length

and under; in bolts eight inches and over they are not required by

any regulations of the company. When I say fifteen hundred bolts

more or less, these are the kind of bolts 1 mean. The crown sheet

reaches over and down, and the other is known as the outside sheet.

These are the two sheets that are bolted together by these stay bolts,

radial and intermediate. The water circulates tween the two

sheets, and that is what is called the water space, between the two.

The wrapper sheet is the outside circumference to the extent of the

crown sheet, and runs from the door sheet to the flue sheet. The

flue sheet is a sheet in front of the crown sheet and into which the

flues run. The fire comes out from the firebox up against this

crown sheet and heats the water on the crown sheet an the sides,

within the compartment made by the wrapper sheet and the crown

sheet when bolted together. The flue sheet is from the barrel of your

boiler to your firebox sheet. There are a large number of pipes, flues,

[fol. 30] running from the flue sheet along towards the smokestack,

varying in length to the size of your engine, and around them is

water, and the water is heated by the fire that is pulled up through

the flues and out the smoke stack. The heating surfaces in the

engine are the part over the crown sheet, the part over the flues

that run up toward the front of the engine, and your side sheets.

The most efficient point for heating water is over the crown sheet.

Railroad people are governed by a law and the Interstate Com-

merce Commission as to broken stay bolts. They don’t allow two

broken bolts adjacent to each other to be used. Leaving out the

qualification “to be adjacent” they allow five broken stay bolts.

I don't believe there is much difference in the pull or pressure on

the side or radial stays, less reason for a strain on the radial side of

it. in normal conditions, than there is on the top of the crown sheet

or along the side. The curve of the crown sheet and the wrapper

sheet, gives additional strength to the sheet, as a matter of mechanics.

I would say that the breaking of two of the intermediate bolts would

not be followed by a less disastrous situation than the breaking of

other bolts. I would not think that the breaking of two bolts there

would be less weakening to the crown sheet and wra per sheet and

the boiler in general, than the breaking of the crown olts on top.

Q. Now, supposing after a tear or boiler explosion, the tear in the

crown sheet was loeated by thosewho inspected the engine after the ex-

plosion, and suppose that that tear was not adjacent, nor did it come

inward near the bolt or two bolts that were broken, but that the tear

pulled out good bolts, puiled off the good bolts, you would have some

difficulty, would you not, in coming to the conclusion that these

other broken bolts were a contributing factor to that boiler failure?

A. T would.

Cartes E. McGann, being recalled by plaintiff, further testified

as follows:

Direct examination by Mr. Chapman:

In my examination of the crown sheet of that boiler, after the ex-

plosion, there was an electric weld at a point in that firebox. (After

Withe:s reers to papers.) The weld was on the three-fourth flue

[fol. 31] sheet, welded to the wrapper sheet, also door collar welded

in at door sheet. As to its location with reference to the weld,—the

crown sheet pulled off entirely from the side, tearing down both in-

side sheets, diagonally to the mud ring, and blowing over the back

flue sheet at the top and pulling out fifteen bolts, and cracking the

electric weld where the crown sheet was welded to the three-fourth

sheet flue. After the ex alosion, when the sheet came down it tore

out from the electric weld. It tore the electric weld when it fell, the

force of it coming down tore open the electric weld. The crown sheet

was forced down by the pressure of the steam in the boiler on the over-

heated crown sheet. The occasion for making the electric weld was

putting in a three-quarters flue sheet, the appheation of a new three-

quarters flue.

Cross-examination by Mr. Kinder:

The falling of the crown sheet was the cause of the erack in the

electric weld. There was no evidence of any failure of the electric

weld as a contributing cause of the explosion.

The electric welding in of sheets has proven very successful and

just as strong as the ordinary sheet.

There was no evidence, from my eXamination, that the failure of

the electric weld preceded the explosion.

Deposition of Patrick H. Bursee, taken at MeMechen, West Vir-

ginia, January 4th, 1922, was thereupon read in evidence as follows:

Parrick H. Burser, a witness called by plaintiff, being first duly

sworn, testified as follows:

Direct examination by Mr. Chapman :

My name is Patrick H. Bursee. | live at S85 33rd Street. Wheeling,

I am twenty-six years old and in the garage business.

I worked for the Baltimore & Ohio Railroad Company from about

July until the Ist of October, 1920. I knew John (ireeger in his

lifetime. While I was working for the B. & O. 1 was working on the

fourth division, as brakeman.

I recall the accident to John CGroeger. On that day I saw him at

Foster Tower. 1 was acting as brakeman on run No. 100 coming out

of Clarksburg to Benwood. The engine was taking water at Foster

Tower, and Groeger was on the engine. He got to Foster Tower

[fol. 32] before our train did and his train was taking water when

our train got there.

I pot up on Groeger's engine. At that time there was no one else

on the engine with him. th the fireman and brakeman were on

top of the tank taking water. I also saw the conductor around there.

When I got on board Groeger’s engine I had a conversation with

him about the engine. I observed the Water glass, firebox, gauge

cocks and noticed the steam pressure. The steam pressure was

around about 160.

Q. What, if anything, unusual did you observe about the water

vlass?

Mr. Kinder: I object.

The Court: Overruled.

Mr. Kinder: Exception,

A. The water glass kept working up and down all the time.

(Narrative continued:) It would go pretty near to the top and drop

down practically to the bottom. It was making that movement just

at ordinary—just like that—-not fast, not slow.

While I was there I saw the gauge cocks of that engine operated.

Groeger operated them. Tle operated all three of them. The bot-

tom one and the middle one was wet and the top one was dry. I ob-

served there was steam coming out of the firebox. There was enough

steam coming out to obstruct the view, going up the boiler.

When I was on the engine both injectors were working. I heard

them working. If they had not been working steam would not have

been coming out of the bottom, or they would kick off. Both of

these injectors were working.

While on the engine | saw the firebox door open and I noticed it

was leaking up around the front, and the side—the fire was dead.

You could hear the sizzing of the water hitting on the fire. When I

opened the door steam came out of the firebox. With the door open

there was a gush came.

[ should judge | was on the engine about three to five minutes,

sumething like that. They pulled away after | got off. Their rear

end was on the main track and the engine right on the siding taking

water and they had to pull up before we could get water. After their

train pulled away we took water. Our train was No, 100 and

{fol. 33] Greogers 2541. We had a meet order to meet them at

Foster. Our train was a freight train and | was front brakeman.

After taking water we continued on to Benwood.

We came to Benwood, I went up to ask for a track and I was

asked if I saw 2541 and [ says, yes, | met them at Foster and they

said she blew up. I went back to the scene of the accident on the

wreck train. There was a number of fellows on it—train master

MeGann, master mechanic, wrecking crew, Conductor Hard. |

wanted to go down and see it. As | was on there, Mr. Malone asked

me if I could act as brakeman. They were short of brakemen. I

said I was under the sixteen hour law, but I would work for them

if he wanted me, I would stick around. Our run from Clarksburg

to Benwood took close onto sixteen liours and when we came in we

were about outlawed. [ went back on the wreck train.

I saw the position of the boiler of engine 2541 and the point

where the explosion occurred. I should judge the boiler was about

three or four hundred feet ahead of the train, in the direction in

which the train was going. The boiler went up and turned around

and buried itself in the ground quite a bit; it was headed just oppo-

site from where it was going. The bottom part of the boiler was up;

the whole top part of it was embedded in th. ground. By the top

part, I mean the smokestack, which was down in the ground. The

crown sheet was up, and I noticed a sort of reddish brown, soot,

scale on it. I couldn’t say just exactly how much. I also noticed

the stay bolts looked as though they were snapped off. There were

several stay bolts; I didn’t take notice as to all of them. While I

was there I did not see any of the various parts of the engine, such

us the water glass, steam gauge and injectors. I never heard whether

those were found,

After I got there I saw engineer Groger at the undertaker’s parlors

at Crocker. He was dead.

Cross-examination by Mr. Kinder:

I left the service the last of September, 1920. I entered some-

where along about July, I think. After I left the service I went to

Texas, working for the Texas and Pacific Railroad, as a machinist’s

helper. I have been braking for the B. & O. for the last four or

five years. I also did some odd jobs. I worked at plumbing work

hut not for the railroad. JI worked as patrolman for the B. & O. for

over a year. I believe I did work over there as a grease packer at

|fol. 34] one time; a good while ago. At the time of the accident

I was employed as a brakeman. I am now in the garage

business, selling cars, and have been doing that for three or four

months. After I left the service I stayed in Texas about two months;

then came back to Wheeling; and then loafed around a couple of

months, doing practically nothing. I then went to work braking

for the Pennsylvania and worked for them a couple of months,

something like that, up to the first of February, 1921. I didn’t

keep much of a record of the time I worked. After leaving the Penn-

svlvania I loafed around and went into the garage business, which

was about three or four months ago. From February, 1921, until

three or four months ago I may have worked at odd jobs, different

things, but mostly loafing around in Wheeling.

We left Benwood on September Ist on this trip, I think about

9 o’clock in the morning. Went to Clarksburg on No. 99. Called

that night around 9 or 10 o’clock, on the 2nd, for No. 100 going to

Benwood from Clarksburg. We are supposed to leave at 10 or 10°30.

We left Clarksburg at something like 10:30—10 o’clock—we are

called between 9 and 10 o’clock at night. It was on the trip from

Clarksburg I was on first 100, and that was the trip that I passed

CGroeger at Foster Tower, We were going from Clarksburg to Ben-

wood, which is something like 98 or 100 miles. This was an east

bound freight train. I think it was just the opposite from the fourth

division. T think it is just opposite on the Ohio River. TI never

went down that way many times. I think it is going east.

We were taking water at the main track at Foster Tower. We

pulled up and stopped, we couldn’t get by. They were going in an

opposite direction from us. I don’t remember how many cars

4—113

nes a

2¢

we had; somewheres around 35 or 40. something like that. When

we got there Groeger’s engine was in on the siding; some of his

cars were sticking in on the siding. The engine was unhooked

from his train and was about two, three, maybe five ear lengths,

something like that from the head end. His train was out on the

main track. He was in the siding. I didn’t notice if he had any

part of the train on the siding. When we came up there our engine

stopped right alongside of his. Brookover was the engineer. [

don’t know the fireman. 1 was the head brakeman.

I was riding in the cab as our engine and train came up there.

That is where every brakeman is supposed to be all the time, on

[fol. 35] the head end. Groeger was taking water as we came up

there. I saw Groeger on his engine. The fireman and brakeman

was on top of the tank taking water. 1 didn’t notice any of my

crew particularly at the time. The engineer goes into the telegraph

office and the fireman goes down on the ground. I don’t remember

if they did on this occasion. None of our train crew got on Groeger’s

engine while I was on it.

I have known Groeger to see him ever since I worked on the

BR. & O. I didn’t just know him so awful well, just met him on the

railroad. I just called him Groeger, and met him on the railroad.

I got off our engine and got on his. I said hello to him. I ean’t

just recall what he was doing at that time, but he was fooling around

doing something. 1 stayed on the engine from three to five minutes,

something like that. I had no duty to perform on his engine. |

“ was on all of the three to five minutes. I got off of Groeger’s engine

because I was afraid of it. If I had not been afraid | would ave

sfayet on until he went back up to catch his train. I don’t know

how long I hung around after I got off. I got off and went over by

the telegraph office, fooled around. I don’t know just exactly what

I was doing. Went back to the train. I don’t believe they had fin-

ished taking water before I got off the engine. Neither the fireman

nor the brakeman was on there when I got off. During the five min-

utes T was on there I was looking the engine over.

As to whether I make it a practice to get on an engine stopped out

on the road to look it over,—I get off and get on and look at the water

glass, such things as that. That is not a part of my duty as head

brakeman on another train. I just do it for something to do. As iar

to going in and inspecting the caboose—I go in and sit down there, |

look around and see what I could see,—not look over the air gauge, |

not that bad.

I said the top gauge was dry. I didn’t test the gauges: Groeger

tested them. The water was going up and down in the water glass,

not fast and not slow. When she went down she would disappear,

about to the bottom. She would not disappear; just about to the bot.

tom. He had both injectors on. He did not turn them on while I

was there; he had them on before I got on the engine, and they were

on all the time I was on the engine. When I got off and went over

to the telegraph office he had both injectors on and 160 pounds of

steam. While I was there the steam pressure did not go up; stood

about the same, then it dropped a little. He had a dead fire along

i i EEE he

3 27

[fol. 36] in the front and along in the side. _J opened the firebox.

1 did not stick any coal in the engine. I did not just exactly see this

water gauge when I first stepped on the engine. I didn’t break my

neck to go up and look at it. I noticed it while I was on there.

As far as I know, they were still taking water when I got off the

engine. That engine was standing still there, she wasn’t working

when I was on the engine at any time. It was while the engine was

standing still this variation in the water glass was going on.

When I got on the engine Groeger told me he was having trouble

with it. He said he wanted to give it up at Moundsville and was

ordered by the dispatcher to go on through with it and he said he

was frat of it. TI said, “How is your water?” I don’t know just

how long after I got on the engine it was that he tried the gauge

cocks; it was during the period of time I was on there. He tried it

twice while I was on there. The first time it showed wet, the first

one. The second time the top one wet, and second and third dry.

The same thing the next time. All the time he had both his injec-

tors working. The steam pressure hung around 160, I wouldn't

imagine it would go up; they wasn’t putting any coal on it.

I did not report this conversation with Groeger and my observa-

tion made on this train to anybody at all at any time. I said noth-

ing to nobody. I went to Texas the last of September, 1920. |

talked about that to Mr. Goodwin. I never said anything to any-

hody connected with the railroad company. I don't know when’ I

first spoke to Goodwin about it; I have forgotten just now when it

was. He heard I was on that engine and came up there and asked me

for a statement. I should judge it was about a month ago: some-

thing like that. It must have been along in December of 1921 some-

where. He is the first man I ever talked to about it.

As I stated, I got on that engine and spent five minutes on it:

made these observations; had a talk with Groeger; and got off because

I was afraid of the engine. I completed my run and went back to

the scene of the accident with the railroad officials. I was an em-

ployee of the B. & O. during the rest of September, went to Texas.

came back, employed on the Pennsylvania and loafed around Wheel.

ing in odd times here since. J] never stated to anybody at any time,

anywhere, anything about it until I stated it to Mr, Goodwin during

the month of December, 1921—never said a word to nobody.

[fol. 37] I left the Pennsylvania because ] got hurt. | do not

have a law suit growing out of that. I had a claim and had an

attorney—Mr. Chapman.

When I went out on that wreck train McGann, an official of the

company, was there. also Creed Malone, train master. I didn’t stay

with them, or go around with them. I knew they were making an

investigation about the accident and that the Federal government

would make an inspection of this. T don’t know whether they did

or not: Texnect they did. They generally always do.

IT knew Groeger was married: J seen his wife and children on

the street. I knew neither one of the other men on Groeger’s engine

to speak to. ;

While I was on the engine I didn’t take notice if he had the blower

on or not. That is one of the thinzs 1 didn’t look at. I don’t

remember if I heard it.

My fireman and engineer didn’t get off their engine to get on his.

I don’t remember as I said a word to my fireman or engineer on

the rest of that trip about that engine.

I finished my run over here in Benwood. After I was on the

train, Creed Malone asked me if I could act as brakeman, they

went out short-handed. I said nothing to Malone about being on

Groeger’s engine, or to McGann.

When I went over the track to the tower, all there was between me

and Groeger’s engine was a single road track. I stayed at the tower

until they got ready to go. I helped get water for my engine. 1

don’t remember how long after I got off the engine Groeger left. |

paid no more attention to the engine, although I was afraid of it.

After what he told me it was about time to get seared of it. I did

not talk to the fireman or head-man on Groeger’s engine; neither

one of them was in the cab; they were on the tank.

I don’t remember as there was a passenger train due along there

about that time. We left Foster and went right into Benwood and

didn’t pass anything on the way.

A thirty-one order is a meet order. The engineer had a meet

order for Groeger’s train. He told me they had a meet order with

2541 at Foster.

The steam pressure was around about 160 and about the same

when I got off as I got on; maybe dropped a little bit. When I got

on he had both his injectors on. T don’t know how long they had

[fol. 38] been on when I got on. IT don’t recall how long after I got

on he tested these gauge cocks the first time but between three and

five minutes; tested them twice. The second time he tested them

right before I got off.

My engineer was on his own engine, I think, when I was on

Groeger’s engine. I don’t know where they were after I got off. |

didn’t look around to see where they were. I don’t remember if

our engine was 2518 or not.

I did not then stop in the telegraph oflice for a little talk; I never

talked to t he telegraph operator.

I don’t remember whether the blower was on or not. I should

judge it was on a little bit. I say that because the steam would be

jamming out of the rear end, or out of the door, if it had not been.

If it was clear on, you could hear it. It may have been on partly.

I did not examine the air pumps. I wouldn't say they was not

working.

I had been around an engine quite a bit. As to whether it is not

a physical impossibility for a steam to come out of the fire door with

the blower on and the air pumps working,—I have seen it come out.

There was a little gush of steam came out when the door was opened.

I didn’t have my face close to it. 1 grabbed hold of the chain and

opened the door. Groeger told me the engine was leaking bad and

that is why I opened the door. I opened the fire door to look at it.

I said I grabbed the chain, but it might have been the air door. 1

mentioned the chain for lots of engines have got chains on. Just

grab hold of the chain. I don't remember that this engine did not

have a chain on the fire door.

I didn’t notice this blue line on the crown sheet there. I just took

a look at it. I didn’t see any.

I don’t remember that I saw Groeger’s train leave. I paid no

more attention to it.

I heard about the accident at the vard office in Benwood.

I asked the yardmaster for a track. Bill Steele was the yard-

master at the time—I ain’t sure. It was a brakeman standing out-

side who told me there had been an ‘accident. When I went to

Steele to ask for a track I was told 2541 blowed up. I got my track

and lined up and opened the main track switch and let him in,

and the wreck train was called and when it was ready to pull out I

got on.

(Adjournment to following day).

[fol. 39] 9.30 a.m. Tuesday, April 25th, 1922.

CHARLES FE. McGann, recalled as a witness, further testified as

follows:

Direct examination by Mr. Chapman:

As to the broken stay bolts which IT found on my investigation

of this boiler, an inspection of that boiler prior to the explosion

would have disclosed the broken condition of those stay bolts.

If I had known that on one side of that firebox three of those

broken intermediate or radial bolts were within a circle of eight

inches, as I testified, I would not have allowed that boiler and loco-

motive in service that day. If I had known that two of those bolts

broken were adjacent, I would not have allowed that boiler in the

service to which it was put that day,

Cross-examination by Mr. Kinder:

From my examination of this boiler and crown sheet after the

accident, I was of the opinion that the broken bolts spoken about,

if broken prior to that explosion, had nothing to do with the failure

of the boiler whatever. a

t was thereupon stipulated and agreed by and between counsel

for plaintiff and defendant that John C. Groeger was thirty-five

vears of age at the time of his death: that his average earnings for

the year previous to his death were $180 per month: that he was

in good health, robust and strong: that his widow, Freda Groeger,

was thirty-one years of age, and that he left surviving him two

daughters, Trene, ten years of age, and Gertrude, seven years of

age; that the widow and two children were entirely dependent upon

him for support; that the said John Groeger’s expectaney of life

at the age of thirty-five, at his death, was 31.7 vears; that his widow

is the administratrix and plaintiff in this action.

It is further stipulated and agreed that the fireman and head

brakeman who were on the engine with Groeger at the time of his

death were also killed by the explosion of the boiler at the same time

as was Groeger.

Plaintiff rested.

[fol. 40] Thereupon the defendant moved the Court to arrest the

testimony from the further consideration of the jury and direct the

jury to return a verdict for defendant; which motion was overruled

by the Court; to which ruling defendant then and there duly ex-

cepted.

CuarLes A. KarNELL, a witness called by defendant, being first

duly sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is Charles A. Karnell. I live in Cleveland. I am su-

pervisor of boilers for the New York Central Railroad, and have

been in the railroad business twenty-six years, practically twenty

years of which have been with the New York Central. I have charge

of the 635 locomotives in the third district, and my work brings me

in daily contact with locomotive boiler conditions and boiler equip-

ment, also the design and construction of boilers and their main-

tenance and upkeep. There are four districts on the New York

Central, and between 2,500 to 3,000 locomotives operating on that

system.

’ The fusible plug is not in use on the New York Central System

because it is not practical. Due to the water surging back and forth

over locomotive crown sheets, we find that the tin in the fusible plug

will fuse and melt, therefore permitting the water to get into the

firebox and putting out the fire. The movement of the locomotive

in ordinary operation, with plenty of water, causes a movement

of the water over the crown sheet back and forth, so that on a grade,

or for other reasons, a fusible plug is impractical because it is bared:

that is to say, the water leaves it at times due to the ordinary opera-

tion of the engine. When a plug blows out it blows out through

the firebox, permitting the water and steam in the fire chamber.

If the fireman at that time happens to be putting a fire into the fire

door. he does not necessarily get the fire and steam; but it would

tend to put the fire out. I wouldn’t say as to injuries happening

to the fireman.

Q. One other anestion, Mr. Karnell. IT have here a model—con-

cerning which, if the Court please, other evidence will he intro-

[fol. 41] dueed—it is drawn to a seale, an eighth in size, of a crown

sheet with the door sheet and the flue sheet. The hole in this end

is the fire door. On that line you will find, Mr. Karnell, that a

blue line lies Leen platted, which you may assume was the location

SS Oe eC

: es x

of the blue line found on the crown sheet after the explosion.

There are also platted on this model certain points here which you

may assume indicate the location of certain stay bolts which it is

claimed were broken prior to the explosion. Will you assume that

the failure of the crown sheet, according to the examination of the

crown sheet, began at the rear top of the crown sheet about at the

junction of the door sheet with the crown sheet and extended to-

wards the engine in a downward direction but did not involve either

of those three stay bolts, but the rupture oceurred there in an area

controlled by them or near them, and that the failure of the crown

sheet as found after the explosion—the line of failure did not occur

through or in the immediate territory of these three stay bolts or

this one (indicating on model). Will you give us your opinion as

to whether or not the broken bolts as indicated in the area on this

model had anything whatever to do with the crown sheet which

failed and contained this blue mark on top of it?

A. Why, the failure of the crown sheet is due to the overheating

of the plate not being able to withstand the pressure above it. That.

of course, would cause it to release off the stay bolts, the crown

stays. Now, then, the crown stays on the top were solid, they were

not broken, but on account of the very heavy plate they slipped

off the solid stays, therefore letting out a large volume of pressure

and in doing that caused the explosion. When the explosion started

it brought down the rear; the front end was the first to vo; the three

stay-bolts as they are marked as broken there on each side, were

not a contributing factor to the explosion, due to the fact that the

solid stays had to let go first before they could come to this.

Mr. Kirder: I may say to the Court that I have called Mr. Kar-

nell out ct order so that the evidence is not in that we expect to

show.

(In response to questions by the Court: )

I don’t know how long fusible plugs have been known to those

skilled in locomotive construction and operation or how long they

have been used on such engines. I have had knowledge of them

[fol.42] for twenty-six years. They were used_off and on; they

were on test, practically. I keep myself informed of the practices

of other railroads and other departments of railroading than my

own, The only case that I know of a fusible plug being used

was on the Chesapeake & Ohio. They were used there in 1910 on

that road for about four months, and during that time I had oc-

, casion to work on engines having those plugs, and we had trouble,

we had to remove them from time to time and refill them because

of the metal fuse running out, as the tin in them would fuse at 446

degrees of heat. The temperature in the boilers at 200 pounds pres-

sure is equivalent to 388 degrees of heat; so that with 466 degrees

fusing point of tin, we only have to use 58 more degrees, T wouldn't

say as to whether they are using them on that road today or not.

As a rule, in the general railroading world, all the railroad systems,

they are not used. They have not been accepted and used by master

| 32

mechanics and locomotive engineers as standard equipment in loco-

motive service.

Cross-examination by Mr. Chapman:

\/ They are universally used in stationary boilers.

Assuming a fusible plig was ict Id go at the highest

point of the crown sheet and would project about an inch and an

eighth about the crown sheet. The metal in that fusible plug is

much more fusible and melis quicker than any part of the crown

sheet.

In actual operation, a fusible plug placed at that point on the

crown sheet, projecting above the crown sheet, as soon as the water

got down to the fusible plug and laid bare the top of that fusible

plug, the soft metal in that plug would melt and allow the escape

of all pressure from that boiler, and in that way it would prevent

any burning or overheating of that crown sheet.

's°)

Water C. Hepeman, a witness called by defendant, being first

duly sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is Walter C. Hedeman. I live at Baltimore, Maryland.

1 am in the mechanical engineer's office of the Baltimore & Ohio

Railroad Company. [ have been with the road sinee March 2rd,

1903. [started in 1900 at the Maryland Steel Company, building

[fol.43] marine engines at Sparrows Point. During my service

with the B. & O. I worked in the shop on locomotive construction

for six years; I then obtained a position in the mechanical engi-

neer’s office, as draftsman, and just went right up the line finally

to boiler design and construction, and for the past five years have

had general charge of boiler design and reinforcement for boilers

when they they were required, and I pass on all questions regard-

ing the strength of locomotive boilers on the B. & O. Railroad.

Engine 2541 is the type of engine known as E-27. That just

means the model, the same as vou say a 1916 automobile, or certain

model. That was built by The American Locomotive Company,

which is considered the best in the country. This 2541 is a model

with which I am familiar.

At your request I prepared a model of a crown sheet. When I

was first asked to get into this case it was brought to my attention

by the assistant claim agent, and I had one of the draftsmen take

the blueprint and lay out these sheets from the print to seale, ap-

proximately one-eighth size, and had them put together.

Referring to the model, Defendant’s Exhibit 1, this circular sheet

on top is the crown and side sheets made in one piece secured to the

mud ring. This is known as the mud ring because that is the lowest

art of the firebox where the mud accumulates, and there is washout

oles at each end of them to wash that out. The hole represents

eae ’

the door hole in the door sheet, and this is the door hole in the back

head. There is a neck on here where this is joined to this sheet.

(Underneath the crown sheet is the firebox, and right on the bottom

is the grates, which would be supported. The whole area of grates

is there, and the coal is thrown in on those grates and the draft

comes up underneath and the flame and gas goes out through the

flues to the front end and out the stack.

Defendant’s Exhibit 2 is a very good illustration of a locomotive

firebox. You see the grates and above them the coal fire going up

over the arch brick. There are four arch tubes in there supporting

bricks. The bricks are used to throw this flame back here first rather

than let it go through the flues without getting the benefit of the

combustion and getting all the heat out of the coal, and that throws

a most intense heat up on the crown sheet. Now, above the crown

sheet you _cun see the water; this line (indicating) 1s the water.

‘This, to my mind, brings the idea of a locomotive firebox out more

clearly by way of a picture or print than anything I have ever seen.

|fol. 44] I don’t think anyone could describe it any handier than

you can see on this picture in a few minutes.

In explaining Defendant's Exhibit 1, I will begin with the gen-

eral construction of the boiler. They are made from flat sheets re-

ceived from the mills. They are absolutely flat and are rolled to

this shape (indicating) before they are put together, so that there

is no strain here in joining the sheets. It is metal to metal. This

crown side is in one pieec and rolled to this contour. That is the

inside firebox sheets. The rear sheet here of the entire firebox is

known as the door sheet; the front sheet of the firebox is known

as the rear flue sheet. There is a rear flue sheet to the front

flue sheet in the front end of the boiler, and the front flue sheet

would be drilled and bored with holes for taking the flues, and the

flues would extend from the back to the front for the gases to go

‘through. The flues in this boiler are fifteen feet ten inches long.

The front flue sheet is three-quarters of an inch thick and the back

stieet half an inch. The flues are expanded in the sheet to prevent

leaking; the front end is expanded rolled; and on the back end

there is a copper ferrule put in here and the flue is fitted over, rolled

over. In addition to that, it is electric welded all around to keep it

from leaking. I mentioned the mud ring. The outside sheets are

then rolled to shape. This is known as the wrapper sheet: the

wrapper sheet is sometimes called wagon top. It is the shape of the

old Canistoga wagon. These are the outside sheets—left and right

side, and what is known as the back head, which is similar in shape

to the door sheet; and then there is the outside throat sheet. This

(indicating) is the barrel. There is a first and second course to the

barrel. Those sheets are circular. Then there is the smoke box,

and the front flue sheet. That boiler would have 282 flues through

those sheets. When these sheets are shaped, this outer shell is put

tovether on the floor, the back head, the wrapper, and the throat,

and this is put togcther on the floor separately and is then placed

inside here (indicating). Now, there is a double row of rivets all

5—113

EEO ee aeeaaaaaeaeaeaeeeeeee_—_e_e ee __—_—_—EaEEaaIwSESeerre_,_XOXvXKw—eeeeeeeeee

around here, sealing the inner and outer sheets together at the mud

ring. The mud ring is made of cast steel,

The water is in the space from the mud ring to the top and gets

up in the barrel above the flues. The gases and flame go through

the flues and the water is all around them on the outside, and that

|, [fol. 45] heats the water and generates the steam. The smoke, heat

and gases eseape into the smoke box and then out through the stack.

The holes represent the holes for the stay bolts. It is necessary,

on account of these shicete being comparatively flat, to be tied together

to prevent them bulging out; and they are fastened together with

what is known as stay bolts. The full size model shows it better.

That model is full size as regards the thickness of the plate ond spac-

_, ing of the stay bolts. That model was prepared by me to show the

4 / location of the particular bolts and is an exact representation of the

‘| arrangement including the size of the crown and wrapper sheets

' | and stay bolts in engine 2541. The boiler makers laid that out from

the blueprints of that particular boiler. They had to have something

to make it by and that is what they made it by, right to seale. The

one sheet is three-eighths thick, of firebox steele and the other is

nine-sixteenths, and the stay bolts are serewed in both sheets and

riveted over on the outside to make them tight and to hold them to-

gether. When this boiler gets pressure on there is a tendency to

force these sheets apart, and these bolts must be in there to hold those

sheets together. The bolts are what we call “in tension.” There is

a constant pull on them Tike that. Tinight mention here that the

law only allows us a stress on stay bolts of seven hundred pounds

per square inch, which is the lowest stress allowed on any part of the

boiler. In other words, you have to make your stay bolts safer than

anything else. I might mention that thisboiler has a total of 1,464

stay bolts, that is, counting all these in the door sheet, side, crown and

throat. These holes represent the stay bolt location, each one would

represent one of these bolts. —— wien

Defendant’s Exhibit 3 is a photograph of the back head of a loco-

motive showing the gauges, throttle, apron and water glass; and is

correct as to engine 2541 as regards the water glass and gauge cocks.

(At request of counsel witness marks on exhibit location of first, sec-

ond and third gauges. The hole at the bottom of this picture is the

fire door. The tube on the right hand side is the steam pipe to the

right injector, and the one on the other side is the steam pipe to the

left injector. This shows the throttle Tever extending across, It is

connected up to a throttle rod which extends through the back here

into the dome, and the throttle is in the dome and when he pulls

this lever this way, that opens the throttle in the dome and lets

steam come down through the steam pipe up to the front end and

[fol. 46] down to the cylinders to move the engine. As you look

at the picture, the right hand side is the engineer’s side of the cab.

(Defendant's Exhibit 3 offered and received in evidence and at-

tached hereto and made part hereof. )

Defendant’s Exhibit 4 is a photograph taken close up to this door

hole on the back here, and you see very plainly the arch brick which

ie ee i ee

CO a TS. SS ee ee De

are referred to. These are the arch brick and these are the arch

tubes that support the bricks. As I explained before, the flame comes

up and strikes the brick und goes over the rear end and then through

the flue.

(Defendant’s Exhibit 4 offered and received in evidence and at-

tached hereto and made part hereof.)

I plotted on Defendant's Exhibit 1 that portion which was reported

as being peacock blue. It is just the front end, and is the area

enclosed by the heavy blue lines.

There were reported seven defective stay bolts. They are located

here on this exhibit, three on the left side and three on the right

and one at the front end in the fourth row from the front.

I have seen the Railroad Company's report indicating the point

of the rupture, where it started and where it ended. Generally, the

rupture occurred, according to the report, in the third row from the

center at the back, and tore down towards the door hole and then

tore down this side (indicating), and tore diagonally down on each

side. First, the report shows that the crown sheet pulled off the

bolts. That is called sagging, due to the metal getting red hot and

stretching. The report shows that there were four holes at the front

which were elongated ; by that we mean distorted or stretched out of

shape. They were larger than the actual heads on the stay bolts

which were in that crown sheet, showing that they did stretch.

Then this sheet pulls off those bolts and goes down and presents such

a large area unsupported that there is nothing left then except for

the sheets to tear, and the tear took place, it started up in the rear,

the third row from the center. An examination of the bolts after

the explosion and an examination of the crown sheet will indicate

right on the metal this pulling motion of the sheet off the bolts, the

_ heads of the bolts indicate that, and the bolts in the crown sheet will

_ be elongated.

[fol.47] Q. Now, Mr. Hedeman, having that in mind and having

in mind the location of those seven bolts, in your opinion as a boiler

expert, could those seven bolts be considered as even a contributing

cause to that boiler failure?

A. Absolutely not.

(Narrative continued:) Fusible plugs are not used on the Balti-

more & Ohio Railroad Company's engines. We have approximately

2,700 engines. The system extends to St. Louis, Chicago, Phila-

delphia, Baltimore, with numerous branch lines.

IT have made inquiries on the question of the use of soft plugs on

locomotives other than the Baltimore & Ohio.

Fusible plugs are regarded as an encouragement to the engineer

to not keep careful watch on his water, not keep as careful watch

on the water as he would if he didn’t have a fusible plug. In other

words, he would rely to a certain extent on that fusible plug blowing

out when the water got low, and if he wouldn't have the fusible plug

he would be very careful with his water and watch his gauge cocks

and water glass. When the fusible plug blows out the water and

steam come out at the front end of the crown sheet and it blows it

down on the fire.

Cross-examination by Mr. Chapman:

The B. & O. is the only railroad I am working for. I have not

seen a fusible plug in use on the boiler of a locomotive engine. I

know the purpose of it. Its purpose is when the plug would be ex-

and not covered with water the soft metal would melt and come

out and allow some water to escape. The plug won't prevent the

water from getting down to the top of this crown sheet; it would give

warning.

With a fusible plug in this boiler at the time of the explosion, all

pressure within that boiler would not have been released by the action

of that fusible plug before the water could get low and leave the

peacock blue mark on the top of the crown sheet. When the fusible

plug metal melted it would blow steam and water down and gi.e

warning. Theoretically, it would release the pressure in that boiler,

but it would be negligible through that small Pole. The force of the

steam going through the holes in that fusible plug would be as noth-

ing compared with the blowing up of that boiler. When the fusible

lug blows out it gives warning that the water is low. It is self evi-

Tfot 48] dent that the danger of a fusible plug blowing out is

nothing compared to the danger of the boiler blowing up.

When the fusible plug blows out that lets enough steam: and water

into the firebox to deaden the fire, and the engine can’t be operated

thereafter ; they have to take it in, draw the fire, kill it and take it in.

Whenever that happens the engirie and train itself comes to a stand-

still and they stop and call for help. That would be the consequences.

Q. Mr. Hedeman, with the fusible plug installed on this boiler

at that time would that have prevented the burning of this crown

sheet as you have described it here?”

Mr. Kinder: I object to that.

The Court: He may give his opinion, whether in his opinion it

would have prevented the burning of the crown sheet as indicated by

the peacock blue line.

Mr. Kinder: Exception.

A. That would depend on whether the plug properly functioned.

The Court: What do you mean by properly functioned?

The Witness: Answer the purpose for which it was designed. It

has been testified that these plugs become inoperative due to aceumn-

lation of scale on the plug and that they really burn out and melt

when there is no low water.

Q. Mr. Hedeman, my question is, assuming that the plug was

kept clean and no scale allowed over it, and that that plug functioned

the soft metal melting before this crown sheet was touched, would

that have prevented, in the proper operation, the burning of this

crown sheet and the explosion of this boiler?

Mr. Kinder: I object to that.

The Court: Objection overruled. He may give his opinion and

answer that.

Mr. Kinder: Exception.

A. Well, if the fusible plug answered its purpose the soft metal

would melt out and steam and water come through.

[fol.49] Q My question was, would that have prevented the re-

oe burning of that crown sheet and the blowing up of the

boiler?

A. Under those conditions, Mr. Chapman, we must assume that

the water only got so low as to just bare that fusible plug, and due

to the slope a that crown sheet (refers to crown sheet of model ) —

this crown sheet is three inches higher in the front than in the

back; that is, compared with a horizontal or level line. Now, the

fusible plug, if one were used, would be in the first row and naturally

that is as low as the water would g.’, just to that point (indicating

on model), and you would still have water here, and if the fusible

plug functioned and blew out that would give warning when the

water just got to that point. The rest of the sheet would be covered.

( Narrative continued:) If there was enough pressure on the boiler,

when that plug blew out it would blow steam into your fire and

practically put out the fire. Assuming there were 160 pounds

pressure on the boiler when that plug melted out, the continual flow

of the steam through there would kill the fire.

Q. And that would have prevented this boiler explosion, would

it not?

Mr. Kinder: I object to that.

The Court: Overruled.

Mr. Kinder: Exception.

A. I think I have stated that rather clearly, that the fusible plug

would give warning and blow down on the fire, the steam would

How down on the fire.

The Court: And would put the fire out and relieve the pressure

in the boiler, wouldn't it?

The Witness: It would kill the fire and relieve the pressure. 1

think that if understood, your Honor. ——"

(Narrative continued:) The rules and regulations of the Inter-

state Commerce Commission forbid locomotive boilers to be used if

more than six bolts are defective: and if two of them are side by

side iT is a File of inspection Mat they must he repaired before they

are used, even if there is less than six. We expected to conform

to that. There is a penalty prescribed by law.

It the bolts were broken as they are marked on this model, two

of them being adjacent, and the third one near them, theoretically

Et er eer ee + . ~~ — PU ASHI Sesto parae

[fol.50] those broken bolts would reduce the resistance or the

strength of that boiler. Theoretically, the broken crown bolt which

I have marked as being broken, would reduce the strength of that

boiier for internal resistance. As this particular point where these

bolts are broken is the strongest part of this fire-box, crown or stay

sheets, for this reason: that it is on what is known as the radius.

A man don’t have to be a mechanic to know that a sheet bent like

this will stand more pressure than a flat sheet. That is why I say

theoretically only it reduces the strength because it is in the strong-

est part of the firebox. I can qualify it by saying that the A. S. M. E.

code, that is, the American Society of Mechanical Engineers code,

for building boilers, allows you certain strength for a circular fur-

nace. ‘This portion of the firebox is equivalent to a circular furnace

and has strength of its own without the bolts. I may also mention

at this particular point that there is the greatest expansion up here

in this way (indicating), and bolts break here more frequently than

in other places, but they don’t affect the strength of the firebox

perceptibly, that is, that vou could notice it, because of the curva-

ture of the sheet. It is equivalent to a board placed flat with pres-

sure on it, or placed edgeways. Of course, that is going from one

extreme to the other. Or we will say a flat surface or a curved sur-

face. This is much stronger this way than if it is just flat, (in-

dicating). The same here on this firebox; that is stiffer along here

than it is here (indicating).

As to whether it is more serious with two broken bolts adjacent

than if they were scattered over a large area for the internal re-

sistance of that boiler, I will give you my personal opinion on that

as an engineer. Two adjacent broken stay bolts on the curved por-

tion of that sheet would not be as serious as one broken bolt on a flat

sheet.

A. R. Ayers, a witness called by defendant, being first duly sworn,

testified as follows:

Direct examination by Mr. Kinder:

My name is A. R. Ayers. I am a resident of Cleveland.

I am superintendent of motive power of the New York, Chicago

& St. Louis Railroad, also known as the Nickel Plate, which extends

from Buffalo to Chicago. I have been in the railroad service nearly

[fol. 51] twenty-two years, about fifteen years of which have been

devoted to the questions relating to boiler construction and main-

tenance. My duties as superintendent of motive power are design,

construction. maintenance and somewhat operation.

The fusible plug is not in use upon the locomotive boilers of the

Nickel Plate Railroad. During the course of my connection I have

made a somewhat casual investigation, not particularly searching,

into the extent of the use of fusible plugs on locomotive boilers.

Without anv definite figures to support my answer, it is my opinion

that the ure of the fusible plug in railroad work is not very general.

The American Railway Master Mechanics Association is now a

art of the American Railway Association as a mechanical section.

rior to that time it was an association of railway motive power

officials, that is, the master mechanics or similar officials of the

various railroads had an association, in which they met and dis-

cussed their problems, made reports and recommendations, and, in

addition, adopted standard practices and designs. Those standard

practices and designs were not compulsory but they represented the

, consensus of opinion as to what was the best practice. This Amer-

ican Railway Master Mechanics Association comprised representa-

tives of nearly all the railroads in the country.

According to the proceedings of the American Railway Master

Mechanics Association, they passed a resolution in 1899. Defend-

ant’s Exhibit 5 is a copy of the resolution as it appears in the 1917

and ’18 proceedings of the American’ Railway Master Mechanics As-

sociation. It was adopted in 1899, and those things are carried

forward from year to year in the proceedings. That was copied

correctly directly from a printed copy of the proceedings, and reads

as follows:

“Resolved that it is the sense of the American Railway Master

Mechanics Association that the use of fusible plugs in the crown

sheets of locomotive fire boxes _is not conducive to the prevention of

the overheating of the Grown sheet.”

Mr. Kinder: In view of the fact that the witness has read the

resolution we will not offer it. That is all a part of the record.

No cross-examination.

[fol.52] Roser Cecix, a witness called by defendant, being first

duly sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is Robert Cecil. I live at Holloway, Ohio.

I have been employed by the Baltimore & Ohio Railroad Com-

pany and was employed by them in August of 1920 as machinist

and inspector. As inspector, it was my duty to inspect locomotives

and make reports at various times of their condition.

In connection with inspection of locomotives and in the ordinary

routine in August and September, 1920, it was the custom to in-

spect an engine monthly. The purpose of the inspection was for

Federal forms. When the inspection was made of the various parts

of a locomotive, a report was made based on that inspection, under

oath, to the Federal government. That is required once a month.

As to monthly locomotive inspection report, marked Defendant's

Exhibit 6, I took part in the inspection of the engine. report of

which is made on that form, and my name is on that form. The

report which I made on that form was made under oath. The

original was forwarded to the Federal inspectors. 1 inspected the

40 |

mechanical parts on that engine. I inspected both the injectors and

found them in good condition. That inspection was made on

August 7th and the report was sworn to by me on the 11th, 1920.

I had nothing to do with the washing of the boiler, but I tested the

gauge cocks and removed the water glass, cocks, splinters and cleaned

the cocks. 1 had nothing to do with the condition of the stay bolts

and crown stays, and so forth.

When an engine comes in from a run, in the ordinary process

of our business, the engine is inspected at the conclusion of the

day’s run. When the engine comes in to the terminal the engineer

who has charge of the engine on that run makes out a work sheet

in which he notes the things that ought to be done to the engine

before it is taken out again. In connection with that report, I,

as inspector, also make an inspection of the engine and determine

what its condition is.

I made an inspection of my particular part of this engine on the

2nd day of September, 1920. Defendant's Exhibit 7 bears my

signature at the lower left hand corner. The parts of the engine

[fol. 53] I was responsible for were the machinery and running

gear. I did not go into the question of injectors ‘or gauge cocks

on that inspection. They just see that it was suitable for service

there. There wouldn't be any test. only just to see that they were

suitable for service. They would be tried to see that they were in

— The foreman, W. O. Kennedy, was the man that o.k.’d

that.

No cross-examination.

J. W. Brewer, a witness called by defendant, being first duly

sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is J. W. Brewer. I live at Holloway. I am employed

by the Baltimore & Ohio Railroad Company and was in Septeml-er,

1920, as boiler maker. Part of my job is inspecting boilers. Once

a month the boiler inspection is made, the report is sworn to by the

inspectors, and forwarded to the government.

Defendant’s Exhibit 6 is the form of report that was made on

engine 2541 in August of 1920. I didn’t wash the boiler myself

but I know it was washed. [ere is where we start here, with “11.

Were steam leaks repaired? Yes.” “Condition of stay bolts and

crown stays. Three broken.” I renewed those; it says “Three

renewed.” The condition of the flues and fire-hox sheets was good.

Condition of the arch good. We didn’t use any fusible plugs on that

engine. My signature iz at the lower part there, and I made that

report under oath. On August 7th, the date of this report, there were

three broken stay bolts, which, to my knowledge. were fixed. Those

were the only broken stay bolts in the engine at that time.

ney I rE ET nS NEE TY SRS I Cee mae eens mee

Cross-examination by Mr, Chapman:

I myself made an inspection to determine those broken stay bolts.

I determined it with a hammer. I did not renew those broken stays;

we have a gang that renewed them. I know they were renewed.

(Counsel for defendant offered in evidence Defendant’s Exhibits 6

und 7 which were received in evidence and are attached herto and

made part hereof.)

[fol.54] J. W. Hamitton, a witness called by defendant, being

first duly sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is J. W. Hamilton. I live at New Martinsville, West

Virginia.

I am employeu by the Baltimore & Ohio Railroad Company as

engineer and was so employed in September, 1920.

I had engine 2541 on September 2nd. I was the last engineer that .

had the engine before Mr. Groeger took it out on his run on the

3rd. At the conclusion of our run we make out a work report of

the condition of the engine. That report (Defendant’s Exhibit 8)

refers to what defects have occurred uring the time we have been

operating the engine. I made out that report at the conclusion of

that run.

The run ended at 1:30 p. m. of the 2nd day of September. I

noted on that report what defects the engine developed during the

run. The defects are, “Clean out the flues; refill all grease cellars on

the left side.” The grease cellar is the bearing at the wheel, the

axle. The next one is, “Tighten left steam chest cover,” which is

down where the piston valve goes in and out. The next is, “Clean

out oil cups on air pumps.” Those are defects I found with that

engine that developed on that run.

The condition of the injectors on that run was good. The gauge

cocks was good and working. We make a report on injectors and

gauge cocks and water glass valve and the cylinder block and all

these things that are set out here, and write in what their condition is.

I write this in when I get through with my run. This is my hand-

writing and signature down there. It says, “Condition of Injector,

right and left, good.” That was the condition of them. The con-

dition of the water glass, gauge cocks and valves was good. The

eylinder packing and rod packing doesn’t have anything to do with

the boiler. The condition of the driver wedge boxes, air sanders and

bell ringer was as indicated on my report.

When I operated that locomotive she was a good locomotive, one

of the best we had.

‘ [fol. 55] Cross-examination by Mr. Chapman:

On the day prior to the accident I made a run with this locomotive

from Brooklyn Junction to Holloway. On that trip the sight glass

6—113

Yak Paes

feed indicated the level of the water in the boiler at all times, and

did not fluctuate from the top down to the bottom at all that I

noticed. It was steady throughout that trip.

W. O. Kennepy, a witness called by defendant, being first duly

sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is W. O. Kennedy. I live at Holloway, Ohio.

I am employed by the Baltimore & Ohio Railroad. Holloway is

a terminal. In September, 1920, and prior to that time, I was em-

ployed as roundhouse foreman, and as such the various reports, in-

eluding the work which was done on the machinery end of engines

came under my supervision. By the “machinery end” I mean the

running gears, injectors and the rods.

Defendant’s Exhibit 8, locomotive inspection report, engine 2541,

dated September 2nd, 1920, bears my signature.

As roundhouse foreman, so far as the machinery is concerned, and

as foreman, it was my duty to inspect and check up the work that

was ordered for a particular locomotive; and I did that in regard to

2541 on the 2nd day of September, the date of this report. The

report sets out the work that was done on the engine, and the names

on the right hand column are the names of the men that did the

work. Before signing a report like that I see that the work is done.

This report also describes the condition of the injectors, water glass,

gauge cocks and other parts of the machine, and my signature on

that shows I have checked that up.

(Counsel for defendant offered in evidence Defendant’s Exhibit 8,

which was received in evidence, and is attached hereto and made

part hereof.)

No cross examination.

[fol. 56] Atsert Hooper, a witness called by defendant, being first

duly sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is Albert Hooper. I live at Holloway.

My business is that of boiler-maker for the Baltimore & Ohio Rail-

road Company, and I was employed as such in September, 1920. By

“hoiler-maker” I mean a man who is engaged in and about inspection

of boilers. When an engine comes into a terminal various parts of

the engine are inspected by various departments.

Defendant’s Exhibit 9, locomotive inspection report on 2541, dated

September 2nd, 1920, is a report in connection with the boiler of

that engine. I made that report out and it bears my signature. I

inspected the boiler on that day.

By “inspection” I mean we go over the whole boiler, go around it,

that is on all inspections, go right around it and look for broken stay

bolts, cracks, seams or anything that is leaking in the fire box. An

inspection is made in the fire-box. That inspection is made to

ascertain whether there are any leaks in the fire-box.

On this day I didn’t do a thing in regard to the fire-box—no leaks,

Around the mud ring and for eight rows above the mud ring

of the stay bolts they have telltale holes drilled in them. If a bolt

is broken in any of those rows those telltale holes permit the escape

of water or steam, so that when the stay bolt is broken there it is

apparent from the escape of steam on the outside of the boiler; that is

what it is for.

My inspection with reference to those bolts showed they were all

right.

Cross-examination by Mr. Chapman:

As to the bolts in that fire-box, I made an inspection of nothing

only the ones that have telltale holes in them, that had inspection.

I did that personally. The radial bolts or bolts toward the crown

stays haven't got telltale holes in them. You can’t make an in-

spection of those at that time on account of the leaking. To make

an inspection of those they have to use a hammer on them, test them

with a hammer.

[ fol. 57] Redirect examination by Mr. Kinder:

When an engine is “formed” it means the arch has: to come

down on all of them, the whole arch has to come down, the fire-box

cleaned and the flues blowed and inspected, and you have got to

go over every bolt in the boiler with a hammer. That is formed

for the purpose of report to the government every thirty days.

(Counsel for defendant offered Defendant’s Exhibit 9 in evidence,

which was received and is attached hereto and made a part hereof.)

W. J. Dixon, a witness called by defendant, having been previously

sworn, further testified as follows:

Direct examination by Mr. Kinder:

My name is W. J.. Dixon. I live at Holloway, Ohio.

I am employed by the Baltimore & Ohio as Assistant Master Me-

chanic of the Wheeling station,

In connection with the operation or maintenance of engines, each

engine is inspected after its run. The engineer makes a report of

the defects noted by him and also the inspectors make out separate

reports. The work that is reported by both the engineer and in-

spectors is copied off on to what we call work cards, they in turn

are turned over to the foreman and he distributes those to the various

workmen according to the work designated on the ecard, and when

the work is completed, that is checked off on these reports made out

by both the inspector and the engineer and the report is approved

by the foreman in charge. That is known as the locomotive in-

spection report. The boilers are washed out down at Holloway; we

keep a book record of them.

(Witness handed book.) This is the book record. I have ex-

amined this. The record shows that it was washed on August 5th,

according to form 1047-A, which is the monthly form, and which

has been marked Defendant’s Exhibit 6. The boiler washout record

shows that the inspection contained in the form was made on the

7th of August. The record shows it was washed at Holloway on

August 2ist. The record shows it was washed next on August

30th at Holloway.

This engine ran between Holloway and Brooklyn Junction. There

are no facilities far washing engines at Brooklyn Junction. They

|fol. 58] wash them at Benwood sometimes. This record only ay-

plies to Holloway, and shows the boiler was washed on the 5th, 21st

and 30th of August, 1920.

In the use of a boiler the water contains more or less solid matter

which in the process of being heated in the boiler causes the solids

to precipitate and be thrown down in the form of mud, sludge.

and this settles mostly down around the mud ring in the fire-box:

also a certain amount accumulates in around the barrel of the

boiler and the flues; also ordinarily a small accumulation of scale

forms from the chemical action set up from the different propertics

of the water. Therefore it makes it necessary that the boiler he

washed out at intervals to remove this mud and accumulation of

scale. That is done by plugs located about the boiler, the barrel

of the boiler and about the fire-box and back head, over the crown

sheet, and also in the arch tubes on each end are plugs from an inch

and three-quarters up to two inches in diameter. Those are serewed

into the sheets of the boiler and when an engine is taken in for

boiler wash, pressure is blown down; the engine is killed, the fire

removed and pressure blown down, and all water emptied out of

the boiler through a cock in front, one of the blowout cocks. Some

places they use a blow out system with hot water. Then all plugs are

taken out, both around the fire-box and around the mud ring, Io-

cated around the bottom of the mud ring, and up on top, over the

top of the crown sheet, out over the top of the barrel of the boiler

and also at the top of the boiler, and down at the bottom of the bar-

rel through the under side. After the plugs are removed then we

use water under a considerable hydraulic pressure, which ranges

from 125 to 175 pounds at Holloway, to the square inch, an:l

it is hot, really around about from 150 to 180 degrees. We

use a reinforced washout hose to withstand the pressure, and

certain special design nozzles for introducing it into these holes

in the boiler. These nozzles are injected into the various hole open-

ings of the boiler, which you obtain for the removal of these plugs,

and we start at the top of the boiler washing down so as to remave

all mud and sediment that might accumulate on the crown sheet

and on the flues, work down through, and then we wash the barrel

of the boiler on the under side, which brings everything finally to

the lowest point, which is around the mud ring. Then the hose

is put in there and all accumulation of mud and sediment is washed

[fol.59] out; and also at this time we use what we call an arch

tube cleaner, which we run through the arch tubes, sort of a turbine

or a miller cutter, which you find in a machine shop. They just

put that onto the tubes and remove all scale and sediment; also

we use a pneumatic air hammer, a light air hammer and go over

the entire crown sheet and side sheets, giving it a slight bumping,

jarring motion, which jars all accumulation of scale free from the

crown sheet; that, in turn, is all washed down, too, so that when

the water wash is complete not only the mud but the accumulation

of scale and any sediment that might have adhered tightly to the

crown sheet is removed. Also the gauge cocks are removed at thie

boiler wash and any of them that are leaking in any way, they are

ground in to provide a tight joint, and for the opening where the

gauge cock screws into the outside wrapper sheet of the boiler in the

back head, we have special tools like a big girder screw, about a

quarter of an inch or five-sixteenths in diameter, which we run

right through there to see that those tubes are all open through the

opening into the boiler. The water glass which indicates the level,

as well as the gauge cocks and connections there, are entirely cleaned

by the use of running an instrument through them to see that all

scale and sediment are removed and the water has a clear passage

or clear circulation from the boiler through the water glass. Then

after this is done the boiler is inspected by the boiler inspector, who

usually uses either an electric light or a long piece of stiff wire with

some asbestos soaked in oil, which they introduce in these various

openings over the crown sheet of the boiler and examine it and see

that all mud and sediment is removed, after which the inspector

passes upon it to go ahead, and these plugs are put back and tight-

ened. It is after this work is completed that the man signs for the

boiler wash.

No cross examination.

[fol. 60] T. E. Peat, a witness called by defendant, being first duly

sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is T. E. Peal. I live at New Martinsville, West Virginia.

T am an engineer with the Baltimore & Ohio Railroad Company

and was in September and August of 1920. 1 remember engine 2541,

and remember of having had that engine on a trip in the latter

part of August or first of September. I had it out of Holloway on

the 31st of August, bound for Brooklyn Junction, which is about

69 mines. I was hauling a freight train,

When I had that train on the 31st of August the condition of her

gauge cocks was good and her injectors were good. I did not

have any trouble or notice any defect in the water glass. Her steam-

ing qualities as far as being an efficient engine is concerned were good.

While I had it, to the best of my knowledge, I think there were

some small leaks in the fire-box which were reported by me at the

conclusion of my trip, on the 31st of August, 1920.

Cross-examination by Mr, Chapman:

On that run the sight glass indicated an even level in the glass

feed. At no time on that run to my knowledge did the water in

the sight glass feed fluctuate from the top of the glass down below

the bottom and then back up again. IT never saw it do that on an

engine.

Howarp LIsLe, a witness called by defendant, being first duly

sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is Howard Lisle. At present, I live at Mason City,

West Virginia.

In August and September of 1920 I was an engineer with the

Baltimore & Ohio Railroad Company, running between Holloway

and Brooklyn Junction and return. I was on freight runs.

In the course of my work in the latter part of August and first

part of September I had occasion to drive engine 2541. I think

I used it on the 29th, 30th or 31st of August. As to whether I

| fol. 61] used the engine to take a freight train from Holloway to

Brooklyn Junction and then used the same back, it depends on

what engine was ready. We might be called for that engine and

it might be some other engine is ready so that you wouldn’t get

that engine. While I was operating the engine on the 29th, 30th

and 31st of August, I did not have a bit of trouble with the in-

jectors. The gauge cocks were o.k., and the water glass. You can

check the water glass against the gauge cocks and the gauge cocks

against the water glass. They correctly showed the height of the

water.

In my opinion as an engineer, when I had the engine she was in

fair condition. I had some trouble with the air pump and that was

reported on the work report.

Cross-examination by Mr. Chapman:

During my experience with that engine the water in the sight

glass feed maintained a constant level and didn’t fluctuate from the

tov to the bottom of that feed.

W. S. Brookover, a witness called by defendant, being first duly

sworn, testified as follows:

Direct examination by Mr. Kinder:

_My name is W. S. Brookover. I live at Clarksburg, West Vir-

ginia.

Bey anions 47

I am an engineer with the Baltimore & Ohio Railroad Company

and was such on the 3rd of September, 1920. On that day the

number of my train was 100, and we were going from Clarksburg to

Benwood, which would bring us past Foster Tower east bound.

As I passed I saw Groeger’s engine at Foster. He was headed in

the other direction, west, and was there when I arrived. His engine

was at the penstock when I pulled in. As I was going and as he

was going, my side of the cab was on the same as his, that is, our

cabs were together; that was because he was on the siding. The

peatienk sod bewneen the wwe vaginas. As 1 eume inte, Postan L

stopped my train about a car length of the water plug and the

head brakeman cut the engine off so I could pull up and spot my

engine at the water plug and take water and leave as soon as we got

our orders and the other man got in the clear. I don’t remember

the head brakeman’s name. I have heard my conductor say it was

[fol. 62] Bursee, but I didn’t ask him his name, as he was an extra

and we have so many extra men and the brakeman’s time is taken

from the conductor’s time slip, that is why I never ask the brake-

man his name. He was on my engine and cut the engine off to

get away. By cutting off the engine I mean he had charge of the

coupling apparatus and the air hose. In cutting the train he would

have to cut the air hose, cut the lever and signal me to go ahead.

Before doing that he would have to dismount from the engine and

go back to where the coupler was. After cutting our train it moved

up to the water spout and I spotted my engine. At that time

Groeger’s engine was at the penstock, at about the time I got my

efigine stopped and tank spotted to take water. Tlis fireman was

done taking water and give the penstock a sling and my fireman

took hold of it and put it in the tank and filled our tank.

I did not see Groegor at that time. Just about the time I seen

the fireman was going to get the water started through the tank, that

it was spotted about right, I looked ahead and Groegor came around

the front of my engine underneath my cab, goes on beside me, and

climbed up on his engine with his order in his right hand, nineteen

order in the right hand, shoved the bar forward with the left hand

and started his train, and pulled onto the siding. A thirty-one order

is an order that the conductor signs and they are yellow, and the

nineteens are green. If you see a green order in his hand you

know it was a nineteen. He must of come out of the telegraph

office. I didn’t see him come out of the office, it is on the opposite

side from me; just about the pilot would stop just a little by the

door. It wand be nearer for him to come around the front of

the engine than the other way. He came from the direction of the

office. When I pulled up he was not on his engine.

From the time we arrived there until we left I don’t think it was

over two minutes; I didn’t just look, but I know it was a very short

time. As I sat there in my cab I did not notice anybody in the

cab, nobody but the fireman on the back of the tank taking water.

I did not see our head brakeman on that cab at any time.

As the two engines stood there together and as Mr. Groeger started

his train, I did not notice any escaping steam around the engine.

He didn’t unhook his engine to take water; he didn’t cut from

his train. The train was attached to the engine as it stood there

taking water.

[fol. 63] I learned afterward why he didn’t cut off; he had a broken

link hanger and couldn’t reverse his train, so that he couldn’t come

up and back down. The link hanger is the reversing mechanism on

the engine, and is located down around the wheels, between the

' drivers underneath the engine. It is a mechanism like the gear of

an automobile ; if that was out of order you couldn’t go into reverse.

Cross-examination by Mr. Chapman:

Groeger’s engine was taking water at the tower when we got there.

I don’t know whether the head brakeman was on top of the tank

operating the penstock from the water plug or not, but his fireman

was there. At this time, understand, I didn’t know Marshall’s name:

I didn’t know that fireman or I didn’t know their head brakeman’s

name or I didn’t know our head brakeman’s name, because we got an

extra man every day, and the brakeman’s time. as I said, is taken

from the conductor's time slip. That’s why I didn’t ask the extra

man, the brakeman, his name, but if we have a regular man I always

ask him his name. I waited until Groeger got away from the pen-

stock and then our engine took water; that’s why I waited.

J. W. Barker, a witness called by defendant, being first duly

sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is J. W. Barker. I live at New Martinsville, West Vir-

ginia. I was the fireman for Mr. Brookover on No. 100 the | we

a Groeger’s engine at Forest Tower. Mr. Busey was head

rakeman on our train.

When I got up to take water for our engine, up on the tank, I

didn’t notice anything more than the blower was working.

No cross examination.

[fol. 64] J. P. Hix, a witness called by defendant, being first duly

sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is J. P Hill. I live at Clarksburg, West Virginia.

I am employed by the Baltimore & Ohio Railroad Company as a

conductor and was in their employ as conductor of train 100 on the

3rd of September, 1920, bound from Clarksburg to Benwood. W. S.

Brookover was our engineer.

I recall the train stopping at Foster that day. As we pulled into

Foster and our train stopped, I got off the caboose and started to the

telegraph office at the head end of my train. As the train came to a

stop I was riding on the caboose. I got off immediately. As near as

I remember, we had about 52 cars in our train that day.

As I walked up towards the front end of our train along the track,

the engine that Mr. Groeger was engineer of passed me when I got

about 35 cars to the rear end, approximately 35 cars. A car is about

forty feet long. I can walk from the rear end of a train of sixty cars

to the head end in five minutes.

No cross examination.

C. W. Kipyey, a witness called by defendant, being first duly

sworn, testified as follows:

Direct examination by Mr. Kinder:

My name is C, W. Kidney. I live at Bridgeport, Ohio.

I am employed by the Baltimore & Ohio and was in their employ

prior to September, 1920 as fireman.

While working as fireman I had fired on an engine operated by

J. C. Groeger and am acquainted with other firemen who had fired for

Groeger. I was acquainted with railroad men that knew Groeger

while he was running engines or in the service of the Baltimore &

Ohio.

Q. Have you the means of knowing what the reputation of Mr.

Groeger was with regard to the manner in which he operated his en-

gines so far as water conditions are concerned?

A. Yes, sir.

(fol. 65] Mr. Chapman: I object.

The Court: Objection sustained.

Mr. Kinder: Exception. Defendant offers to prove by the wit-

ness, if permitted to answer, that the answer would yes.

Q. What was that reputation?

Mr. Chapman: Object.

The Court: Sustained.

Mr. Kinder: Exception. Defendant offers to prove by the witness,

if permitted to answer, that the witness would testify that Groeger

had the reputation of being a “low water man.” In other words, that

he held the reputation of operating engines with water lower than

safety required.

(Noon recess. )

7—113

C. E. McGann, a witness recalled by defendant, having been pre-

viously sworn, further testified as follows:

Direct examination by Mr. Woods:

I have testified I was master mechanic of the B. & O. Railroad.

The accident occurred at 11:55 a. m. and I arrived at the scene

along about 2:40 p.m. I immediately went to the boiler and made

observations and inspections, and also looked over the machinery

which was standing on the tracks, and sent a report to the super-

intendent of the Wheeling Division of what I found.

(Witness handed Defendant's Exhibit 1 for reference.)

The crown sheet was overheated in an area of forty-six or forty-

eight by thirty-four inches in diameter, covering the highest part of

the crown sheet which was discolored, and showed a very peacock blue

coloring, indicating that the crown sheet had been overheated. The

crown sheet had pulled down and tore loose from the bolts, and tore

at the rear sheet down to about the eleventh row from the center, ex-

tending down to the door collar, around on to the opposite side, tearing

down on the left side sheet diagonally to the mud ring; from the

flue sheet it tore diagonally down the front portion to the mud ri

(fol. 66] on the front and back at the left side. On the right side it

tore near the flue sheet, extending down diagonally to within four

rows of the mud ring, extending back diagonally to the tear in the

rear sheet. The bolts which we found had been broken were not

near the sheet that had tore either on the right or left side, nor near

the crown sheet. The location of the bolts where the crown sheet had

ht pulled loose from were in the highest part of the crown sheet near

and to the flue sheet, the longest elongation of the holes showing in

the fourth row from the flue sheet; all bolts that had been pulled

through the crown sheet were all good sound bolts.

» | There were seven broken bolts in the entire boiler; three bolts on

| the right side, nine rows from the center, one bolt the third row from

' the door sheet, the second bolt the fifth row, the third bolt the seventh

' yow. The crown bolt was four rows from the rear flue sheet located

' on the right side. The bolts on the left side was the fifth row from

the rear sheet, one in the sixth and one in the eighth row, two being

oneen, and fourteen rows up from the mud ring.

my opinion those broken bolts contributed none whatever to the

tear of the crown sheet and the consequent explosion of this boiler.

I examiner the bolts in the boiler after the accident. Defendant's

Exhibits 10 and 11 are the crown bolts received from the crown sheet

of 2541 after the explosion. These were the bolts that were damaged

due to the sheet being overheated and pulling the bolt heads off.

Neither of these are the broken bolts I ref to. These bolts are

hammer-driven radials through the crown sheet. When the sheet

became heated to a cherry red, with the pressure of the steam forcin

down on this sheet, it pulled the heads off of those bolts and back

the sheet down, which allowed the pressure of steam and water to

force against these holes, which pulled the sheet, made the hole ob-

nara eeniniiti een tahiti tae ac Fee AP teens ene ne no ore

Se ee ee || . . Fm . S A, A,

ngs in other words, known as elongation. The force and pressure

of that water and steam on that sheet pulled it down off all the good

bolts, and none of the bolis which were shown as broken were near

the of the sheet that pulled away. These heads of these bolts

are blue, which is an indication of the water being off the bolts. The

= were in good condition, apparently, prior to the time of the

explosion.

ater from a crown sheet, in order for a sheet to fail, will have to

[fol. 67] be heated to sixteen hundred degrees Fahrenheit. The

amount of pressure depends, and the greater the pressure the less the

Fahrenheit. This engine, carrying approximately 160 pounds of

steam, that sheet would have to be around 1,600 degrees Fahrenheit,

and it would take from the time the water left the sheet until the

sheet heated to that degree, approximately fifteen minutes, before the

explosion occurs.

went into the fire-box. The entire circumference of the boiler

and the fire-box underneath were clean. There was some little small

sediment that clung to some of the bolts, but the circumference of the

boiler and the fire-box and mud ring were clean.

A blower on a locomotive is to give draft to the fire when blow-

ing up the fire or when drifting downhill ; when the throttle is closed

on a locomotive the blower is used to take gas and fumes from the

fire-box out through the flues into the smoke box and out into the

atmosphere. It creates a very strong draft.

Assuming steam was escaping into the fire-box and the blowers

were put into operation, it would draw the steam or whatever vapor

was escaping out through the flues into the atmosphere. It would

not he possible to have escaping steam through the fire-box doors if

the blowers were in operation.

The capacity of a boiler of the 2541 type is 2448 gallons of water,

as near as I can remember. The capacity of the tank where the water

is carried is 10,000 gallons. The capacity for each injector when

they are open to their capacity is 4,500 gallons per hour, 9,000 gal-

lons when both injectors are open. The purpose of the injectors is

to take the water from the storage tank and tender into the boiler.

engineer controls these injectors and lets what volume of water

in there he wants to by the water regulating valves. If both injec-

tors were permitted to remain open for five minutes, it would knock

the steam pressure of the locomotive down, say, 160 pounds, to about

120 pounds within five minutes, were both injectors working full.

An engine would not be able to go on with that steam pressure with a

train. You would be able to handle the engine light Dut you would

not be able to handle a train.

Defendant's Exhibit 12. known as Form 1407-C revised, is the

annual locomotive inspection and repair report in accordance with

the Interstate Commerce Commission for the burean of Locomotive

Inspection, When an engine receives the hydrostatic test in any

of our shops this is made out by a qualified inspector and the report

[fol 68[ is transmitted to the Interstate Commerce Commission.

The date of that report ix June 3rd. 1920, covering locomotive 2541,

Baltimore & Ohio. The contents of this report were that the engine

received a hydrostatic test, that is, that pressure is applied to the

boiler twenty-five per cent greater than working pressure in order

to determine the strength of the sheets and the braces on the interior

of the boiler; and sworn to by a qualified inspector under oath. This

report also carries, “All the flues removed and new flues applied.”

That test was made June 3rd, 1920. The law also requires that

when all flues are removed the entire circumference of the boiler

shall be cleaned from all sediment and scale. This is also passed by a

qualified inspector before the report is completed. Also all flexible

stay bolts were hammer tested, all the caps were removed from flex-

ible stay bolts; the hydrostatic pressure of 257 pounds was applied

to this locomotive; the condition of the crown stays and stay bolts

were good; the condition of the firebox sheets and flues were good;

the condition of the arch tubes were good: the throat braces were

good; the back head braces were good; and the condition of the

front flue sheet braces were good.

I am acquainted in a general way with the use of fusible plugs on

locomotives. The Southern Railroad, during my time on that road,

used fusible plugs. There was quite a number of railroads that did

not use them at all. I have inquired lately as to the Pennsylvania

System and I understand that they do not use them.

Cross-examination by Mr, Chapman:

I have made no personal inspection of any of the Pennsylvania

Company’s boilers with reference to fusible plugs. The statements

I have made is something that has been told me.

Mr. Chapman: Then I ask that that be stricken from the record.

The Court: If he has no personal knowledge on the subject it may

be disregarded.

I am familiar with the track prior to that point where this explo-

sion occurred, on the way from Moundsville to Brooklyn Junction.

It is level at the point of the accident, and straight; it might be a

little curvature there but very small, if there is any.

[fol. 69] Mr. Kinder: That’s all. With the offering of the various

exhibits and this model and these bolts, we rest.

The Court: The exhibits which have been identified and intro-

duced will be admitted. I do not understand that there is any

objection.

Thereupon the plaintiff rested.

Thereupon the defendant rested.

Thereupon defendant renewed its motion made at the close of the

plaintiff's case, to arrest the testimony from the further consideration

of the jury and to direct the jury to return a verdict for the defend-

ant; which motion was overruled by the court ; to which ruling of the

court defendant then and there duly excepted.

Se vei ae ies ler ears wae! a 2d eee

i ce

The above and foregoing, together with the exhibits attached

hereto and made part hereof, was all the evidence offered and received

on the trial of the above entitled cause.

Thereupon, after arguments to the jury by counsel for the re-

spective parties, the Court charged the jury as follows:

Court’s INstrucTIoNs To JuRY

This action is brought by the administratrix of John C. Groeger,

deceased, against The Baltimore & Ohio Railroad Company. Plain-

tiff seeks to recover such damages as have been sustained by the

widow and children of the decedent as a result of his alleged wrong-

ful death. It is alleged that this wrongful death is due to the fail-

ure of the defendant to comply with certain provisions of the Fed-

eral Employers Liability Act, of April 22nd, 1908, and its amend-

ments, and particularly the Federal Boiler Inspection Act, and its

amendment of 1915. These acts were made for the protection of the

life and limb of employees of interstate railroad carriers while the

employees of these carriers are engaged in interstate commerce. It

is admitted here in this case that the decedent and the defendant

company were, at the time the decedent met his death, engaged in

interstate commerce, and the rights of the parties are therefore gov- ,

erned and cantrolled bythe provisions of those several acts so far

as they are applicable to the facts of this case,

The Plaintiff is entitled to recover only in the event the decedent

met his death due to the negligent or msouaees conduct of the

defendant. That is a question of fact and a question of law. It is

[fol. 70] for you, under the law as I shall state it to you, to deter-

mine what the facts are, particularly the issues of fact as I shall

state them to you and submit them to you for your decision. In

the determination of those issues there is no place for any feeling

of sympathy or prejudice. It is essential that you shall weigh and

determine those issues of fact, and that you shall perform your duty

here in an impartial and impersonal manner, regardless of who the

parties to this action may be end regardless of the consequences

of vour verdict upon those parties.

The plaintiff is not entitled to recover simply because of the fact

that there was a boiler explosion and John C. Groeger met his death.

The defendant’s conduct is tot presumed to have been negligent or

wrongfal because of the fact that there was this boiler explosion.

That explosion may have been due to causes for which the defendant

was not to blame, either under the law of negligence or under the

Boiler Inspection Act, and therefore the burden is cast upon the

plaintiff to satisfy you by a preponderance of the evidence that this

boiler explosion which caused the decedent’s death was due to the

negligent or wrongful conduct of the defendant: and that burden

must be sustained by what we call a preponderance of the evidence.

On the other hand, there is no presumption that the decedent

was himself negligent in the operation of a locomotive engine which

caused the explosion. He will be presumed to have been exercising

ordinary care for his own safety. But, as I say, inasmuch as the

plaintiff is here seeking a recovery based upon the negligent or

wrongful conduct of the defendant, and in pet as a no

inference of negligence or wrongful conduct to be drawn from

the fact that there was an explosion and the resulting death, the

oagng ~ must sustain that burden by the evidence here produced

y a fair preponderance, and must prove that the defendant’s con-

duct was wrongful or negligent in some one or more of the respects

charged in the plaintiff's petition.

Many of the facts are not in dispute. It is admitted, as I have

said, that the decedent was emploved by the defendant and was in

the performance of his duty as such an employe at the time he met

his death. It is also conceded and admitted that the plaintiff's

decedent and the defendant were engaged in interstate commerce

at the time of this boiler explosion, and because therof the rights of

the parties are controlled by these Federal Statutes to which I have

[fol. 71] made reference. It is also admitted that the decedent met

his death as a result of the explosion of the locomotive boiler on

engine 2541 of the defendant, on the 3rd day of September, 1920.

There is no dispute that the decedent as locomotive engineer took

charge of this locomotive engine at Holloway, Ohio, on the morning

of the 3rd of September, and operated it throughout the forenoon

of that day, and that the explosion took place along or about 11:55

A. M. of that day.

The controversy between the parties is as to the cause of the ex-

plosion. The plaintiff here asserts that this explosion was due to

a failure of the defendant to comply with some of the provisions of

the Boiler Inspection Act requiring certain things, which I shall pres-

ently state to you, and that its failure so to do was the direct and

proximate cause of the ——— and of the resulting death of the

plaintiff decedent. The defendant denies this. It is around that

question of asserted liability and wrongful conduct made by the

plaintiff, and the denial thereof made by the defendant, that the con-

troversy upon the facts arises.

Now, in what respect does the plaintiff charge and claim that the

defendant was negligent or did not comply with the Boiler Inspection

Act? Plaintiff makes various claims upon that subject, some of

which I am withdrawing from your consideration because, in my

view, there is ng substantial evidence tending to support the plain-

tiff’s assertiOns or charges of negligence, and unless there is some

substantial evidence so supporting them, it becomes a question of

law which it is my duty to determine. It is only when there is a

conflict in the evidence that there becomes a question of fact to be

tried by you.

Plaintiff claims that the defendant was guilty of negligence and

carelessness in causing, permitting and allowing a dangerous, unsafe

and insufficient condition to be and remain in and about the crown

sheet of said boiler, whereby it was weakened, defective, unsafe and

leaky, and that this was due to having previously been overheated

and to the breaking of certain stay and crown bolts therein. I am

submitting it to you in my own words, as I understand the plaintiff’s

a rena eh Sten eRe Sane Ne

contention, and not in the language of the claims made in the

plaintiffs petition.

Plaintiff further charges that the defendant was negligent and

careless in causing and permitting said boiler and appurtenances

[fol. 72] thereto to be used in interstate commerce when the same

were not in proper and safe condition for operation in the service to

which they were put, without unnecessary peril to life and limb, be-

cause the defendant had failed and neglected to equip said boiler

with a fusible plug to prevent the explosion of said boilerf Certain

other charges are made by the plaintiff, namely, that unfit and im-

proper water was furnished to be used by said engine, and that this

water contained foreign matter which caused it to foam. I am with-

drawing that averment of negligence of wrongful conduct from

your consideration because, in my judgment, there is no substantial

evidence here tending to show that unfit _and_improper water con-

taining any foreign substance which would cause it to oam was, in

fact, furnished or used.

Plaintiff also charges that defendant allowed to be placed on said

engine a water glass indicator which indicated that the boiler had

water in it at the time it did not have — in it, and am withdrawing

that averment of negligence from your consideration, because there

is no evidence tending, to support’ that any such water gauge was

so furnished and weed 2 The other averments of negligence, namely,

that the defendant failed to furnish the decedent with a reasonably

safe place to work, and that it was negligent and careless in failing

and neglecting to make adequate and sufficient inspection of said

engine and its equipment, are related to the two averments of

negligence which I am submitting to you for consideration. If the

defendant failed, as charged, in either one or the other of those

allegations of negligence that I am submitting to you, then it would

have failed to have provided a reasonably safe place for the plaintiff

to perform his labor; but if it did not so fail, then there is nothing

in the averment that the defendant failed to furnish a reasonably

safe place to work. And likewise as to the failure to make adequate

inspection. If the plaintiff failed in one or the other or both of the

respects as charged and as I am submitting, if you find whether

or uot it did from the evidence, then the fact that it may have in-

spected it, and no matter how careful that inspection might have

been, it would, nevertheless, be liable because of its failure to dis-

cover these defects, or, if it discovered them, of its failure to correct

them.

rr brief, gentlemen, one Seats of fact here come down concretely

to these two propositions, the two issues asserted by the plaintiff and

denied by the defendant’ .

[fol.73] (1) Did the defendant permit or allow a dangerous, un-

safe and insufficient condition to be and arise in and about the crown

sheet of said boile whereby it was weakened and _hecaiie detective,

unsafe and leaky ;_whether that was due to any or whatever cause,

(etoion ter stay-bolts or other causes, and if so) was the boiler

explosion thereby caused in whole or in part./ Plaintiff asserts that,

and the defendant denies it. It will be for you to say under the

Raney

evidence here, gentlemen, and the law as I state it to you, what the

fact is in this respect.

(2) It being conceded that the defendant had failed to install and

equip this locomotive engine with a fusible safety plug, it will be

for you to say whether or not the standard of duty imposed by law

upon the defendant, to see that any locomotive engine propelled by

steam in use on its road in interstate commerce was in a proper con-

dition and safe to operate in the service to which it was put, that the

same might be wailed in the active service in moving traffic with-

out unnecessary peril to life or limb, "pe Hialated by the failure to

equip this j ith a fusible safety plug. Plaintifasserts that it

was a violation of the duty imposed by Taw upon the defendant not

so to equip its en

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