Transcript of Record — Moore v. Chesapeake & Ohio R. Co.
Supreme Court brief1934
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SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1933
No. 173 —o ze
Bey JAMES B. MOORE, PETITIONER,
. 3 U8. ae.
THE CHESAPEAKE & OHIO RAILWAY COMPANY
ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT
COURT OF APVEALS FOR THE SEVENTH. CIRCUIT
' INDEX’
' ~ Page
Record from. district court of the United Stites, Nerthers Indiana.. 1
PORGR, covevcccvesccsceceee Op cdcccevecncoeveves: seeveceecere a
Complaint .... ieueaneabe ci aaa none Oe ies Oe amie 2
Plea in abatement denying the jurisdiction of the court. Geveves 13
Application for leave to amend plea in abatement........++-++- 15
Amended plea in abatement:...........c0eceeeceeveees geudeven 17
Plaintiff's demurrer to plea in abatement.................+.-4- 19
Answer in denial........ dahedbaden dude ikenranebeihes Seiican 20
Minute entries of trial....... SdRSPORESEDEteseeee ser ssece a
" Motion .of defendant to direct verdict and overruling of same.. 21
Verdict 2. e cece e cece cece ec eeeeeeevene iedeeeedesecososesueses 22
- Agyliention os defendant for leave to file motion for new trial,
GRE., BE GUGMEMG OF GONG. 6 oc ccccccccccccecesceecesecoccece 23
. Motion for new trial......cccsscccccccccess PEL EIES, CA REO 23
POS ce ce cvencceccucsedeqesveeeces WP OTTETET TTT TTP TrTT Tee 28
ee a ec asapusensienducwseves 28
y PD. cccneéeedvedesbbecodesedcees di cneeeseeeeesees 28
- ° Defendant’s Exhibit 1—Deposition of Minta A. Moore...... 23
Defendant’s Exhibit 2-A—Deposition of Lee Moore..~...... 30
i Defendant’s Exhibit 2-B—Deposition of Mrs. Ida Lewis....- 31
‘_ Defendant’s Exhibit 3—(Reference to)—Certified copy of
application of plaintiff for an Ohio automobile license... 31
‘Defendant’s Exhibit 4—(Reference to)—Certified copy
certain proceedings in the common pleas court of Scio oO
County, Ohio............. Sidculibelidicesanees as. VO
Jupp & DETWEILER (INC.), PRINTERS, WASHINGTON, D. C., OcToBER 26, 1933
a
Defendant’s Exhibit 5+-Certificate of clerk of State corpo: — :
ration commission of Virginia........ aueeuegeuesousenss
Testimony of Flora K. O’Brian
James B. Moore
John Lochmonday .
James B. Moore (recalled)........- Weccesest
. Ruling on, plea in abatement ;
Plaintiff's
cars
same
Testimony of John’ ‘Robbins
Plaintiff’s Exbibits 18-a to 35— (Reference to).
Testimony of Ronald Stagg :
ef Rae: “TEES
James B, Moore (recalled)
T. C. Irwin
_Emery Beckhardt............. gepecececosces :
W. H. Workman
W. F. Conley
Plaintiff’s Exhibit 39—Statemeént of W. F. Conley...
Testimony of C. R. Callahan
Defendant’s Exhibits 9 to 12— (Reference to)
Testimony of J.C. Dodgion......... Mis taabeavvseusevenaa as
Defendant’s
—— = ie ee ar ee
Ed F. Perry..
INDEX
7-8-9-10— (Reference to)
ewe reese eesed PUP COEHT HCO EOS EF ¢
ee ee eee eeeeeseseme SCD OIE SLOPED OMNI 2 EIT
S requested instructions. iidiweeiedews 7
Charge to the. jury... es
eee er eer ee eee eee ee eeereeeeeeee
ee
Exhibit Noa '4-— (Reference
license issued to ‘plaintiff on February 24, 1931
Stipulation as to certain facts
Plaintiff's Exhibit No, 5—Deposition of J. G. Rayburn...,
Plaintiff's Exhibits Nos.
Plaintiff’s Exhibit No. 11—Deposition of C. R. Erhman....
Plaintiff's Exhibit No. 12—Deposition of John ‘A. Robbins. .
Plaintiff’s Exhibit No. 13—Switching report for car repair
tracks, dated November 29, 1930
‘Plaintiff's Exhibit No. 14—Switching report for car repair
* tracks, dated November 28, 1930
Testimony of James B. Moore
Roland R. Schulz
‘Dr. Edmund Van Buskirk
Plaintiff's Exhibit No. 17— (Reference to)—Photograph ‘
right ROD GE PR cc wosvccecceccesevecsceses eieTeeees
Plaintiff’s Exhibit No. 18—Bapement of origination potas of
eevee eres esae
to)—Automobile
eee e eee ee eee eerste eeeseeeeeee
eoee eee eee eee eewen erates
eee eee eee eee eee eee eens we
eevee eee eee eee eee emeseeeeerece
eee eee e ee eeeeee
eeoerew ewer eeeesneeeee
ee
eee eee eee reer eeeee
eee eee eee eee ee eeeeeeeeeseeseeeees
See ewe ee ee eee are ree eeeesees
FORO SPCEC CCH CHE CHCEHO CHOBE OPFECES
eee eee eer eee eeeeeeee
eeoeerere eee eee ee ee eeeseeeesesees
eee ee eee eer eee eeeeeeesraeeeseee
coer eee eee ees eeseeeeeeeee
a "ee eccresapecseres
‘ James B. Moore (recalled)........... hee
Motion of defendant for directéd verdict and overruling of
Page
49
59
a
INDEX iil
7 Page
Motion for ew trial and overruling of same.....;---- see OS
. Statement relative to the arent of depositions, eS Seer 110
- Certificate of judge......- eesbeooere pesaqecedees eesoucees - 112.
‘ Ordér and stipulation that original exhibits “ trasiemsttted to
United States circuit court of appeals. Soaterecesevegdsaseeee 112
Petition for appeal and allowanceé......-- eevee saccevccee cocese S08
Assignment of CLTOPS. cece ccc ccccccccccecccecess Deovecvececee 114
Appeal bond.......+++++++: feenneeees Sc eseecsdveseeeeeweneees 120
Precipe for transcript of record......-++++++: fe eeceeccccesece 122°
Notice of filing precipe..... ecesenevaia dasnncuauwesaseteses 123
Certificate of Clerk... se eee cece eeeees . shnaecuoseseasuneest wees 128
Citation- and service.....- staneanenecndnsscecestegspeteen eres 125
Clerk’s ‘certificate........eeeeeee ee eeees acces sit pee awhee 127
Proceedings in United States circuit court of appeals, seventh
CHOU - occckcccccccccccceteccegaetecccecseasseccoosersoorers coco * Se
CuetbeR seccseeses i eseedacsvavesecss? obeoued Poeveeweose 129
Opinion, Sparks, JiwiTeecaccccvcccccvcscooseves caxesassinesinasd . 130
Judgment «0+. eee eseeedere sree ees iciackeees pene aiaene aie ee
Motion for order: staying mandate Mer eererre Tye Seanecosceussusdes 140
_ Order staying mandate.........+--+++ CPT TT Ty Gexcnead sesvcecee 8
Precipe for transcript of record......s+: Tae RY nies 142
Clerk’s Certificate... ...c.. cece cece cece reece eneeecnceeeeesererees - 143
Order allowing certiorari....... ‘Meine peer? iesenencceesueesenss 145
é
1: .. °* In tHe UnIrTep STaTEs Disrercr Courr - Plae’
Northern District of Indiana
Fort Wayne Division
Pleas and Proceedings had before the Honorable ' Thane
W. Slick, Judge of the United States. District Court, for the
Northern District of Indiana, at a term of said court begun
and held at the United States Court House, in the City of —
_ Fort Wayne, Indiana, to wit:
7 James B. Moore» - 3 eter ¢
Rio ws. os
_ The Chesapeake and Ohio Raifw WA No. 402—At Law
. - Company, a Corporation. :
¥
¢
’ Be it-remembered that heretofore on the 15th day of Janu-
ary, 1931, the above named plaintiff by his attorneys, Teeter
and Hartzler, of the City of Fort Wayne, Indiana, filed m the
office of the Clerk of this court, his complaint in the above
entitled cause, which complaint reads in ‘the words and fig- .
ures following, to wit :_
an. 15,
QQ." Complaint.
bo
(* © (Caption) ° *
COMPLAINT
Paragraph I N
Comes. now, the plaintiff, JameseB. Moore, in the above en-
titled cause and for his first paragraph of complaint herein
against the defendant, The Chesapeake and Ohio Ralway
Company, says, that said defendant, The Chesapeake and
Ohio Railway Company, at all times mentioned in this com-
plaint was and ‘now is a corporation duly organized and act- -
ing as such under and by virtue of-the laws of the State of
Virginia and was engaged at all times herein mentioned in
the business of operating a steam railroad as a common car-
rier engaging in interstate commerce in and between and
through the States of Virginia; West Virginia, Ohio, In-
diana and Illinois; and, was doing business within the terri-
- torial limits of this, the Uyited States District Court for the
Northern Distyjct of Indiana, Fort Wayne Division, at the
time of the commencement of this action, in which District
and Division thereof aforesad the defendant also operated its
railroad at the time of the commencement of this action.
Plaintiff says that on November. 29th 1930, and at the time
of the occurrence of the grievances hereinaiver complained of,
he was employed as.a yard switchman by, and: was at work
for, the defendant and engaged with the dedfendant in inter-
_ state commerce at the Russell Yard of the defendant lo-
3’ cated at Russell in the State of Kentucky. That plain-
tiff brings this action against the defendant under and
_ by virtue of an Act of Congress of the United Staies, ap-
proved April 22nd, 1908 and Amendments thereto, and which
Act is commonly known as the Federal Employers Liability
Act, and under a certain Act of the Congress of the United
States known as the Safety Appliance Acts and a se
and Orders lawfully promulgated there under by the United
States Interstate Commerce Commission; That said Laws of
the United States and Rules: and Orders aforesaid were in
full force and effect at all times herenafter mentioned; that
‘said Laws of the United States give to this Court jurisdiction
. to hear and determine this cause of action as herein set forth.
Plaintiff says, that at all times herein mentioned, the de-
fendant maintained and operated a yard at Russell, Ken-
tucky, known as the Russell yard for the purpose of making
Complaint.«._ 3
up,its trains, classifying cars, and inspecting for repairs the
cars used on its railroad; and also maintaingd-a track in said
yard. Known as Shop Track No. 2 for the, purpose of placing
thereon the cars used on its railroad and making ‘‘running’’
repairs thereto in order tg enable said cars to continue their:
movements in inter-state commerce. That said-Shop track
extended in a.general east and west direction.
Plaintiff further says that on or about November. 29th
1930, in the morning thereof, pursuant to the order and di-
rection of the defendant, and while engaged in the regular
course of his employment with the defendant,.he was assist-
ing in switching freight cars from off the Shop Track easterly
thereover and onto the defendant’s classifying tracks in said.
¥ard for the following purposes, to wit :—placing cars into
trains so that said cars could continue their original move-
ments in inter-state commerce, which original movements in
inter-state commerce were temporagily interrupted at said
Yard for the purpose of. making ‘‘running’”’ répairs to said
cars: placing cars into trains for the purpose of moving said
cars from Russell, Kentucky to points in the State of West
‘ Virginia, Virginia and other States’ of the United States:
placing cars in trains for the purpose of continying the
4 movements of said cars in inter-state commerce from
Ohio, Illinois, Indiana and other States of- the United -
States to their destination in the State of Kentucky, and for
the further purpose of clearing said Shop Track No. 2 of
the aforesaid cars in order that plaintiff could assist his crew -
in the movement of other cars from track No. 18in said Yard
to said Shop. Track No. 2, which latter movement was to fol-
low immediately upon the clearing of the cars off of the Shop’
Track as aforesaid, and which. movement of the cars on said
No. 18 track onto the Shop Track was for the purpose of
_ making ‘‘running’’ repairs to said cars in order that said
ears could continue their original movements in inter-state
commerce from Ohio, Indiana, INinois, Virginia, West -Vir-
ginia, Kentucky, and other States of the United States to
their destinations. “4 |
Plaintiff says that the cars on said Shop Track No. 2 were’
being switched easterly thereover. That in the a
of his duties he undertook to. uncouple the head /or lead car
from the rest of the cars by operating the ‘‘Uncoupling-
Lever’? of the car coupled behind the lead car. That said
‘‘Uncoupling-Lever’’ was a part and appurteriance of the
Coupler of said’car. That said ‘‘Uncoupling-Lever’’ was of
’
i - Complaint, ,
~~
the type known as a ‘‘Push-Down’’ Uncoupling-lever. “That
the normal, ordinary and usual way to use said lever was
.to take hold of the handle of said lever with one hand and.
by manual foree applied thereto push the handle of the lever
down, which in turf would ordinarily, usually and normally -
pull up the ‘‘Lg¢k-block,’? also commonly kfown -as-. the
‘‘pin,’’ up out gf&tne connected couplers so as to release the
coupler knuckles, thereby disengaging the couplers, and af-
fecting an uncoupling of the cars in-the normal, usual and
ordinary way. That, while said cars were in motion, plaintiff
did take hold of the handle of the lever aforesaid with one
hand, and’ did by the application of manual force thereto
push down said lever handle in the usual, ordinary and nor-
‘mal way aforesaid, but that said tise and opgration of the
lever handle and lever aforesaid failed to pull up the lock-
block or pin so as- to release the knuckles of the couplers,
failed to disengage the couplers, and failed to effect an un-
coupling of the cars. That when plaintiff pushed down
5 as aforesaid ‘the handle of the lever, it dropped more
than fifteen inches though operated by the plaintiff in the
normal, usual and ordinary way, and said handle further de-
scended to-a~point less than eighteen inches from the top of
the rail without engaging the ‘‘lock-block’’ so as to release
the knuckles, and said lever handle further descended in-
ward towards and over the wheel of the car. That said lever,
its parts and appurtenances, were bent, twisted and defec-
tive in condition, and prevented and interfered with the nor-
mal, usual and ordinary funotioning of the coupler of said
ear, and further elegy ys lock-block from being pulled
up out of the couplers so.S to release the knuckles and dis-
engage the couplers. That the descent of the lever handle,
by, reason of the bent, twisted and defective condition and
placement ofthe lever and its parts- and appurtenances,
caused the plaintiff’s body to go between the end of the cars
while plaintiff was undertaking to effect an uncoupling of the
cars in the nrmal, usual and ordinary way, as aforesaid, and
by reason thereof and also by reason of the descent of the
handle to less than eighteen inches above the rail as afore-
’ . said, the plaintiff was caused to become unbalanced and his
right hand and arm to be caught by and under the wheels of
the car and to be crushed and so mangled as to: require the
‘ amputation thereof, and this plaintiff to be further injured
in his body and person as hereinafter more fully described.
Plaintiff says that the direct and proximate cause of his
injuries as hereinafter set out was the unlawful and negligent
”
Complaint. 3 See
a" of the defendant in the matters and respects as fol-
Ows :-— :
1. Said defendant used and permitted to be used on
‘its railroad aforesaid a car equipped with a ‘‘push-
doWn’’, type of uncoupling lever,-a part and appurtenance
of the coupler, the handle of’ which lever when operated in the
ordinary, usual and normal way descended to a point less
tha eighteey inches from or above the top of the, rail with-
out causing or engaging the ‘‘lock-block’’ or pin to: release
the knuckle. Re eres:
6 2. Said defendant used and permitted to be used on
its aforesaid railroad a car equipped with a ‘‘push-
down’? type of uncoupling lever, a part and appurtenance of °
the coupler, the handle of which lever when operated in the’
usué], normal and ordinary way dropped more than fifteen
inches over all. :;
3. Said defendant unlawfully used and permitted to be °
used on its aforesaid railroad a car whose Uncouplitig Lever,
ifs parts and appurtenances, were bent, twisted and defective
in condition and placement, ‘and which by reason of the afore-
said, and when used in the normal, usual and ordinary man-
ner, interfered with and prevented the lock-block or ‘pin from
or #eleasing the knuckle of the coupler and, prevented an
unvoupling of the cars in the usual, normal and ordinary
way. . °
4. Said defendant unlawfully used and permitted to be.
used on its aforesaid railroad a car whose upcoupling lever,
its parts and appurtenances, were bent, twisted and defec-
tive in condition and placement, and which by reason of
the aforesaid, and when used and operated in the usual, nor-
mal and ordinary way, prevented the coupler from being
uncoupled without the necessity of a man going between the
ends of the cars in order to affect said uncoupling. ay
5. Said defendant unlawfully used and permitted to be
used on its aforesaid railroad a car, the coupler of which
when coupled to another car, could not be uncoupled in the
usual, normal and ordinary way without the necessity of a.
man going between the ends of the cars,.to effect said un-
coupling. . | |
6. Said defendant unlawfully used and permitted to be
used on its aforesaid railroad a car not equipped with cou-
plérs coupling automatically by impact and which can he un-
coupled without the necessity of a man going between the
ends of the cars. ,
Plaintiff says that as a direct and proximate result of the~
oe
OOO A
~~ —_
6 : Complaint.
negligence and unlawful conduct of the defendant, as here-
-inbefore set out, he was caused to be injured in his body and
person in the following respects ;—an amputation of the right
hand and forearms, said amputation consisting of and includ-
ing the lower third of the forearm; a crushing and man-
7 gling of the bones, muscles, ligaments, nerves and tendons
' of the right forearm, with a resultant condition of pain,
tenderness and ‘swelling in saideright forearm. That said *
paid is constant, aching in character, radiates. toward the
right shoulder and ig more intense when said right forearm
is moved or sins: that plaintiff has wholly lost the
use of his right arm and hand: that there is being formed
what is known as neuromata on the ends of the nerves. That“
amputation tumors are developing 6n the ends of the sev-
ered nerves of the right forearm: that there is further de-
veloping in said right forearm and bones thereof a condi-
tion of catocmyelitis, with a resultant destruction of the said
bone and a‘spreading, thru the osseous system, of said con- -
dition of cateomylitis to the other bones of the body, produc-
ing necrotic areas of bone complicated ,with abscesses and
_ septicaemia; That plaintiff has been caused a severe shock
and injury to his entire nervous system; that his aforesaid
injuries are permanent in character and that with reason-
able certainty he will be caused to suffer paid in the future
therefrom; that his aforesaid injuries have and will cripple .
him for live. ‘ ‘
Plaintiff says that at the time of the occurrence of the mat-
ters complained of he was a healthy vigorous man, working.
and able to work, earning and able to earn the sum of \ap-
proximately two hundred dollars ($200.00) a month at his
occupation of a railroad switchman. That since his afore-
said injuries he has been unable to*Work and earn money,
and will with reasonable certainty be wholly incapacitated in
his ability to perform the work of a switchman or any other
occupation and earn money in the future. That he will be
forced to expend moneys for medical care and treatment of
his injuries in the future, the exact amount of which plain-
-.-tiff is unable to state at this time.
Wherefore plaintiff, having been damaged in his‘ body and.
person and in his earning capacity in the sum of seventy
seven thousand six hundred dollars ($77,600.00), asks and |
prays judgment against the defendant, The Chesapeake and _
Ohio Railway Company, in the sum of seventy seven
8 thoysand six hundred ($77,600.00) dollars, and all other
and proper relief in the premises. .
ant
Complaint. . 7
| a3 |
Paragraph II
Comes now the plaintiff, James B. Moore, in the above en-
_titled cause and for his second paragraph of complaint here-
in against the defendant, The Chesapeake and Ohio Raiway
Company, says, that said defendant, The Chesapeake and -
Ohio Railway Company, at all times mentioned in this com-
_plaint was and now is a corporation duly organized and
acting as such under and by virtue of the laws of the State
of Virginia and was engaged at all times herein mentioned
in the business of operating a steam railroad as a common
carrier engaging in interstate commérce in and between and
through the States of Virginia, West Virginia, Ohio, Indiana
and Illinois; that the plaintiff is a resident of the City of
Fort Wayne, in Allen County in the State of Indiana; and
is a citizen of the State of Indiana. That the amount in con-
troversy herein exceeds the sum of three thousand . ($3000.00)
dollars exclusive of costs and interest. That this is an ac-
tion between the plaintiff, a citizen of the State of the State
of Indiana, and the defendant, a citizen of the State of Vir-
ginia; that at all times herein mentioned and at the time of
the commencement of this action, this defendant operated its
railroad and did business within the territorial limits of this
the United States District Court for the Northern District of
Indiana, Fort Wayne Division. .
Plaintiff says that on November 29th 1930, and at. the time
of the occurrence of the grievances hereinafter complained
of, he was employed as a yard switchman by and was at work
for the defendant and engaged with the defendant in intra-
state commerce at the Russell Yard of the defendant located ~- i
at Russell in the State of Kentucky. “That plaintiff brings
this action against the defendant under and by virtue of an
Act of the Congress of the United States commonly known as ©
the Safety Appliance Acts and, the Rules and Orders promul-
gated by the Interstate Corhmerce Commission of the.
9 United States and also under the Laws of the State of —
Kentucky in which State, to-wit Kentucky, this cause of
action arose: That said Laws of the United States and Rules
‘and Orders aforesaid and Laws of the State of Kentucky,
which Laws of the State of Kentucky are hereinafter set out,
were in full force and effect at all times hereinafter men-
tioned; That said Laws of the State of Kentucky, in full force
and effect and governing the rights of the partiesshereto at
the time of the matters complained of herein, are as follows:
-
»
8 ¢ | og: Com plaint.
Sec. 82 Ob-1. Railroads liable for injury or death of em-
ployees due to. negligence.
That every common carrier by r raijroad while engaged in
commerce in this state shall be liable in damages to any per-
son suffering injury while he is employed by such carrier in
such commerce, or in case of the death of such employee, to
his or her personal representative for such injury gr death
to such employee resulting in whele or in part from the negli-
gence of any of the officers, agents; or employees of such car-
rier, or by reason of any defect or insufficiency, due to its
negligence in.its cars, engines, appliances, machinery, track,
‘roadbed, doeks, boats, wharves or other sateen (March
26, 1918. ¢ 52, p. 153, See. |
Sec. 820b-2. Contributory negligence pleaded in diminu-
tion of damages; not competent where safety statute violated.
In all actions hereafter brought against such common car-
rier by railroad, or by virtue of,any of the provisions of this
act to recover damages: ‘for personal injury to any ‘employee,
or where such injuries have resulted’in his death, the fact
- that the employee may.have been guilty of eontributory negli;
gence shall not bar a recovery, but the damages shall be di-
minished by the jury in: proportion to the amount of negli-
gence attributable to such employee; provided, that no such
employee who may have been injured or killed shall be held
to have been guilty of contributory negligence in any case
Where the violation of such common carrier of any statute,
state or federal, enacted for the safety of employees contrib-
uted to the injury or death of such employee. (Id. See. 2.)
Sec. 830b- 3. Employee does not assume risk where ‘safety
statute is violated.
That in any action brought against any common carrier by:
railroad under or by virtue of any of the provisions of this
act to recover damages for injuries to, or the death of, any
employee, such employee: sliall not be held to have assumed
the risk of his employment-in any case where the. violation by
such common carrier of any. statute, state or federal, eriacted
for the safety of employee, contributed to the injury or death
of such employee. (Id. See. 3)
_ Plaintiff says, that at all times herein mentioned, the de- °
fendant maintained and operated a yard at Russell, Kentucky,
known as the Russell Yard for the purpose of making up its
trains, classifying cars, and inspecting for repairs the cars
used on its railroad; and also maintained a track in said
10 yard known as Shop Track No. 2 for the purpose of
placeing thereon the cars used un its railroad and mak-
Complaint. : 9
ing ‘‘running’’ repairs thereto in order to enable said cars
to continue their movements in. intra-state commerce. That
said Shop track extended in a general east and west direction.
Plaintiff further says that on or about November 29th,
1930, in the morning thereof, pursuant to the order and di--
rection of the defendant, and while engaged in the, regular -
course of his employment with the defendant, he was assjst-
ing in switching freight cars from off the Shop Track east-
erly thereover and onto the defendant’s classifying {racks in
said Yard for the following purposes, to wit: placing cars
into trains so that said cars could continue their original
movements in the State of Kentucky in intra-state commerce,
which original movements in intrastate commerce were tem-
porarily interrupted at said Yard for the purpose of making
“running”? répairs to said cars; placing cars into trains for -
the purpose of moving said cars from Russell, Kentucky to.———
other points in the State of Kentucky; and for the further -
purpose of clearing said Shop Track No.2 of the aforesaid
cars in order tkat plaintiff could-assist his crew in the move-
ment of. other cars\from track No. 18 in said Yard to said
Shop Track No. 2, which latter movement was to follow im-
mediately upon the ¢learing of the cars off of the Shop Track
as aforesaid, and which movement of the cars on said No. 18 -
track onto the Shop Track was fot the purpose of making
‘‘running’’ repairs to said cars in order that said cars could .
continue their original movements in intra-state commerce,
in the State of Kentucky. 7
Plaintiff says that the cars on said Shop Track No. 2 were
being switched easterly thereover. That in the regular line
of his duties he undertook to uncouple the head or lead car
from the rest of the cars by operating the ‘‘ Uncoupling-
Lever’’ of the car coupled behind the lead car. That said
‘‘Uncoupling-Lever’’ was a part and appurtenance of the >
Coupler of said car. That said ‘‘Uncoupling-Lever”’’ was of
the type known as a ‘‘Push-down’’ Uncoupling-Lever. That
. the normal, ordinary and usual way to use said lever was to
take hold of the handle of said lever with one hand and by
manual force applied thereto push the handle-of the lever
: down, which in turn would ordinarily, usually and
11 normally pull up the ‘‘Lock-block’’, alsé commonly known.
_ as the ‘‘pin’’, up out of the connected couplers so as to
release the coupler knuckles, thereby disengaging the couplers,
and effecting an uncoupling of the cars in the normal, usual
and ordinary way. That, while said cars were in motion,
«
10 | a Complaint.
plaintiff did take hold of the handle of the lever aforesaid .
with one hand, and did by. the application of manual force
thereto push down said lever handle in the usual, ordinary
and normal way aforesaid, but that said use and operation
of the lever handle and lever aforesaid failed to pull up the
‘*Lock-block”’ or ‘‘pin’’ so as to release the knuckles of the
couplers, failed to disengage the couplers, and failed to effect
an uncoupling of the cars. That when plaintiff pushed down
as aforesaid the handle of the lever, it dropped more than.
fifteen inches though operated by the plaintiff in the normal,
usual and ordinary way, and said handle further descended
to a point less than eighteen inches from the top of the rail
without engaging the ‘‘Lock-block’’ so as to release the
knuckles, and said leve® handle further descended inward
towards and over the wheel of the car. That said lever, its
parts and appurtenances, were bent, twisted and defective in
condition, and prevented and interfered with the normal,
usual and ordinary functioning of the coupler of said car, and
further prevented the ‘‘lock-block’’ from being pulled up out
of the couplers so as to release the knuckles and disengage
the couplers. That the descent of the lever handle, by reason
of the bent, twisted and defective condition and placement of
the lever and its parts and appurtenance, caused the plain-
tiff’s body to go between the ends of the cars while plaintiff
was undertaking to effect an uncoupling of the cars in the
normal, usual and ordinary way, as aforesaid, and by reason
thereof and also by reason of the descent ef the handle to
less than eighteen inehes above the rail as aforesaid, the.
plaintiff was caused to become unbalanced and his right hand
and arm to be caughf by and under the wheels of the car and
to be crushed and so mangled as to-require the amputation
thereof, and this plaintiff to be further injured in-his body
and person as hereinafter more fully described.
Plaintiff says that the direct and proximate cause of
-< 42 his injuries as hereinafter set out was the unlawful and
negligent conduct of the defendant in the matters and
respects as follows:
' 1. Said defendant used and permitted to be used on its
railroad aforesaid a car equipped with a ‘‘push-down’’ type
of.uncoupling lever, a part and appurtenance- of the coupler,
the handle of which lever when operated in the ordinary,
usual and normal way descended to a point less than eighteen
inches from or above the top of the rail without causing or
engaging the ‘‘lock-block’’ or pin to release the knuckle.
Complaint. ee . i
9, Said defendant used and permitted to be used on its
aforesaid railroad a car equipped with a ‘‘nush-down”’ -type’
of’uncoupling lever, a part and appurtenance of the coupler,
the handle of which lever when operated in the usual, normal
and ordinary way dropped more than fifteen inches over all.
3. Said defendant unlawfully used and permitted to be
used on its aforesaid railroad a car whose ‘‘Uncoupling- -
‘ Lever’’, its parts and appurtenances, were bent, twisted and
defective in condition and placement, and which by reason
of the aforesaid, and when used in the normal, usual and
ordinary manner, interfered with and prevented the ‘‘lock-
block’* or pin from or releasing the knuckle of the coupler |
and, prevented an uncoupling of the cars in the usual, normal
and ordinary way. | es
4. Said defendant unlawfully used’ and permitted to be
used on its aforesaid railroad a car whose uncoupling lever,
its parts and appurtenances, were bent, twisted and defec-
tive in condition and placement, and which by reason of the
aforesaid, and when. used and operated in the usual, normal
and ordinary way, prevented the’ coupler from being un--
coupled without the necessity of a man going between the ends .
of the cars in order to effect said uncoupling. ;
5. Said defendant unlawfully used and permitted ‘to be
used on its aforesaid railroad a car, the coupler of which-when
coupled to another car, could not be uncoupled in the usual,
normal and ordinary way without the necessity of a man
going between the ends of. the cars, to effect said un-
coupling.. ~ :
(13 6. Said defendant unlawfully used and permitted to
be used on its aforesaid railroad a car not equipped with
couplers coupling automatically by.impact and which can be
uncoupled’ without the necessity of a man going between the
ends of the cars. qe |
Plaintiff says that as a‘Girect and: proximate result of the
negligence and unlawful conduct of the defendant, as here-
inbefore set out, he was caused to be injured in his body and
person in the following respects: an amputation of the right
hand and forearm, said amputation consisting of and includ-
ing the lower third of the forearm; a crushing and mangling
of the bones, muscles, ligaments, nerves and tendons of the
right forearm, with a resultant condition of pain, tenderness
and swelling in said right forearm. That said pain is con-~
stant, aching in character, radiates toward the right ‘shoulder ~
and is more intense when said right forearm is moyed or
12 2 — Complaint.
. manipulated; that plaintiff has wholly lost the use ‘of his right .-
arm and hand; that there is being formed what is known as
neuromata on the- ends of the nerves. That amputation
tumors are developing on the ends of the severed nerves of
the right forearm; that there is further developing in said.
right forearm and bones‘thereof a condition of osteomyelitis,
with a resultant destruction of the said bone and a spreading, ©
thru the caseous system, of said condition of osteomylitis to
the other bones. of the body, producing necrotic areas of bone
complicated with abscesses and espticamia; That plaintiff
has been caused .a severe shock and injury to his entire
nervous system; Ahat his aforesaid injuries are permanent in
character and that with reasonable certainty he will be caused
to suffer pain in the future therefrom; that his aforesaid in-
_juries have and will cripple him for life.
Plaintiff says that at the time of the occurrence of the mat-
ters complained of he was a healthy\vigorous man, working
and able to work, earning and able to earn the sum of ap-
proximately two hundred dollars ($200.00) a month at his
occupation of a-railroad switchman. That since his afore- .
said injuries he has been unable to work and earn money, and
will with reasonable certainty be wholly incapacitated in his
_- ability to perform the work of a switchman or any other oc-
cupation and earn money in the future. That he will be
_ foreed to expend moneys for medical care and treatment of
his injuries in the future, the exact amount of which
14 plaintiff is unable to state at this time.
He Wherefore plaintiff, having been damaged in his body
and person and in his earning capacity in the sum of seventy
seven thousand six hundred dollars ($77,600.00), asks and
prays judgment against the defendant, The Chesapeake and
Ohio Railway Company, in the sum of seventy seven thou-
sand six hundred ($77, 600.00) dollars, and all other and
proper relief in the premises.
TEETER AND Hartzuer »
By C. L. Teeter,
Attorneys for the Plaintiff.
16 oat * * (Caption) * *
Plea in Abatement. . : —_
15 And afterw ards, to wit: on the 11th day of February,
1931, the following further proceedings v were had in the
above entitled cause, to wit :
7 at (Caption) o *..-
‘Comes now the deteniaas herein, and files its: n't in abate-
‘ment denying the jurisdiction of the court, which plea in
abatement reads in the words and figures following, to wit:
Filed Feb,
1931. ~
PLEA IN ABATEMENT DENYING THE JURISDICTION |
OF THE COURT.
First. The Chesapeake-and Ohio Railway Company, the _
defendant in the above entitled cause, appearing specially
and for the purpose of this answer only, by way of answer in |
abatement to Paragraph’ I. of plaintiff’ ’s eomplaint herein,
says:
That on November 29, 1930, and at the time of the alleged
’ grievances complained of in said paragraph of complaint,
the plaintiff was not employed by defendant in commerce
between any of the several states or territories, or between
any of the states or territories, or between the District of
Columbia 6r any of the states or territories any foreign
nation or nations, nor was ‘he in any respect employed or —
éngaged in inter-state commerce as therein alleged, and that
by reason thereof this Court has no jurisdiction to hear and
determine this action pursuant to the Act of Congress of the
United States, approved April 22, 1908, and Amendments
thereto, and which Act is commonly known as the. Federal
Employers’ Liability Act.
It further says that at all times mentioned in said par-
agraph of complaint it was arid now is as therein alleged a
corporation duly organized and acting as such under and by |
virtue of the laws of the State of Virginia, and it fur- ~
17 ther says that during all said times it was and-now is an
inhabitant of the Eastern District of Virginia, and that
in so far as the action declared upon in said paragraph is
brought against the defendant or arises under or by: virtue
of the Act of the Congress of the United States known as
ee ae
14, 3 Plea in Abatement.
the Safety Appliance Acts and the Rules and Orders lew-
fully promulgated thereunder by the United States Interstate
Commerce Commission, the same cannot be brought in any:
district court against this defendant by any original process
or proceeding in any other district than said Eastern District
of Virginia whereof it is an inhabitant as‘dforesaid.
Wherefore it says that this Court has no jurisdiction over -
this action or the person of this defendant and it prays*that
the same’ shall abate and be dismissed.
Second. The Chesapeake and Ohio Railway Company, the
defendant in the above entitled cause, appearing specially
and for the purpose of this answer only, by way of answer in
abatement to Paragraph II of plaintiff’s complaint herein,
_ says: -
That it admits that at all times mentioned in said par-
agraph of complaint it was and now is a corporation duly or-
- ganized and acting as such under and by virtue of the laws of
the state of Virginia, and that during such time it was and ©
now is a citizen of the’ state of Virginia, but it denies that
at the time of the commencement of this action the plaintiff
was or now is a resident of the City of Fort Wayne, in Allen
County in the State of Indiana, or of the Northern Distri¢t
of Indiana, or the Fort Wayne Division therein, or a citizen
of the State of Indiana,
If further says that during all said times it was and now is
an inhabitant of the Eastern District of Virginia, and that the ©
action declared upon in said paragraph of complaint being
brought against the defendant and arising under and by
virtue of the Act of the Congress of the. United States com-
. monly known’as the Safety Appliance Acts and, the Rules
and Orders promulgated by the Interstate Commerce Com-
mission of the United States, the same cannot be brought in
any district court against this defendant by any original
18 process or proceeding in any. other district than said
Eastern District of Virginia whereof it is an inhabitant _
as aforesaid.
Wherefore it says that this Court has no jurisdiction over
this action or the person of this defendant and it prays that
the same shall abate and be dismissed.
(Signed) Awserr H. Coxe,
Attorney for. Defendant.
Le ee
- Application to Amend Plea in Abatement. 15
"State of Indiana a
County of Miami
ALBERT H. COLE, being duly sworn upon his oath, says
that he is State Counsel for the Chesapeake and Ohio Rail-
way Company, the defendant in the above entitled cause, and
as such is authorized to and does make this~affidavit on its
- behalf, and that the facts stated in each of the foregoing par-
agraphs of answer are true.
! ~ (Signed) Atsert H. Cote.
Subscribed and sworn to before me, this, 10th day of Feb-
ruary, 1931. ;
(Signed) Mivprep Bex Easter,
Notary Public. -
My Commission expires: May 31, 1931. —
YS
19 And afterwards, to wit, on the 25th day: of March, Filed Mar.
1931, the following further proceedings were had in the
above entitled cause, to wit:
x
4
" * (Caption) * *
Comes now the defendant herein, and files its application
for leave to amend the first paragraph of the plea in abate-*
ment denying the jurisdiction of the court, which application
reads in the words and figures following, to -wit:
* *+ (Caption) * *
APPLICATION OF THE DEFENDANT FOR LEAVE TO
AMEND FIRST PARAGRAPH OF PLEA IN ABATE-
MENT DENYING THE JURISDICTION OF THE
COURT. - )
‘The Chesapeake and Ohio Railway Company, the defend-
ant in the above-entitled cause, appearing, specially and for
the purpose of this application only, hereby asks leave to
amend the first paragraph of its plea-or answer in abatement
filed to paragraph I of plaintiff’s complaint herein by insert-
ing therein after the phrase ‘‘nor was he in any respect em-
ployed or engaged in Interstate Commerce as therein al-
leged’’, the following words: ‘‘nor was he assisting in switch-
\
s .
Li ae ee a 4 ~ 2 ae
=
°
c
16 Application to Amend Plea in Abatement.
ing freight cars from off the Shop Track easterly and over
and onto the defendant’s classifying tracks in the yard re-
ferred to in said paragraph of complaint for any of the
20 following purposes to wit: placing cars into trains so
that said cars could continue any original movements in
‘Interstate Commerce which were temporarily interrupted at
said yard for the purpose of making ‘‘running’’ repairs to
said cars; placing cars into trains-for the purpose ‘of moving
said ears from Russell, Kentucky, to points in the State of
West Virginia, Virginia and other states of the United
States; placing cars in trains for the purpose of continuing
- the movements: of said ears in Interstate Commerce from
Ohio, Illinois, Indiana, and other states of the United States
to their destination in the State of Kentucky; clearing the
Shop Track Number 2 referred to in said paragraph of com-
plaint of the cars therein referred to in order that plaintiff
could assist his crew in the movement of other cars from
Track Number 18 in said yard, referred to in said paragraph
of complaint, to said Shop Track Number 2 immediately fol-
lowing upon the clearing of the cars off of. the Shop Track
as aforesaid, for the purpose of making of running repairs
- to said ears on said Number 18 track in order that said cars
could continue any original movement in Interstate Com-
merce from Ohio, Indiana, Illinois, Virginia, West Virginia,
Kentucky or other states of the United States to their desti-
nations,’’ and to verify said paragraph of. answer as so
amended.
ALBERT H. CoLe
Attorney for Defendant.
And afterwards, to wit, on the 9th day of April, 1931, the
following further proceedings were had in the above entitled
cause, to wit: . .
21 - * * (Caption) * *
Come now the parties herein, and now a hearing on the
defendant’s motion to amend the plea in abatement is
had, and the court now grants leave to amend said plea in -
abatement. And now the defendant files its amended first
paragraph of plea in abatement denying the jurisdiction of
the court, which amended first paragraph of plea in abate- ©
ment reads in the words and figures following, to wit:-
¢ .
‘
rweemenen:
Amended Plea in Abatement. 17,
In True District Court or THE Unite States
For the Northern District of Indiana,
Fort Wayne Division.
James B. Moore, .
Plaintiff,
vs. a
> At Law—No. 402.
~ The Chesapeake and Ohio Railway
' Company, a corporation,
Defendant.
4
AMENDED FIRST PARAGRAPH OF PLEA IN ABATE-.
MENT DENYING.THE JURISDICTION OF THE
COURT. ae |
First: The Chesapeake and Ohio Railway Company, the
defendant in the above entitled cause, .appearing ‘specially
and for'the purpose of this answer only, by way of amended
Filed Apr
131.
answer in abatement to Paragraph I of plaintiff’s complaint —
. herein, says: -
That. on November 29, 1930, and at the time of the alleged
grievances complained of in said paragrapli of ‘complaint,
the plaintiff was not employed by defendant in commerce be-
_ tween any of the several states or territories, or between any
of the states or territories, or between the District of Colum- _
bia or any of the states or territories and any foreign nation
or nations, nor was he in any respect employed or en-
22 gaged in interstate commerce as therein alleged, nor was
he assisting in switching freight cars from off the Shop
Track easterly. and over and onto the defendant’s classifying
tracks in the yards referred to in said paragraph of com-
plaint for any of the following purposes to wit: pdacing cars
into trains so that said cars could confinue any original move-
ments in Interstate Commerce which were temporarily in-
terrupted at said yard for the purpose of making ‘‘running”’
repairs to said cars; placing cars into trains for the pur-
pose of moving said cars from Russell, Kentucky, to points
in the State of West Virginia, Virginia and other states of
the United States; placing cars in frains for the purpose
of continuing the movements of said cars in Interstate Com-
—_—— —
ee ee ee ee ee ee ee! ee
_ =
__
»
18 . Amended Plea in Abatement.
merce from Ohio, Illinois, Indiana and other states of the
United States to their destination in the State of Kentucky;
~ clearing the Shop Track Number 2 referred to in said para-
graph of complaint of the cars therein referred to in order
that plaintiff could assist his crew in the movement of other
ears from Track Number 18 in said yard, referred to in said
paragraph of complaint, to said Shop Track Number 2 im-
mediately ‘following upon the ‘clearing of the cars off of the
Shop Track as aforesaid, for the purpose of making of run-
ning repairs to said cars on said Number 18 track in order
that said cars could continue any original movement in In-
terstate Commerce from Ohio, Indiana, IHinois, Virginia,
. West Virginia, Kentucky or other states of the United States
to their destinations, and that by reason thereof this Court
has no jurisdiction to hear and determine this action pursu- -
ant*to the Act of Congress of the United States approved
April 22, 190%, and Amendments thereto, and which Act is
commonly known as the Federal Employers’ Liability Act.
It further says that at all times mentioned in said para-
graph of complaint it was and now is as therein alleged a
corporation duly organized and acting as: such under and
by virtue of the laws of the State of Virginia, and it further
says that during all said times it was and now is ay inhab-
itant of the Eastern District of Virginia, and that in so far
as the action declared upon in said paragraph is brought
23 against the defendant or arises under or by virtue of the
Act of the Congress of the United States knewn as the
Safety Appliance Acts and- the Rules and Orders lawfully
promulgated thereunder by the United States Interstate Com-
merce Commission, the same cannot be brought in any dis- .
trict court against this defendant by any original, process or
proceeding in any other district that said Eastern District
of Virginia whereof it is an inhabitant.as aforesaid.
Wherefore, it says that this court has no jurisdiction over
this action or the person of this defendant and ‘it prays that
the same shall abate and be dismissed. ©
' AvBerTt H. Coe
Attorney for Defendant.
Sfate of Indiana a
County of Miami
ALBERT H. COLE, being duly sworn upon his oath, says
that he is State Counsel for The Chesapeake and Ohio Rail-
way Company, the defendant in the above entitled cause,
eSYE
oN
a My commission expires: May 31, 1931.
Plaintiff’s Demurrer: 19
and as such is authorized be and does make this affidavit on |
its behalf, and that the facts stated in- the foregoing amended
paragraph of answer are true. |
ALBERT H, CoLe
Subscribed and sworn to before me this 9th day of April,
1931. - Se |
MILDRED Bru. EASTER
"Notary Public.
94 And afterwards, to wit, on the 10th day of April, 1932,
the following further proceedings were had in the above
entitled cause, to wit:
* * (Caption) * *
Comes now the plaintiff herein, and files a demurrer to the .
defendant’s plea in abatement to first paragraph of plain--
tiff’s complaint, which demurrer reads as follows, to wit:
* © (Goptien) *
Filed Apr.
1932.
PLAINTIFF’S DEMURRER TO DEFENDANT'S PLEA .
IN ABATEMENT TO FIRST PARAGRAPH OF PLAIN-
TIFF’S COMPLAINT. “ :
The plaintiff, James B. Moore, demurs to the defendant’s
amended plea in-abatement filed herein, denying the jurisdic-
tion of the Court to hear and determine the cause of action
stated in the first paragraph of plaintiff’s complaint, upon
the ground that said amended plea in abatement does not
state facts sufficient to abate the cause of action so stated in
said first paragraph of plaintiff’s complaint. :
| Teeter & HarrTzLer
Attorneys for Plaintiff.
MEMORANDUM.
The only jurisdictional fact involved and the only jurisdic-
tional allegation contained in’ the plaintiff’s first paragraph
of complaint is ‘‘that at the time of the commencement of
° |
20 Answer in Denial.
. the action stated in:the plaintiff’s first paragraph of
25 complaint, the defendant was doing business within the
Northern District of Indiana.’’ The defendant’s plea
in abatement does not deny this allegation or allege new mat-
ter showing any contrary facts but instead thereof does deny
an allegation of substantive fact contained in said complaint.
The defendant’s pleading therefore is in substance a plea’
to the merits of one of the material elements of plaintiff’s
cause of action and a plea in abatement in name only. It
denies and challenges a material allegation of substantive
fact made in paragraph one of plaintiff’s complaint and does
not deny or challenge any jurisdictional fact or allegation.
And now a hearing is had on the above demurrer, which
demurrer to the amended first: paragraph of plea in abate-
ment is’sustained by the court, to which ruling of the court
the defendant at the time excepts.
fpr. 27, And afterw oe to wit, on the 27th day of April, 1931, the
following further proceedings were had i in the above entitled
cause, to wit:
* * *
* (Caption)
Come now the parties herein, and now a hearing on the
plea in.abatement is had, which plea in abatement is over-
ruled by the court, to which ruling of the court the defend-
ant at the time excepts, and now the defendant files its an-
. swer in general denial, which answer ’ reads in the words and
— figures following, to wit
26 ‘o@ * -* (Caption). *--*
ANSWER IN DENIAL.
The Chesapeake and Ohio Railway Company, the defend- |
ant in the above entitléd cause, for answer to plaintiff’s com-
. plaint herein denies each and all of the material allegations
therein alleged.
; Auazat H. Coie
Attorney for Defendant.
(Endorsed) * * (Caption) * * Filed Apr. 27-1931
Margaret Cowgill, Clerk. Answer in Denial. (Copy) Al-
ment H. Cole, Peru, Indiana, Attorney for Defendant.
Motion to Direct Verdict. © 91
27 And now this cause being at issue, is submitted for
trial to a jury composed of the following named persons:
Arthur D. Rhamy, David Freed, Guy Pond, Verne Hill, A. C.
Bailey, Wayne Brunson, Wilbur C. Hoppes, Fred H. Fehling,
James Fidler, F. H. Harlan, J. W. Harvey and Geo. L. Jor-
* dan, and now the evidence herein is begun and continued.,
es And afterwards, to wit: on.the 28th day of April, 1931, the
following further preceedings were had in the above entitled
cause, to wit: ;
ore (Caption) eC
Come now the parties herein, and now the evidence herein
is resumed and continued, and now the plaintiff rests, and
the defendant’s evidence is begun.
And afterwards, to wit: on the 29th day of April, 1931, the
following further proceedings were had in the above entitled
cause, to wit:
* * (Caption) * *
Come now the parties herein, and now thé defendant’s eyi-
dence is continued and concluded, and new the deferdant
rests. And now the defendant files a motion for a directed
verdict in favor of the defendant, which motion reads in the
© words and figures following, to wit:
4
Ma hea: (Caption) iis Filed Apr.
1931.
28 MOTION’ TO DIRECT VERDICT.
The defendant at the close of all of the evidence hereby
moves the court to direct the jury to return a verdict in
favor of the defendant for each of the following reasons:
(1) The evidence is insufficient to establish the fact that
the plaintiff was émployed by the defendant in Interstate
Commerce at the time of receiving the injury complained of.
(2) The evidence is insufficient to establish that the de-
-fendant violated the Act of Congress commonly known as
the Safety Appliance Acts or any rules or orders lawfully
—_.,
.
—_— ee ee ee eee
0 ea a ES ee Le en, et lie
- Apr. 30,
22 -. Verdict.
promulgated thereunder by the United States Interstate
Commerce Commission in any of the particulars charged in
the complaint. -
(3) The evidence is insufficient to establish the fact that
any ‘violation on the part of the defendant of any provision
of the Act of Congress commonly known as the Safety Ap-.
pliance Acts or any rules or orders lawfully promulgated
thereunder by the United States Interstate Commerce Com-
mission and declared upon in this action was the proximate —
cause of plaintiff’s alleged injuries. |
(4) The evidence is insufficient to show that the defend-
ant was guilty of any act of negligence which was the proxi-
mate cause of plaintiff’s alleged injuries.
(5) It affirmatively appear from the evidence” that the
plaintiff assumed the. risk, of injury from the negligence of
the defendant, which is complained of.
(6) The court. is without jurisdiction over ‘the cause of
action declared upon in the second paragraph of complaint
for the reason that the same is a civil suit at law arising un-
der a law of the United States known as the Safety Ap-
29 pliance Act and brought by original process or proceed-
ing in a district other than that whereof the defendant
is an inhabitant and the jurisdiction is not founded only on
the fact that the action is alleged to be between citizens of
different states.
' AuBerT H. Coie
», Attorney for Defendant.
which motion is overruled by the court to which ruling of the
court the defendant at the time excepts. And now the argu-
ments are heard by the court, and now the jury is instructed
and retires for deliberation.
And afterwards, to wit, on the 30th any of April, 1931, the
following further proceedings were e had i in the above entitled
cause, to wit:
: * * (Caption) * *
Come now the parties herein, and come also the’ jury into
open court and returns its verdict as follows:
‘“We, the Jury find for the plaintiff and assess his dam-
ages at $30,000.00.
Anruur D. RuHaMEY, Serstene.
Application for New Trial. "93
And afterwards, to wit, on the 11th day of May, 1931, the Filed, Ma;
following further proceedings were had in the above entitled
cause, to wit:
.-© © ‘Gestion -*.”.”
30 Comes now the defendant herein, and files its applica- Less
tion for leave to file a motion for a new trial and request ep
for oral argument thereon, which application reads in the © |
words and figures following, to wit: 7% |
*-* (Caption) * *
APPLICATION FOR LEAVE TO ‘FILE MOTION FOR
NEW TRIAL AND REQUEST FOR ORAL ARGUMENT
THEREON. o ‘
. The Chesapeake and Ohio Railway Company, the defend-
ant in the above entitled cause, hereby asks leave to file here--
in a motion for a new trial of the above entitled cause and |
requests an oral argument on such motiorm. |
7: Apert H. Cote, : |
At y for defendant. |
.. «
which leave is now granted by the court, and the defendant Entered 1 |
now files a motion and application for new trial, which motion wat
and application for new trial reads in the words and figures
following, to wit: :
-- | (Caption) * *
Comes now The Chesapeake and Ohio Railway. Company,
the defendant in the above entitled cause, and moves and .
applies to this court for an order setting aside the verdict
herein and granting a new trial of the above entitled cause «
for each of the following reasons: _
31 (1) The verdict is not sustained by sufficient evidence.
. (2) The verdict is contrary fo law. . :
(3) The damages assessed by the jury are excessive.
(4) The court erred in permitting the plaintiff, Janfes B.
Moore,. when testifying on his own behalf on his examination |
in chief, on direct’ examination on the hearing of the second
paragraph of defendant’s plea in abatement to the jurisdic-:
a
24 Application for New Trial. ° .
tion of the court, to answer, over the objection of the plain-
‘tiff, the following question ‘When, for the first time, did you
make up your mind to leave for Ft. Waynet’’, To which
question the witness. answered: ‘‘Jannary 9, 1931.’ To
which ruling of the court the defendant at the time excepted.
(5) The court erred in finding against the defendant on
the second paragraph of its plea in abatement to the ‘juris-
diction of the court which was addressed to the second para-
graph of plaintiff's complaint, to which ruling of the court
the defendant at the time excepted.
(6) The court erred in permitting the plaintiff, James B.
Moore, while testifying on his own behalf, in chief on direct
examination ®n the trial of said cause on its merits, to an-
swer, over the objection of the defendant, the following ques-
tion: ‘*Now tell the jury what you observed on this ear with
reference to where this ear came from,- where it was going
and what was done with it.’’ .To whigh question the witness
made the following answer: ‘‘BF four form card and said
on the card from Parson’s Yard, C. F. Ehrman to Raceland
Shops, broken center silk to C. B. Ratcliff.’? To which ruling
of the court the defendant at the time,excepted. :
(7) ° The court erred in permitting the plaintiff, James B.
Moore, while testifying on his own behalf, in chief on direct .
. examination on the trial of said cause on the merits, to an-
: swer, over the objection of the defendant, the following ques-
tion: ‘*How much lower than the bottom of the axle did the
lever of. the handle deseend?t’’ To which question said wit-
ness made the following answer: ‘‘Two inches‘or more.’’ °
32. To which ruling of the court the defendant at the time
excepted. -
(8) The court erred in permitting the-witness Roland R.
’ Schulz, while testifying on behalf of thé plaintiff, in chief on
direct examination, to answer, over the objection of the de-
fendant, the following question, ‘‘T will ask you to state to
the jury what the law of Kéntucky was in that respect in
fall force and effect on November 29, 1930, in the State of
Kentucky?’’ To which question said witness made the fol-
lowing answer: ‘‘This was the law: That every common
carrier by railroad while engaged in commerce in this State
shall be liable in damages to-any person suffering injury
while he is emploved by such carrier in such commerce, or
in case of the death of:such emplovee, to his or her personal
representative for such injury or death to such employee re-
sulting in whole or in part from the negligence of any of ‘the
Application for New Trial. ° ~ 25
officers, agents, or employees of such carrier, or by reason
of any defect or insufficiency, due to its negligence in its cars,
engines, appliances, machinery, track, roadbed, docks, boats,
wharves or other equipment. In all actions hereafter brought
agamst such common carriér by railroad, or by virtue of any
of the provisions of this Act to recover damages for personal
injury to,any employée, or where such injuries have resulted
in his death, the fact that the employee may have been guilty
of contributory negligence shall not bar a recovery, but the
damages ‘shall. be diminished by the jury in proportion to the
amount of negtigence attributable to such employee; pro-
vided, that no such employee who may have been injured or
killed shall be held to have been guilty of contributory neg-
ligence in any case where the violation of such common car-
fier of any statute, State or Federal, enacted for the safety
of employees contributed to the injury or death of such em-
ployee. That in any action brought against any common
carrier by railroad under or by virtue of any of the provi-
sions of this Act to recover damages for injuries, ta, or the
death of, any employee, such employee shall not be held to
have assumed the risk of his employmerit in any case where
the violation by such eommon carrier of any statute,
_ 33 State or Federal, enacted for the safety of employee, con-
tributed to the injury or death of such employee,’’ and in |
overruling defendant’s motion to strike out said answer, to
each of which rulings of the court, the defendant at the time
excepted. . ;
(9) The court erred in refusing to. permit the witness
John Robbins, while testifying as a witness for plaintiff, on
cross-examination on plaintiff’s case in chief, to answer the
following question: ‘‘What was the practice at Russell with
reference to cars which came there to be repaired at the shops
from other divisions, as to whether these cars were fre-
quently held on different repair tracks for a considerahle
period of time before finally reaching the shops?’’ To which
ruling of the court the defendant at the time excepted.
(10) The court erred in refusing to permit the witness
John Robbins, while:testifying as a witness for plaintiff on
eross-examination on plaintiff’s case in chief, to answer the
following question: ‘‘What is the fact as to whether cars
which came from Parson’s Yard under the direction of Mr.
Ehrman, with the cards tacked on in the same form as Plain-
tiff’s Exhibit 1, being form BF four, after arrival at the
Russell Yards were from time to time sent out on-the road
——————————
eee eee eneneeennnll
>
26° | Application for New Trial.
to be loaded without ever going to the Russell Shops?’’ To
~ which ruling of the court.the defendaht at the time excepted.
(11) The court erred in pérmitting the witness E. Berk-
hardt, while testifying as a witness for the defendant,.to an-
swer upon cross-examination, over the objection of the de-
fendant, the following question: ‘‘And Mr. Moore said to
you, the low lift lever was bent, went too low and unbalanced
me?’’ To which question the ‘witness answered: ‘He said
a low lift lever.’? To which ruling of the court the defend-
ant at the time excepted.
(12) The court erred in refusing to permit the witness
John Robbins, while testifying on his direct examination as
a witness on behalf of the defendant, to answer the following
quéstion: ‘‘What is the fact as to whether or not cars with
those cards were from time to time inspected by men from
the shops and sent-out to road service without first
34 , going to the shops?’’ To which ruling of the court the
defendant at the time excepted.
(13) The court erred in refusing to permit the witness
-L. S. Ward, while testifying on behalf of defendant on di-
rect examination, to answer the following question: ‘‘Did
that bend have. anything to do with making-the handle of the:
lever higher or lower from the top of the rail?’’ To which
ruling of the court the defendant at the time excepted.
(14) The court erred in refusing to give to the jury: in-
struction “numbered 1+ of the instructions tendered by the
defendant, to the refusal of which the defendant at the time,
in sted. presence and prior to the retirement of the jury ex-
cepte °
(15) The court erred in refusing to give to the jury in-
struction numbered 2 of the instructions tendered by the
defendant, to the refusal of which the defendant at the time,
in the presence and prior to the retirement of the jury. ex-
cepted.,
(16) The court erred in refusing to give to the jury in-
struction numbered 3 of the instructions tendered by the de-
fendant, to the refusal of which the defendant at the time,,.
‘in the presence and prior to the retirement of the jury ex-
cepted.
(17) The court erred in. refusing. to give to the jury in-
struction numbered 4 of the instructions tendered by the de-
fendant, to the refusal of which the defendant at the time, in
the presence and prior to the retirement of the jury excepted.
(18) The court erred in refusing to give to the jury in-
Application for New Trid. . 27
struction-numbered 5 of the instructions tendered by the de-
fendant, to the refusal of ‘which the defendant at the time, in
the presence and prior to the retirement of the jury excepted.
(19) The -court erred in refusing to give to the jury in-
struction numbered 6 of the instructions tendered by the de-
fendant, to the refusal of which the defendant at @e time, in .
the presence and prior to the retirement of the jury excepted.
(20). The court erred in instructing the jury to the
35 following effect: He (the plaintiff) also charges that
the defendant used the same push-down type of uricou-
pling lever and handle of lever which when operated in the
usual, normal and ordinary way dropped fifteen inches over
all * * * The Interstate Commerce Commission has pro- |
vided certain rules and regulations and has provided the dis-
tance above the rail that interstate carriers shall be permit-
ted to use couplers and uncouplers. The rule of the Inter-
‘state Commerce Commission provides that handles of un-
coupling levers shall have a minimum drop of twelve inches,
a maximum of fifteen inches over all * * * The serious
question in this case for you to consider is the question of
- whether or not the defendant violated the Safety Appliance
Act, the uncoupling act, in that it did not have an uncoupling
lever that complied with the Safety Appliance Act and the
rules of the Interstate Commerce Commission with reference
to the height above the rail and,the maximum movement of
the handle of the uncoupling defice. If you find the defend-
ant did violate that rule or a provision of the Safety Appli-
ance, Act and the plaintiff’s injury was the proximate result
‘of such violation, then the plaintiff is entitled to recover in
this ease. The defendant having atthe time, in the presence
and before the retirement of the jury, excepted to said por-
tion of said charge, wherein the jury were told that they.
were entitled to award a recovery if the lever in question
dropped more than fifteen inches over all.
Wherefore, defendant prays that the verdict be set aside
and that a new trial be granted. .
Dated this 9th day of May, 1931.
ALBERT H. CoLe,
Attorney for defendant.
I hereby allow the within motion and application to be Enterea
filed in this cause. 1933.
Dated this 11 day of May, 1931.
Tuomas W. Suick,
District Judge.
ee ae “..
. .
LAP LE Deeg EAR LO lm, AO ag GO tee ng OM ge Nm
d Jan. 16,
tions
Mar. 4,
28 an : Judgment.
ies,
36 And afterwards, to wit, on the 16th day of January,
1932, the following further ica were had in the
above entitled cause, to wit:
* * (Coestion) **-*
Come now the parties herein, and now the defendant’s mo-
tion for a new trial is overruled by the court, to which rul-
ing of the court the defendant at the time: excepts, and now
the plaintiff moves for judgment on the verdict, which mo-
tion is sustained by the court and judgment is entered on the
verdict heretofore returned: into open court.
It is therefore considered and adjudged by the court that
the plaintiff have, recover of and from the defendant herein,
as damages, on the complaint sued upon, the sum of Thirty
Thousand ($30,000.00) dollars, together with the costs of
this action, laid out.and expended, ee ee
To which ruling of the court in entering judgment on the
above verdict, the defendant at the time excepts.
- And afterwards, to wit, on the 4th day of March, 1932, the
following further proceédings were had in the above entitled -
cause, to wit:
* * *
(Caption) *
Comes now the defendant herein, and files its Bill of Ex-
ceptions, containing all the evidence, which is approved, al-
lowed, settled and ordered made a part of the record, which
is accordingly now done, and reads in the words and figures
following, to wit:
37 ‘ * * (Caption) * *
-- BILL OF EXCEPTIONS.
Be It Remembered, That on the 27th day of April, 1931, ut
the April Term of the District Court of the United States
for the. Northern’ District of Indiana, Fort Wayne Division,
the above entitled cause came on for trial before the Hon-
orable Thomas W. Slick, Judge of said court; that by-agree-
ment of the parties T. H. Paulmann, a Notary Public in and
ee
~ — ———
Deposition of Minta A. Moore. 99 | .
for the County of Allen, State of Indiana, acted as such re-
_ porter, and as such took down in shorthand a full, true and
complete verbatim report of all the evidence given, and of-
fered by the parties in said cause, and all objections thereto
and the rulings of the court thereon and all exceptions there- .
to, which said shorthand report was transcribed by said: re-
‘porter and has been preserved; that the plaintiff was pres-
ent in person and represented by Teeter & Hartzler and Ed-
ward Davidson, his attorneys, and that the defendant was
represented by Albert H. Cole, his attorney.
38 The defendant, to maintain the issues, joined under
its Plea in Abatement, offered and introduced the testi-
mony of the witnesses and the documentary evidence herein-.
, after mentioned, which testimony, by deposition or other- |
wise, and on direct, cross and redirect examination, together
with such documentary evidence in condensed and narrative
form, is as follows: | .
. DEFENDANT’S EVIDENCE. ns
DEFENDANT’S EXHIBIT 1.
MINTA A. MOORE—Deposition:
Direct Examination.
I am the wife of the plaintiff and was married to him in
Carter County, Kentucky, in 1910. I have lived at 3102 Gallia
Street, Portsmouth, Ohio, for five years, in property owned by
James B. Moore, with eight children, aged from three to
twenty years. Mr. Moore worked for the Norfolk & Western
for about six years prior to 1920, then a short time in an
ice plant at Portsmouth, Ohio, a month in the mines in West |
Virginia, and since then for the C. & O. Railway Company
at Russell, Kentucky. I have lived in Scioto: County, Ohio,
ever since 1912. While working for the Norfolk & Western,
the ice plant and in the mines, phaintiff lived at Portsmouth,
Ohio, being at the mines for only about a month. While work-
ing for the C. & O. he came home at first every day, then
about every other day, during the last two years every other
ae He paid the household. expenses, with my help from
eeping roomers. After his injury he was taken to the C. &
O. hospital at Huntington, West Virginia, came home the
te ee _ Bill of Exceptions.
week after he left the hospital, stayed one night, and when he
next returned he said. that he had been to Fort Wayne to
see a specialist, and thereafter he went to the Huntington
hospital for about a.week, coming back home every two days,
and making ‘one trip to Fort Wayne. He was last at home
on January 10, 1931. Our children attended the public schools
in Portsmouth. He had no friends, acquaintances or rel-
39 atives in Fort Wayne and owned no home or real estate
other than where T live at Portsmouth.
Cross-Examination.
We had trouble about a woman at Ironton. He told me on
January 3 that he wouldn’t live with me another day. I have
a suit for alimony or support for the children pending to
keep him from wasting his money on this woman. He has
not lived vith me and the children since January 10, 1931.
~ Redirect Examination.
I found out about the other woman in August, 1930, after
which Moore returned to his home only every two weeks. Dif-
ficulty with this woman led to him striking-me. I filed a
charge against him for non- support, upon which a warrant
was issued for his arrest. After about two weeks he would
return to his home at Portsmouth on pay days, remaining
about an hour and leaving most of his check to pay debts. He
last ate at home after Christmas.
DEFENDANT'S EXHIBIT 2-A.
LEE MOORE—Deposition:
Direct Examination.
I reside at Raceland, Kentucky, and have known Moore for
sixteen years. He lived at Portsmouth, first on Walnut and
later on Gallia Street where his family now live. In October,
1920, Moore began working at Raceland, but continued to
live at Portsmouth. He boarded and. roomed with me at Race-
land for ten years, and.said that he went back to see his
family every two weeks. He claimed Portsmouth as his home,
and owned three properties there. .He took out a- 1931 Ohio
~~
..
;
c
Deposition of Mrs. Ida Lewis. | —. 8
license on his automobile... He had no friends or relatives in
' Fort’ Wayne. He left my home three months before the ac-
cident and went to Mrs. Ida Lewis’ at Raceland, Kentucky.
z
40° ' DEFENDANT’S EXHIBIT 2-B..-_ Deft’s. Ex.
MRS. IDA, LEWIS—Deposition : =
| , Direct Examination.
I reside at Raceland, Greenup County, Kentucky, near -the
Russell Yards of The C. & O. Railway Company, and have
known James B. Moore all our lives. His family lived at
Portsmouth. He boarded at my house for about three months,
beginning in September, 1930. He wasn’t there after he was
hurt except to'come and go. While boarding with me he
went home to his family every two weeks. He never brought
any furniture to Raceland, but had his trunk, clothes and
tools. Part of his tools are still there. He spoke of owning
property in Portsmouth, but I never heard him speak about
‘going to Fort Wayne. =
_ DEFENDANT’S EXHIBIT 3, a photostatic and certified ©
copy of the application of the plaintiff for an Ohio automo-
bile license for the year 1931. dated December 26, 1930, and
stating his residence to be 3102 Gallia Street, Portsmouth,
Ohio, was admitted and read in evidence.
DEFENDANT’S EXHIBIT 4, being. a certified copy of
certain proceedings in the Common Pleas Court of Scioto
County, Ohio, was then introduced in evidence, the substance
and purport thereof being as follows:
There was filed on January 8, 1931 in the Court of Com-
mon. Pleas, Scioto County, Ohio in cause number 23948 enti-
tled Minta A. Moore, 3120 Galia Ave., Portsmouth, Ohio,
Plaintiff, vs. James B. Moore, 3120 Galia Ave., Portsmouth,
Ohio; Brotherhood of Railroad Trainmen, Cleveland, Ohio
and Chesapeake and Ohio Railway Company, Richmond, Vir-
ginia, Defendants, by said plaintiff therein a verified peti-
tion alleging that plaintiff was married to the defendant
Moore on October 10, 1910; that seven (7) children, whose
names and ages were therein set out were born to said mar-
riage; that the said James B. Moore had been guilty of im-
proper conduct and was failing to properly care for his fam-
“we . Rall of Evceptions,
ily; he had a claim for accident insuranee against, the
41 defendant Brotherhood of Railroad "Prainmen and. a
elaim for injury against (he defendant The Chesapeake
and Ohio Railway Company. whielk he would eolleet and
squander; plaintif! was withont means for the. support of
herself and ehildrven tind praying that the two defendants last
named be enjoined from paving any money to the defendant.
hg and that the plaintifl be allowed temporary alimony
for the support of herself and ehildren and permanent ali.
mony and other-and further relief upon the final hearing: |
A domporary injunetion was allowed as praved for on said
day and summons issued and served on the defendant's
Brotherhood of Railroad Trainmen and Ches: apeake and Ohio
Railway Company by delivering eopies thereof to their re-
spoetive Seeretary, .
That on Marely 17, 1981 there was filed in said court a
return of the Sheriff of Seioto County by his deputt, show
ing that summons was served on the defendant James B.
Moore bv delivering to him personally a true and eertified
- eopy thereet on January T2. D98h, on February 6, 198t the
defendant James B. Moore appearing solely for the pur
pose of the motion herein referred to filed a motion to set
aside the returv last referred to for the reason that said sum-
Mons Was not served upon him by delivering to him person-
ally aotrne and eertified eopy thereof as stated in’ said ‘re
turn and for the reason that he had not otherwise been served
With summons in said eause, together with his afidavit that
he was not in the City of Portsmouth, County of Seioto, Ohio,
Orin the State of Ohie, on the 1th day of Jannary, 1931,
xed Was not personally served with summons iit satd eause
on said day or anv other day.
On February 10, 1981 The Chesapeake and Ohie Railway
Company tiled in-said cause ifs separate answer alleging
that it was not indebted to the defendant James BL. Moore
and had no funds in its hands belonging to him; on Mareh:
17. 1981 said cause was heard on said motion of the de-
42> fendant James B. Moore and was submitted to the eourt
upon the pleadings and the evidence and the: court be-
ing fully advised in the premises found that the Sheriff did
not make personal service as returned by-him, but that he
‘Aad serve said defendant by leaving a cortified copy of. said
summons at Number 3102 Galia Ave., Portsmouth, Ohio,
said number being the nutnber set out in the petition of the
plaintiff as the. residence of said defendant.
Defendant's Exhibit 5. ° 33.
It was thereupon ordered, adjudged and decreed that said
motion be, and: the same was, overruled and the Sheriff was
ordered and directed to file an amended return forthwith
showing the actual faets of said serviee and showing that the.
same was left at-Number 3102 CGalia Street, the reputed resi-
~ denee of the defendant,.to whieh ruling the defendant Moore
excepted and an amended return was filed by the Sheriff on
Mareh 17, 1931 showing that summons, was served upon
James Be Moore by leaving at his usnal place of residence a
true and duly certified copy thereof on January 12, 1931.
433 There was then introdueed in’ evidence DEFEND-
ANT'S WXEIBIT 5, being a certificate of the Clerk of
the Corporation © ommission of the State of Virginia, of the
following tenor:
6. a oe
Commonwealth of Virginia
Department Of the State Corporation Commission.
I, N. W. Atkinson, Clerk of the State Corporation Commis-
sion, do hereby certify, that The Chesapeake and Ohio Rail-—
way Company is a corporation organized and existing under
the laws of the Commonwealth of Virginia, and empowered
and authorized as of this date to exercise its corporate fune-
tions.
In Testimony Whereof, [ hereunto set my hand, and affix
the Official Seal of the State Corporation Commission, at
Richmond, this 18th day of April, 1991.
N. W. Atkinson
(Seal) , Clerk of the Commission,
44 The defendant the sreupon rested.
The plaintiff, to maintain the issues on his behalf
joined under the plea in abateme nt, introduced the testimony
of the witnesses and the doc ‘cumentary evidence hereinafter
mentioned which testimony on direct, cross and re-direct ex-
amination, together with such doc umentary evidence in con-
densed and narrative form is as follows:
24 | ~ Bi of Raveptions.
/ : |
RLAINTIFE’S EVIDENCE,
Ht was shown bythe reeord that this cause was filed in the
Distriet Court of the United States for the Northern Dis-
trict of Indiana, Fort Wayne Division, on January 15, 1931,
FLORA WK. O'BRIAN: »
Iavéet. Rramination.
° .
Vlixe with my Tusband at 825 West Berry Street, Fort
Wavne, Indiana. T met James B. Moore on Jqnuary 12, 1931.
He was looking for a room. He eame back on January 13 and
paid $10.00 for a week's room, board, and garage spaee for
ear and tools. Te moved into my home’ on January 13th,
bringing with him on that dav his suifease. Tis trunk was
sent te my home by express within a day or so. He had his
eay with him when he eame to my home January 13th but
not tools. The tools he brought later. He has heen absent
sinee January 13th from Ft.-Wayne to my knowledge two
or three times fora day or so at atime. He would leave by
automobile. He would not have any teols.with him when he
would leave Fort Wayne but would ‘eome back with tools. He
did that two times. He stored his tools in the garage. “He
has kept his trunk, antomobile and tools at my home ever
sinee they arrived. Ue has lived continuously at my home:
sine Jannary 13, 1981. He rented a room by the week. He
wanted to rent by the month. His ear had an Ohio
4) license and he asked how long he could use it in Indiana,
and later changed to an Indiana license whieh he has
= maintained. He and my husband have gone to the ad-
cent country looking up land values, his purpose being to
And a truck garden. He has expressed no intention of leav-
ing Fort Wayne, but has kept at my home everything he
brought there.
Cross-Exramination.
His trnnk came by express within a week after he first
came. He first brought tools two or three weeks afterwards,
and in another week or so he brought more tools. He was
away two or three times for a day or so and went with his
cat every time.
Testimony of James B. Moore. 35
46. JAMES B. MOORE:
Direct Hramination.
-T dive at 425 West Berry Street, Fort Wayne, Indiana,
and took up my residence there on January 15, 1931, with
Mr. O'Brian, paying $10.00 a week for room, board afid
garage for-my ear and tools. | took my car there on that .
day. The trufik was delivered a few dlays afterwards, and I
have lived, taken my meals and kept my ear there continu.”
ously since January 13, 1931. Prior to this Thad been room-
ing at Raceland, Kentucky, at Samme Lewis’ for a few
months while. working for The Chesapeake and Ohio Rail-
way Company at Russell, Kentucky. My family lived nt
#102 Gallia Street, Portsmouth, Ohio, thirty miles from Race-
land. J left Raceland on January 10, 1931, prior to which T
had seen my wife and children about once a week. To made
about $200.00 a month, giving my family all but my expenses.
Leaving Raceland, [| brought all any belongings Fort
Wayne, Indiana, except some heavy tools which I arranged
to have sold. | have no other property at Russell, Kentucky,
or Portsmouth, Ohio. PT made up my mind to leave for Fort
Wayne on January 9, 1991, when To saw in the Portsmonth
paper that my wife had sued me. The next morning I asked
her if it was true and she said yes. [got my clothes at Race-
land, said goodbye on the 11th, and came to Fort Wayne. I
have not gone back to where my wife and family live since
Japuary 11, 1931, and told my family on that day that I was
going to make my hore elsewhere. “I made several trips out
in the country seven or eight miles to look over land and in-
quired as to its value with a view to purchasing a small farm
at Fort Wayne. I changed the ‘license on my car to an Tn-
diana license for 1931, and have not since used the Ohio
license. \
Cross-Examination.
T think I got the Indiana license on February 24, bnt have
never had an Indiana driver’s license. Nothing was said to
me about getting one. I was first in Fort Wayne on De-
47 cember 22, 1930, and left on December 23. I knew no-
‘ body in Fort Wayne except Teeter and Hartzler. I
came on the 22nd with Mr. Davidson and drove through. I
36 Bill of Exceptions.
was through Indiana six or seven years ago to Chicago and
back. I have never voted in Indiana nor in Ohio since Jan-
uary, 1931, there being no election there that I know of. I
was at my house since January 3, 1931, and since January
11 or 12th have been to Raceland, Kentucky, two or three
times. ees | we
Redirect Examination.
I applied for my Indiana automobile license on February
24, 1931, while living at 825 West Berry Street, Fort Wayne,
' Indiana. '
_ PLAINTIFF’S EXHIBIT 4, being the automobile’ license
issued to the plaintiff under date of February 24, 1931, and
showing his residencé as 825 W. Berry St., Ft. Wayne, Ind.,
was read in evidence. yee
~I came to Fort Wayne on December 22, 1930, for the pur-
pose of bringing suit against The Chesapeake and Ohio Rail-
way, and suit was filed in this court on January 10, 1931,
predicated on the fact that I was engaged in interstate com-
merce at the time I was injured. I then saw Dr. Elston, who
treated me, and I have since been under his care. It is my.
intention to remain living in Fort Wayne, Indiana, per-\
manently.
JOHN LOCHMONDAY: —
Direct Examination.
I am chief deputy clerk of the United States District
Court,.Northern District of Indiana, and identify Bar Docket
No. 3.
JAMES B. MOORE recalled: ~
Direct Examination.
I came to Fort Wayne on December 22, 1930, to file the |
‘suit filed on January 10. . :
Plaintiff thereupon rested.
48 | The court then made the following ruling: The court
now finds that the plaintiff is a citizen of the State -of
. *
Deposition of J. G. Rayburn. 37
Indiana and a resident of the City of Fort Wayne, Allen
*.” County, Indiana, and finds against the defendant on its sec-
- ond paragraph of its plea in abatement which is addressed ©
_ to the second, paragraph of the complaint.
~ To which ruling of the court the defendant. at the time
excepted. .
And be it further remembered that after the court had
found against the defendant on its plea in abatement the de- -
fendant filed to the complaint its answer in denial and there-
upon and-on said 27th day of April, 1931, said cause came
on for trial on the issues joined by the complaint and said
answer, and a jury, having been empaneled and sworn, the
plaintiff to maintain the issues so joined, offered and intro-
duced the -testimony of the witnesses and the documentary |
evidence and the parties made the stipulations hereinafter
mentioned, which testimony, by depgsition or from such wit-
nesses in person, on direct, cross.and redirect examination,
togéther with such documentary evidence and stipulations all
in condensed and narrative form, is as follows:
PLAINTIFF’S EVIDENCE. .
Pitf’s. Ex.
It was stipulated that the defendant is a Virginia corpo- .
ration and at the time the plaintiff sustained his injuries was
an interstate ‘railroad operating through Illinois, Indiana,
Ohio, Kentucky, West Virginia and Virginia as a common -
carrier by steam railroad and that at the time this action was
commenced it was doing business within the territorial juris-
diction of the District Court of the United States for the’
Northérn District of Indiana, Fort Wayne Division. -
49 J. G. RAYBURN. Testimony by deposition, introduced
as plaintiff’s Exhibit 5: vrs
Direct Examination. |
I have been assistant general car foreman at Columbus,
Ohio of The Chesapeake and Ohio Railway Company, a steam
railroad corporation, engaged in hauling freight and pas-
sengers from state ‘to state, for twenty-one years. I super-
vise car department employees and repairs to cars. Cars are
inspected by the transportation department and the principal
“2 v
an i ee el
‘
‘
38 , Bill of Exceptions.
- defect of bad order cars marked on a bad order card. They
are then placed on the repait track and again inspected by
the gang foreman of the car department and in case of doubt
_the attention of myself or C, Ff. Khirman, supervisor, is called
toit, Ehrman works at Parsons yard, Columbus, Ohio. The
‘company bas no* paint shop at Columbus, that work being
- done at the Russell car. shops. IT never heard of a Raceland
ear shop. The post office \where they are located is Raceland.
Ratcliffe is. foreman of the Russell ear shop. Raceland is
approximately three miles, from Russell, Kentucky. Plain-
-tiff’s Exhibit 1 is a blank eard applied to a car sent to-the -
Russell Car Shop from Parsoits Yard for real heavy repairs
or a new paint job. The form is. made out by Gang Fore-—
man Hughtmacker or Clime or on information furnished by
them. It indicates that it ig coming from Parsons Yard to
~ Russell Car Shop ‘for repairs. We dont fill in the date and
where it says ‘‘consigned to’’ we ordinarily fill in the name’ |
-of C. V. Rateliff. We de not fill in the blank. “‘forw arded by’’
and following the. words ‘‘order of’ C. V. Ehrman is filled
in with a‘stamp, typewriter or handwriting. The card is then
tacked on the cardboard on each side of the ear. I do not
know what is done with it afterwards. I have no record of
ears C&O 20031 and 54069 being on our Tepair track.
50 Plaintiff's: Exhibit’ 2 is Form 265 used by_ inspectors.
Car C&O 33555 was on our shop track November 24,
1930, inspected for Safety Appliance défect and none found.
- It was sent to the Russell Car Shop for repairs that in our
‘opinion were necéssary for a draft sill defect. We applied
_form BF 4. Plaintiff’s Exhibit 3 is a,card used by the car
department at Parsons with reference to car C&O 33555
empty on November 24, 1930. .C. V. Ratcliff appears on it in
handwriting, also draft. sill broken and indicates that the car
should be billed to Ratcliff at Russell Car Shop for that de-
fect. _We bill those cars to those people and then they use ©
. their judgment. I don’t know what they do wi ith it. When
the C. & O. took over the Hockmg Valley we used the forms
that the Hocking Valley had. Car 33555 was consigned by
our department at Parsons terminal, Columbus, Ohio, for
the work designated therein to be done at the Russell Car
Shop and was consigned to C. V. Ratcliff, its superintendent.
The card is_a record kept in the usual course of business. -
. This car was on our repair traek on November 25, 1930 and
we made out another card or record concerning it, the words
| ‘~ shop”’ indicating that no Safety Appliance defect ex-
Fe.
Deposition of J. G. Rayburn. 39
*-isted at that time. Form L-265 shows C&O 33555 and all .
other cars found on the track and shows center sill cracked.
This (indicating) is ‘‘bad floor shop’’ and means that the
car is supposed to come to.our repair track at Parsons. We
sent it to the Russell Car Shop because of difference of
opinion relative to the class of work to be done. C&O 33559
was a flat bottom steel car. Plaintiff’s Exhibit 4 is Form
L-265 with reference to car HV 21342 and shopped by our
inspector on account of broken center sills on November 26,
1930. That was a heavy repair. Plaintiff’s Exhibit 5 is sim-
ilar to plaintiff’s Exhibit 3, referring to HV 21342, C. V.
Rateliff’s name on the card indicates that the car was to be
billed to Russell Car Shop for the repair of center sill.
. Form BV 4 is one shop card. We have another called
51 the bad order car. BF 4 is the only form used on the
ears going to the Russell Car Shops. Sometimes Erh-
man signed his name to the form BF 4 but most of the time
‘ it is put on by myself or the Gang Foreman. I have no rec-
ord of cars C&O 3467, Virginia 11838, NKP 31549, C&O 58038,
Wabash 8505, C&O 64481, and C&O 44035.
There were then admitted in evidence:
PLAINTIFF’S EXHIBIT 8, being Plaintiff’s Exhibit 3 in
the deposition last referred to, bearing the initials and car
number C&O 33555 dated November 24, 1930 and in a column
headed ‘‘Repairs Made’’ the words “C. V. Ratcliff, Df. sill
_
PLAINTIFF’S EXHIBIT 7, being Exhibit Number 2 in
the deposition last referred to and setting forth the following
information: The Chesapeake and Ohio Railway Company—
Record of Cars Shopped for Repairs, Place new yd, Date
11-23-30, Initial and Numbers C&O 33559, Defects center sill.
EXHIBIT NUMBER 9, being Exhibit Number 4 in the
deposition last referred to and setting forth the following
information : Pace 2nnn.-2:-..:::cxcceeecceeeeeee Road, Date 11.26, 1930,
Initial Number HV 21342, Defects billed for shop center sill
_ bro BR”’ together with the signature of the inspector.
EXHIBIT NUMBER 10, being Exhibit Number 5 in the
deposition last -referred to and designating car HV 21342
empty dated November 26, 1930 and in the column headed
‘Repairs Made”’ B ‘‘1 center sill bro C. V. Rateliff.’’ .
Ex. 11,
40 Bill of Exceptions.
C. F. ERHMAN. Deposition introduced as Plaintiff’s Ex-
hibit Number 11:
Direct Examination. ©
I am General Car Foreman of The Chesapeake and Ohio
. . Railway Company, a steam railroad extending into Virginia,
West Virginia, Kentucky, Ohio, Indiana and Illinois. I have
charge of the Colybus terminal. Cars that come in trains
through Columbus to Parsons Yard are inspected by me- .
chanical men in the Transportation Department and if
52 found to require repairs, have a form made out and
tacked on them indicating the principal defect and are
taken out of the train and placed on the shop repair track
_in the Parsons Yard. The heavy repair work is not done at
Parsons Yard but at the big shop at Raceland, Kentucky.
We send the cars to the Russell Car.Shops. We don’t spe-
cify Raceland, Kentucky, we say Russell Car Shops. It is»
not in Russell and I didn’t see any other town. It is six or
eight miles out of Russell. The terminal office is at Russell
and trains from Columbus first stop at the terminal at Rus-
sell. C. V.. Ratcliff is the shop superintendent of the -Rus-
sell Car Shops where we send these cars that require work
to be done. I am in charge of the Car Repair Department
at Columbus. The company has no paint shop at Columbus,
the painting and heavy repairs being done at the Russell Car
Shop. When a car is sent to the Russell Repair Shop for
heavy repairs we make out a card similar to Plaintiff’s Ex-
hibit 1 form BF 4 indicating the initials. and car. number and
showing it consigned to Russell Car Shop and sometimes C.
V. Ratcliff. We don’t put the defect on it. It then leaves
our track and we presume is forwarded to the Russell Car
Shop for that work. According to plaintiff’s Exhibit Num-
ber 3, C&O car 33555 was consigned to C. V. Ratcliff at the
Russell Car Shops for heavy repairs and the same is true
with car HV 21342. My name is put on the card with a
rubber stamp and this is done by my authority. This is the
way the work was done on and prior to wovember 29, 1930.
Court adjourned to April 28th.
Deposition of John A. Robbins. 41 .
JOHN ‘A. ROBBINS’ deposition. Introduced as Plaintiff's
Exhibit 12:
Direct Examination.
_ Iam Car Foreman of the light side shop repair yard of the
C. & O. Railway at Russell, Kentucky, which is a division
point on the railroad. This is a yard for light or running re-
pairs, the heavy or dismantling repairs being done at the
Raceland Car Shop west of the C. & O. yards. After we go
to work at seven o’clock in the morning if there are any
53 cars on Track’ 2 the Clerk checks the cars on the switch
list. They are ordinarily placed there at night or in the
morning.. Repairs are made during’ the day.. I direct the
work. Exhibit Number 1 is a switch list on Number 2 Shop
Track east bound yard dated November 29, 1930, the time
9:35 indicating the time the cars were set on the track. No
heavy repairs were made. Those-repairs were made at the
shops. The pencil writing HV 14908 new shop paint order
means a Hocking Valley car was sent to the new shops for
painting. It is west of the Transportation Shop in Russell,
Kentucky. Where no other carriers letter appears the num-
- ber of the car is a C. & O. car. No record is kept of when
these cars are moved off the track or of the work done by a
particular engine. I understand that Moore’s accident hap-
pened on the lead, a track which leads to the east bound yard.
They are pulled from the Transportation Yard down the lead
to the west end of the repair track. Number 2 runs east
and west and you have to-pull the cars from the west end of
the repair track and shove them up to the lead. Plaintiff’s
_ Exhibit Number 1 is a complete record of all cars on Track
Number 2 that day. On car 58533 on November 29, 1930
knuckle pin was applied to BN and air brakes were cleaned
and tested, being light running repairs taking about 14 hours.
This car was switched from the train into the transportation
yard. I don’t know where it came from. If they are shop
cars with light repairs they remain on the track and if heavy
repairs they are sent to the shops. Where the repairs are
light and running repairs and the cars are not taken out of
service repairs are made on shop track 2 and the ear per-
mitted to carry on its trip. The work on 58533 was done on
Number 2 Shop Track. It was withdrawn from service .about
13 hours until the repairs and inspection were made and
shoved back to the train for the continuance of its trip. - If it
Pitt’s. Ex.
ee mths Fe te teraanet 2 ——
.
is .
>
42 | Bill of Exceptions.
had required heavy repairs it would have been sent to the
shop. On HV 14908 knuckle pin was applied on the A
54 pre and the air brakes tested on Number 2 Repair Track.
I sent it to the new shop but have no knowledge or ree-
ord of any further work. ‘The work on Track 2 was a run-
ning repair, taking thirty minutes. All the cars on that train
at any one time would have whatever work that was called
for done before any one of the cars would be moved and upon
the completion of all cars they would all be moved at one
time. This was the way the work was performed/6n No.
vember 29. On C&O 112161 knuckle pin was applied to A.
end taking five minutes. This was a running repair. C&O
20439 received no repairs but was inspected and sént to the
new shop on account of a loose sill. It would have tg be with-
drawn frdm service which I ordered done and thi< would be
a heavy repair. I don’t know whether the repair was made.
On C&O 110140 raising bolts were applied or a light repair,
requiring one hour. It was sent to the new shop for painting.
No repairs were made to C&O 22371 which wag sent to the
new shop for sills. It would be-withdrawn from service. HV
13062 had knuckle pin applied to the A end, taking ten
minutes, a running repair after which it was sent to the new
shop. On C&O 70311 knuckle pin was applied to B end, tak-
ing about five minutes, a running repair after which it was .
ready for active service. C&O 33782 had coupler removed
from A end yoke-rivits applied and knuckle pin applied on
B end, taking 24 hours,—running repairs, after which it was
ready for active service. The last two cars were not ordered |
sent by me to the new shop. 22186 was sent.to the new shop
for sides. HV 34715 had knuckle pin applied to B end, a run-
ning repair taking five minutes; after which it was ready for
‘active service. (C&O 68176 had air brakes cleaned and
tested, taking about two hours and fifteen minutes. This was ,
a running repair, after which it was ready for active service
and was not ordered sent to any other shop. C&O 31009
55 received grab iron and raising board on A end, repacked
as per rule 66, and brake step, bracket and carry iron
bolt placed on B end. C&O 61548 receiving trucks spring
tap and bolt and raising boards on A end—light running re-
pairs, after which the car was ready for active service. It
was not ordered sent to anv other shop. 78194 received
knuckle pin on the B end. which was a running repair and
was sent to the new shop for paint. HV 21810 received rais-
es” -—-——S
Deposition of John A. Robbins. 43
ing boards on the B end, carry iron shim on the A end—a
running ‘repair taking one hour and fifteen minutes, after
which it was ready for active service. C&O 54327 received
knuckle pin on A end, raising boards, carry iron, shim on the
A end, repacked as per rule 66, air brakes cleaned and —
tested—running repairs taking about three hours, after which
the ear was ready for active service and not ordered to any ©
other shop. C&O 55792 received raising boards on the B
end, taking about one hour, a light repair; it was not or-
dered to any other shop. C&O 37778 received grab iron
starter on the A end, taking ten minutes, a running repair,
‘after which it was ready for service, there being no further
order directing it to any other shop. C&O 55046. received
truck spring cap and bolt BL, a light running repair taking
one hour. There was no further order on this car. C&O
51754 received ‘knuckle pin applied on AB end side bearing
shoes AR and AL carry iron shim on the B end—a light run-
ning repair. No further work was ordered. C&O 52224 was
sent back to Number’2 Track for braces. Tie braces were
placed, requiring two hours, after which it was ready for
- active service, there being no order made to send it to any
further shop. C&O 113096 received knuckle shim on A and
B end, side bearing bolts B. L. and sent to new shops for re- —
painting. These were running repairs taking three-quarters
of an hour. C&O 71375 were: repacked as per rule 66 and
cross-over pipe tightened, taking about one hour. It was not
sent to any other shop. C&O 38740 had a draft gear
56 applied, taking about 23 hours, a light repair, after which
it was ready for active service. It was not ordered sent
to any other shop. 58533 was on the west end and 38740 on
the east end. They would all be moved off together. Track
Number 2 is used for the repair of any car that is placed on
it and is on the south side of the yard. It will accommodate
about twenty-five cars. It is on the north side of the light
side repairs yard Number 1, being the most northerly track
and Numbers 2, 3,4 and 5 being south of it. The next track
_south of Number 5 is the old lead, which is not numbered. °
‘Number 18 is in the east bound Transportation Yard. As
trains come into the Russell Yards cars are switched out for
repairs and placed.on Number 18 and then moved to one of
the five repair tracks. Ordinarily they are moved off Number -
2 track after all the repairs are completed in the evening or
morning ‘or sometime during the night and other cars on
Track 18 are placed on Track Number 2 for repairs. Cars
ne
LOL PR AL LAL LLLP PLE LLL a
44 . Bill of Kaceptions,
repaired ou Track Number 2 on November 29, being the ears
referred fo, would be switehed into the east bound Transpor-
tation Yard where trains pull into and are made up. Trains
xoing fo other parts of Kentueky and other states are made
up. in the Transportation Yard: The C. & O. railway ex:
fends into’ West Virginia and Virginia and trains enroute
West-or points east of Kentucky are made up inthis Trans:
portation Yard. Russell is a.division of the railroad and all
freight trains are inspeeted for any running repairs neces
sary fo be made. Uf running or heavy repairs are found
-Neeessary on any ears they are shopped out oof the train, the
repairs made and the ears are then moved onto their desti
nation, Some repairs are made iw the Transpértation Yard
and after the repairs are made the ears sent on to their orig:
inal destination. Hf running repairs are necessary they are
made at Russell for the purpose of expediting the movement
of these ears to their destination. The C)& O. Railway ex‘
fends westerly through Ohio, Indiana and Ulinois and
o¢ does business in Pern, Garrett and TLammond, Indiana.
The train enroute from Ohio to Virginia on the CL & 0.
lines has to operate throngh Russell, Kentucky and when that
train comes into Russell it is eustomary for the ears to be
inspeeted for the making of any running repairs, in whieh
ease the, movement of these cars are disconnected until the
repairs are made. Some of the repairs ean be made while
the ears are on the train. Where they require the work. of
one anda half or two hours they are switehed out of the train
so as not to hold it up, the car is switehed out of the train
immediately and the neeessary time Ahey generally take for
running repairs is, I suppose, about eight hours. If the ears
were moved T had no reeord of them. The prineipal business
of the C. & O. Railway Company is hauling coal. from the
mines-of West Virginia atid Kentuéky. Flat bottom ears are
built with a flat bottom and the open type with the bottom
sloping so that they can be opened to let coal out. Some of.
the flat bottom ears have opens in the bottom. The ears on
Exhibit 1 were supposed to have come in on trains from the
west. They came in, say from states like Tllinois, Indiana
and Ohio from the west and go to states like West. Virginia,
Virginia and states to the east.
Cross-Examination.
Trains from the west might come from points in Kentucky
and trains in the east might go to Kentucky.
oe ee es ae
Deposition of John A, Robbins, 45
On Recall Direct Hxamination.
The repairs had not been made to the cars on Plaintiff's
Exhibit |} when the eheek of the same was made af 9:35 A. M.
on November 29. They are removed after the repairs are
made, The cars theeked at 9:55 A. M. that morning must
have been cars placed on the track after the cars moved from |
it at-wix A. M. had been, moved off. They were placed there
at 9:35 A. M. ‘The shop crew started the work on that shop
track on November 29 at 7:30 A, M. and worked until 400
© P.M. exeept a half hour for lunch between 11.30 and 12:00.
We had no night crew working on this shop track. Cars re-
paired on Track 2 on November 28 were repaired be-
58 tween 7:30 A, M. and 4:00 P.M. November 28 and 9:35
A.M. November 29. [1 was the practice but not at all
times, for. the cars to’ be moved off before 7:30 A. M. but
sometimes the cars repaired the day before are not pulled
until some time the next day. ixhibit Number 2 is a list of
Number 2 Repair Track east bound yard for November 28,
1930 and consists of twenty-one cars, They were placed and
delivered the evening of November 27 or the-morning of
November 28 and repairs were made then between 7:30 and
4.00 P. M. of November 28, 1930, They were moved before
9:35 A.-M. November 29, 1950 and the cars shown on Plain-
tiff’s Exhibit Number 1 were then placed on Track Number 2
for the repairs to be made on November 29. Thosé on Ex-
hibit Number 2 were cheeked from the east end of the track.
Light running repairs consuming approximately two hours
were made to the first car on the list C&O 38740. Draft-gear .
applied on BN and the car was then ready for road service.
It required no further repairs to be sent to the shop. The
next westerly car was C&O 90031, which was sent to the new
shop. The slip doesn’t’ say for what purpose it was con-
signed to the new shop while it was on my shop Track Num-
- ber 2, and that is’ what its destination was. Following that is
58038 repacked as per rule 66, air brake cleaned and tested.
This was light running repairs and required two and a half
hours and it was then ready for the road. No repairs were
made to C&O 20031 on Travk 2. No work was done on C&U
54069 to be sent to the new shop on account of the new sill.
On C&O 65102 the air brake was cleaned and tested, a. light
running repair taking two and a half hours. - The car was
then ready for the road and for.the continuance of its move-
ment. On C&O 56207 the tripple valve was cleaned and
tested, a light running repair taking one-half hour, after
— 46 Bill of Exceptions.
which the car was ready for road service. The next car was
VGN 11838. VGN stands for Virginian Railway Company,
which runs. through West Virginia and Virginia. No
09 part of it extends into Kentucky that I know of. It was
repaired with one 1-inch by 10-U brake hanger L. 4., a
light running repair requiring three-quarters of an hour. It
was then ready for movement. I do not know where to. It
was on the east bound repair track used for east bound cars.
Virginia is east of Russell, Kentucky so if it. was. enroute
back to the Virginian Railway Company, it would be enroute
through Russell, Kentucky and east of Russell, Kentucky
into Virginia and West Virginia. We made the repairs be-
cause the-cars were not in safe running condition. It was our
practice to make repairs to foreign cars in order to expedite
the movement of these cars to their respective railroad car-
riers if they were going back there. I don’t know where this
car was going. The Virginian Railway cars are pulled out
to the east. It could have gone back to the Virginian Rail-
way Company or to West Virginia to the coal mines. It was
_ empty. It is not at all times a practice to return empty coal
ears to.their respective carriers. Sometimes the C. & O.
Railway Company has foreign cars leased. Wab. 8505 had
the air brake cleaned and tested, as per rule 60, light running
repairs, taking two and a half hours, after which it was
ready for future movement to its destination. The Wabash
Railway Company is in Indiana and does not. come into Ken-
tucky. The C. & O: connects with it in Indiana. C&O 17916
was repacked as per rule. 66, side patched, a light running re-
pair taking approximately two hours, after which it was
ready for the road.: C&O 33145 had coupler removed and
rivits applied en the, B end, light running repairs taking
‘about three and one-half hours, after which it was ready for
the active service. C&O 30958 received light running repairs
taking about three and one-half hours, after. which it- was
ready for active service. NKP 31549 is'a Nickel Plate Rail-
road ear. Nickel Plate is located in Ohio and Indiana:. No
part of it extends into Kentucky. The C. & O. has a‘con-
60 nection in Ohio and Indiana. It received light running —
repairs, taking about three hours, after which it was
ready for road service. HV 13877 received light running re-
pairs, after which it was ready for road service. C&O 64481
received light running repairs, taking about four and one-
_ half hours, after which it was ready for road service. CC&O
stands for Carolina, Clinchfield and Ohio Railway Company.
Deposition of John A. Robbins. | 47
‘I do not know whether it extends into Kentucky. Light run-
ning repairs were made to CC&O 44035, taking about one
and one-half hours, after which it was ready for the road.
SBPX stands for the name of some coal company, a private
ear line. Light; running repairs were made to SBPX 201,
taking about ten minutes. C&O 34679 received light running
repairs, taking about three and one-half hours. It was then
ready for road service. C&O 33282 received light running
repairs, taking one and a half hours and was then ready for
road service. No repairs were made to C&O 33555 which was
sent from Parsons Yard in Columbus, Ohio to the new shop’
at Russell, Kentucky. I do not know what work was to be
done. It was first placed'on Shop Track Number 2. HV
91342 is a Hocking Valley car -which came from Parsons
Yard, Columbus,.Oho to the new shop at Russell, Kentucky
and was placed.on my track before being sent to the new |
shop. The mew shop is about one or one and a half miles:
west of Track Number 2 and Columbus is north of Russell,
the railroad from Columbus to Russell extending in a north-
erly direction. Running repairs, taking three-quarters of an
hour were made to 61355 and it was then ready for road
service. The ears numerated were stationed on the track’
with 38740, the most easterly-car and 61355 the most westerly.
ear. In order to move car 33555 off the shop track to the
new shop it was first necessary to move either the car east of
- it'or the car west of it in order to get hold of this ear. I-
‘don’t know how it was moved. The practice on November
29 was to move all of these cars off the track . at
61 the same time. The cars going to the classification track
_ would be moved there, those going to the new shop to be
assigned to another track to go to the new shop and would be
moved at the’same time. Car 33555 could not be moved to
the new shop without moving the cars east or west of it. The
repairs I have told about were all made to these cars and
those that were.taken ‘to the new shop were taken there for
the work called for so far as I know. Another crew, the
' switch crew, would do that work and I had nothing to do.
with it. ‘ | :
-Plaintiff’s Exhibit. 13,. being Exhibit 1 in the deposition of
_John A. Robbins, was introduced and was as follows:
48 Bill of Exceptions.
Tue CHESAPEAKE AND wd a CoMPANY
Switching Report for Car Repair Tracks.
Mr. G. Y. M. Place Russell, Ky.
Date 11-29 1930 Track No. 2 Time 935 AM M
Initials © Number xX - Remarks
WE
58533 - 4
HV 14908 New shgp paint ,
75686 | - New shop paint
112161 New shop paint
~ 20439 _ New’ shop
110140 _ . - New shop paint
22371 New shop
HV 13062 New shop paint
70311 oaks
33782 3
22186 New shop
HV. ~—:34715
eos 68176 | * .
31009
61548
78194 ’ New shop paint
HV 21810 ze |
ids 54327
. 55792
a 37778
55046
51754 ;
52224 Set Back
113096 New shop paint .
_ + 713875
38740
“s ' X Indicate Loaded.
. Reported this track by phone at 4 P M M.
. J. H. Burns,
Foreman.
Plaintiff's Exhibit 14, being Exhibit 2 in’, the depo-.
sition of John A. Robbins, was introduced and was'as follows:
(rte tan Si ae cl Ne A RSE AG
Plaintiff’s Exhibit 13. . 49
62 THE CHESAPEAKE anp Onto Ratpway CoMPANy
Switching Report for Car Repair Tracks.
Mr. G. Y. M. Place Ruscell, Ky.
Date 11-28 1930 Track No. 2 Time night M.
Initials “ Number X Remarks
EE
38740 - Set Back
20031 New shop
58038 tir.
54069 | New shop
65102 : ety
| 56207 |
‘VGN 11838 : |
Wab 8505
| 17916 lisid for crders O K
33145 ;
| 30958
UKP .. 31549 ;
HV 13877 New shop paint
| 64481 .s
CC&O 44035
SBRX, & 201
34679
: 33282 :
33555 New. shop
HV . 2142 . New shop
61355 xX |
Reported this track by phone at 4 P M M
Note. _ ...... Indicate -Empty.
X Indicate Loaded.
oe
J. H. Burns
Foreman.
Other exhibits referred to in the deposition were not intro-
duced in connection with it.
eA eee
50 Bill of Exceptioiis.
63 JAMES B. MOORE:
*
Direct Examination.
_ Fawill be forty-one years old June 30, 1931. I received my
injury in the Resell Yards; Russell, ‘Kentucky, while work-
ing for The Chesapeake and Ohio Railway Company, by
whom I had been employed for ten years and two months as
a brakeman. ‘My duties were switching cars, classifying
freight, pulling and refilling shop tracks, and cabbing trains,
The railway company maiitained at Russell a terminal or
_yard or division point where trains pulled iff to be switched.
Shop cars are switched out of them and trains classified and
switched to be sent to their destination. The next division
point west is Stevens Yards, 135 or 140 miles from Russell,
and twelve miles east of Cincinnati. ,. It is on the main line
which goes to Chicago. - Parsons Yard is a terminal main-
tained at Columbus, Ohio. That line extends south and joins.
the main line at Lineville, Kentucky, 18 miles west of Rus- .
sell, and continues eastwardly over the main line to Russell.
Raceland is on the main line’3 miles west of Russell, and the
Russell car shops, new shops,-what they call the Raceland
shops, are located a mile or a little further west.of Raceland.
Trains coming from Columbus having in their trains cars
going to the Russell car shops at Raceland, Kentucky, cross
the main line before you get to Russell, and it has*not been
the practice for these trains to stop at Raceland and .take
ears out. There is no yard there for switching them out, and
they continue to Russell. Cars consigned to the shop at
Raceland are switched out of the train and put on Track 2
and from there they go to 20 and from there to Raceland.
That was the practice on this railroad at all times I worked :
there. Repair tracks are maintained in the yard at Russell,
the east bound consisting of five tracks including No. 2. They
are used for outdoor running repair.track, that is, repairs
. Such as can be done in four or five hours. I have heard
64 the term ‘‘running” or ‘‘light’’ repairs used. Similar
tracks were maintained on the west side of the fard at
Russell. . Thosé on the east are used for cars going east,
those on the west being used for cars going west. No equip-
ment for making heavy repairs was maintained, at either
the east or west bound repair tracks. The repairs to a center
sill is a heavy repair. Heavy repairs were made at Hunting-
Fe
cence
; .
A
o, Testimony of James B. Moore. 51 ,
ton, West Virginia, when I first started on the C. & O., C. V.
Ratcliffe had charge of the shops. Cars coming to Russell,
Kentucky, consigned to shops for the making of heavy re-
pairs were sent to (*. V. Ratcliffe. Huntington, West Virginia,
at that time. The shops were moyed from Huntington, West
Virginia, to, Raceland, Kentucky, something like a year. be-
fore I got hurt. These cars were then sent to Raceland, Ken- |
tucky, to C. V. Ratcliffe. These cars would be taken off - :
Track 2 and taken to Raceland about 8:00 o’clock in the. ;
morning daily. The route used in so doing was as follows:
They were taken down.Track 20 and go down the receiving Ay
yard lead to the interlocking, across three main lines to the .
lead into the new shops through a gate. The distance from
Track 20 to the Raceland shops would be a mile and a half. yy
The repair tracks at Russell, Kentucky, are inthe open. The % ‘
shops at Raceland, Kentucky, .are closed. Separate depart-
ments have charge of. running repairs at Russell on the west
bound repair tracks and heavy repairs to Raceland, Ken-
tir Prt Fae Wee
tucky. Mr. Collins was in charge of the repair tracks at Rus- . '
sell, while Mr. Ratcliff% had charge of the shops at Raceland, 5
Kentucky. At Raceland equipment is maintained for the *
making ‘of heavy repairs and the painting of cars. There was "6
no such eyuipment in the Russell yard. Running repair "
_tracks were maintained at Columbus, Ohio, for cars going we |
through Columbus, and at Stevens yard, Kentucky. oi
I was hurt near six o’clock in the morning, November 29, |
1930. It.was dark and I had a standard signal lantern with
. me. ‘The crew consisted of Conley, conductor, Berkhardt,.
65 one of the brakemen, the engineer and fireman and myself,
a brakeman or switchman. When I got hurt, I was
switching out cars for the Raceland shops. We got the cars .
from Track 2 in the east bound repair yard at Russell, Ken-
tucky. The track holds about 25 cars and extends east and
ewest. We went up the shop track lead to Track 2 and headed *:
in there, engine headed east, and coupled on to the west end
and the cars were pulled out from the west end of the track. |
The track was pretty well filled. After coupling on to the:
westerly end of the cut the rest of the cars were coupled
up and moved off track 2 to the west on to the shop lead: track,
on which track I later got hurt. I had the switches all lined
up and as the engine and cars moved west on Track Number
2 I caught on to the head end of the second car east of the
engine for the purpose of receiving and transferring. signals
to the engineer. ‘ That was part of my duties. I got on the
- §2 Bill of Exceptions.
sill step on the east end of this car, whieh was Hocking Valley
21,342. That car come from Parso dd, Columbus, Ohio,
on the C. & O. Railroad. (The railwa¥ u&ed a BF 4 form card,
4.inches wide and.8 inches. long, tacked to the side of the car
to designate the destination of ears like this. This form has -
been used for a year. I saw such a card on this car, and
looked to see what was on it.: This information was placed
on these cards.in thé usyal business of the C. & O. Railway
Company. The BF 4 form card said: ‘‘From Parsons Yard,
©. F. Ehrman to Raceland shops, broken center sill, to C. V.
Ratcliffe.” C. F. Khrman was the general foreman of. Par-
sons yard, Columbus, Ohio. C. V. Ratcliffe was foreman of
the Raceland Shop at Raceland, Kentucky. The broket cen-
ter sill indicated heavy repair, for the making of which there
was no equipment or facilities on Track 2 at Rus-
sell, Kentucky.” Equipment for ‘such heavy repairs was
maintained at th® new shop at. Raceland, Kentucky.
The thin car from the engitie was C. & .O. 33,555, |
and. had a_ similar~ card: to that on.HV_ 21,342. I
observed and read what was on that. card. The car’
came from Parsons yard, Columbus, Qhio, and was going to
Raceland to the shops for heavy repairs. The cars between
the Hocking Valley and the engine was a C. & O. steel
66 hopper car, the number of which I did not get. I do not .
know whether it was loaded. The cars came to a stop
_ after we got them’ to the lead track. Conley was lining up
' switches. The cars were moved to the lead track to get out —
ears for the Raceland shops and whatever loads was in there.
The cars for Raceland shops are put on Track 20. Track 20
~ was the next track east of the lead where the engine and cars
stopped. In order to get the HV 21342 and the C. & O. 33555
out onto track 20, inasmuch ‘as these cars were the second and
third cars east of the engine and were coupled to other cars
east of them, we would have to switch them out until we got
to those cars, switch out the cats on Track 20 to Raceland
Shop and the others on the lead out of the way. That is what
I was doing that morning. After these cars were taken from.
Track 2, cars then on Track 18 were to: be placed on Track 2
for repairs. Berkhardt uncoupled the easterly car, a Raceland
shop ear, which went to Track 20. My duty was to cut the
next car, which was-not going to Track 20 but by the lead.
There is a cut lever or uncoupling lever fastened on to the
knuckle lock that connects on to the draw bar and coupled to
the end pin; push down on the outer arm and that raises
“
e
——— 7 7 . . . .
Testimony of James.B. Moore. | -§3.
the knuckle lock and permits the ‘car to uncouple. One of
these levers is on each end of the car and on opposite sides.
It consists of two parts; the inside and outside arm. The in- °
‘side arm is connected to‘the knuckle lock and to a lug on the
end sill. The knuckle lock and lock block are the same. The
lock block enters the coupler and Jocks the knuckles of the
couplers together, and in order to incouple the ears it is nee-
_essary to get the lock block up out of the coupler to release
the coupling by operating the lever. The two arms are about
24 fect jong. Both parts.are connected to the lug on the end
sill. You shove down on thé outside arm which raises the in-
side arm. The lever is about flush with the outside of the
ear, and about four inches‘below the .end sill which gives
clearance for your hand. That pulls the lock block out of-
the coupler, frees the knuckleéemd the cars separate. In tak-
- mg ‘hold of the push-down type of lever it. ordinarily and
usually does not require the brakeman to put any part of
67 his body between the cars to effect the uncoupling.
Berkhardt uncoupled the first ear while moving, called
a kick-off. In a kick-off as soon as the lever uncouples the
car the engine and ears coupled to it stop and the car that is
uncoupled goes on, coming t6 a stop of its own accord or
against other cars. I shoved down on the lever to operate
the lever on the third car, the lever.on the second easterly
ear being ‘on the opposite, side of the train, and that on the
third ear being on the south side. I could uncouple the third ,
car by operating from either car. It was a push-down type’
lever. I pushed it down and it went so low it pulled my
body between the carssand unbalanced me and throwed my
hand-under-the wheel and mangled my hand. I took-held--
of the handle of the lever and shoved it down in a normal,
usual and ordinary way. Ordinarily the lever makes ‘a drop
of 12 or 15 inches. On this occasion is made a drop of two
feet at least. Ordinarily in operating a lever of this type,
the handle descends to not to exceed 18 inches from the top
of the rail. This lever descends two inches or more below
the bottom of the axle. ‘The bottom of the axle is 134 inches
abeve the top of the rail. The handle of the lever was two
inches below that or within 12 inches of the frail. The
knuckle did not come up out of the coupler and the knuckle
did not release the coupler so as to effect an uncoupling at
that time. The cut lever pulled my body in between the ears
because it wént so low and was bent down and twisted where
the bolt went through the outside arm. I had operated.
° : ) | ) «
Bill of Exceptions.
many levers like this, but never observed one bent as this —
one was. The lever went past the center of the wheel and .
, - inside of the rail when [| puslied it down, and my body went.
, between the ears: inwardly about two feet:from the outside
b part of the ear in front of the wheel, and wy right -hand
, ee Was caught, run ever and mangled by the wheel.. This was
a hopper ear with a diamond arch bar, there is no other
. kind. 1 operated the levexg on the east end and south side
aes of the ear, The lever wag right in front of the brake shaft
‘ at whieh | grabbed to pull myself out Plajntiff’s Exhibit
‘ 15 is a pieture of the lever and ear 1 got injured with,
\ £8 The bend occurred where the bolt goes through the
\ lever,” The stop is over the inner part of the arm and
‘ controls the distance that the outside arm can go down. It
\ ‘is ordinarily so maintained that it will stop the downward
‘ action of the lever at giot to exceed 15 inches. The inside
arn’ comes in contact with the stop. The stop on this, car
} was bent up so that there was three or four inches clearance -
_ from the top of the arm to the stop with the. lever in the ..
position indicated in the pieture. The lever could still go
lower in the condition this stop was in. Plaintiff's Exhibit
15 is a true and reasonably correct representation of the
ear and its.appurtenancesgand the lever and the condition of
the lever on the morning T operated it and got hurt. (Plain-
tiff’s Exhibit 85 was examined by the jury.) After my hand
went under the wheel T velled.. Berkhardt came and stood
there until they shoved the. cars, which were.moving at 8 or
10 miles an hour, into the clear, the most easterly car being
still coupled to the other-cars- when they ame to a stop.
Conley came to my assistance and they took me to the C. &
QO. hospital at Huntington, West Virginia. They put me un-
der an anaesthetic and took my right hand off. I remained
there until December 16, and suffered pain while in the hos-
pital. I was in good health before the accident, six feet
tall, and weighed about 210 pounds. I now weigh about
200 pounds. I have been treatél by Dr. Elston, of. Fort
Wayne. My. arnipains ‘all the time, steady, and there is a
shooting pain which comes and goes several times'a day. I:
cannot stand anybody ‘pressing against or touching my arm
on the end. While I have been here it has become infected
and has to be opened, and is that way now: The pain is not
; as severe as it was at the start, but there has been no im-
F provement in the amount of pain since I left the hospital.
. I was nervous and upset and am unable to sit and concen- —
a a ae
%
Testimony of James B. Moore. 55
trate for any length of time. I was not nervous like that
before I-got hurt. I made about $200:00 a month. T worked
for the C. & O. ten years and two months with the excep-
69 tion of about one month.” We worked under arrange-.-
ments ‘where the first man hired has seniority over men
hired afterwards. My position was steady as long as I per-
formed my duties. I have not worked since I‘got hurt. I
was treated by Dr. Elston December 23, 1930, and January
12 or 13, 1931. The Chesapeake and Ohio Railway Company |
on January 15, 1931, maintained a ticket office at Marjon,
Grant County, Indiana, and was doing business in this -dis-
_trict at that time.
,
Cross-Examination.
I went to work at 11:00 p. m. November 28, 1930. The
yards are in the west end of: the town of Russell, the yard .
limits being indicated by a board, the west limit, being five
or six miles below Russell and below the Russell car shops.
The east board is near the east city limits df Russell. Thé
shops’ are. within the limits of the yards. We began switch-
ing cars off Shop’Track 2 between -5:00 and .6:00 o’clock in
the morning. I rode the engine in on Track No. 2 and-sat,
- there until the knuckles were opened by Berkhardt and the.
other brakeman. The engine moved castward, coupled the
cars together and backed out west with the ears: 1 caught
up on the second car from the engine and rode with them.
eight or ten car lengths on the curve where they transfer
signals. We. pulled on the lead, stopped’ and throwed the
switch over. I got off on the lead and stood there until I got
the signal from the man near the head-end to proceéd east-
ward, and transferred it to thé engineer. He moved for- .
ward. I observed the two cars HV flat bottom gondola 21342
and C&O flat bottom gondola 33555. I made no note of the
numbers. I do not know the numbers of any other cars in
that cut that night, nor-do I know the number or initial of
any other cars that I previously handled from 11:00 o’clock
that night, as I had no occasion to remember any of the
numbers. Thats the only two cars I read the cards on -the
side of. They was the gnly two cars in that-cut like that.
I always remembered the numbers of those cars, although
there was no occasion for me to. I can not recajl any other
particular numbers that I ever saw in my 19 years’ ex-
70 perience. I charged my mind with these-fWo:cars whose
numbers I remember; it was part of my business to re-
‘<-
56 a, Bill.of Exceptions: -
member it on that night to make the cut, I remember what
I read on those cards and without my memory being re- -
freshed by any other source T always hold in mind the num-
bers of those. two cars. .I was not near them at the time of ~
the accident. They were near the front end and the accident —
- occurred at the east end. They were the second and third
ears from the engine, one other car’ was between’ them and~
the engine. It was‘*in the 61,000 series; J don’t remember
the whole number. We had some 64,000 stries cars, a 24,000.
series Hocking Valley,.and 100,000 series. I.don’t remem-
ber the full numbers of any other ears. I thought about the
two particular numbers when IT was in the hospital and
hundreds of times after the accident. They- were the ofily
two white tagged cars in the cut, and-the particular occa-
sion for bringing that to my mind hundreds of times was on
account of the accident. T was thinking about the question
of interstate commerce from time to time; right away, ten or
fifteen. days or something like that after the accident. :
~~ One -ear was cut off prior to the accident. I was west-
“wardly, going toward the head end to do the cut. I had left
the two cars whose numbers IT remember and was walking
toward the east end of the cut. I got on a hopper ear, I don’t
know the number; had no oceasion to know it. I had more
-oceasion to notice thé numbers of the other two cars than the
one T got on the last time because it was in the line of ‘my
business. The two cars would have had to have gone to the
Racelaud shops after they. had these ‘tags on them. regard-
less of their. numbers.:' The first car was switched on fo No.
20, and we were proposing to switch it up the lead out of
the way, sa that we could get cars on to Track 20 that were
going to 13:..We were going to kick the second car out of
the way after we got the other car switched out and then
” couldn’t-take them to 13. I gave: the signal that Berk-
71 hardt gave me, a proceed signal, with a lantern, after
this car had been switched into Track 20. The engineer —
obeyed it. After that car was in 20, Berkhardt gave me a
stop: signal, throwed his switch, and gave me.a proceed
signal with his lantern: to cut or kick one car up the lead,
which I proceeded. to do. I gave no other signals after I
Started to kick this eastern car up the lead except the one
proceed signal, stop signal and another proceed: signal.
The inside arm of the lever is connected to the knuckle
lock which is also called the lock block. The lock ‘block is
down inside the coupler. The lever lays on top and the rest
°
Testimony of James B. Moore.. ey |
of it is inside the draw bar. The length of the knuckle lock
or lock block from bottom to top is 8 to 10 inches, the head
of the coupler itself probably 12 inghes. The'lock block works
entirely inside of the coupler or dréw-head, although a piece -
comes out the top. The up and down dimension of the draw
bar is about four inches more than that of ‘the lock block.
‘How far the knuckle block can travel up and down in the
coupler is according to how-the stop is adjusted. It is not
- true that the stop is only put on as an’ emergency where -
‘ something breaks and the connetcion between the lever and
lock block is entirely separated. I don’t know the depth in-
side where it works, but the lock block can come up further
than what it takes to release the knuckle. I do not know that |
it is true that the lock block with an up and down dimension
of 8 inches, working inside the draw head whose up and down
dimension is 12 inches, can not have a travel of more than ©
- four inches. I have no idea how far the lock block could
travel up and down inside the draw head. ..
I didn’t feet the lever go solid. When I let go it was two
inches below-the bottom of the axle, the axle being approxi-
mately 134 inches. above the rail. The lever traveled ‘to with-
in one foot of. the top of the rail or closer when I let go of
it. It was below my knees a couple of inches. I was stand- .
ing onthe outside of fhe rail which is 6 inches high and it
went 6 inches below my knee. It went a distance of two feef
’ below. the end of. that sill.
72 Q: How far did it travel did you say on your direct ”
* examination, two feet? ,
A. -Two feet or less.
Q. .Two feet or less?
A. ‘Two feet or more. .
How much did you say? .
A. I didn’t measure it I suppose; I am confident it went
two feet down within a foot of the rail or closer. é
Q. If I understand you right, when you first took hold
of it it was approximately three feet above. the rail?
- A. No, sir, I didn’t say that.
Q. Didn’t you say that it travelled two feet down sin
stopped about a foot above the rail?
A. I never said anything about three feet; I said it went
down within a foot of the rail to the best of my knowledge. |
: . If it travelled down two feet: from the time you first
took hold of it and stopped approximately a foot above the
— | } =
58 Bill of Exceptions,
rail wasn't it approximately three feet above the rail when
you took hotd of it? ‘
Mr. Davidson: [ object. It isn'toa fair contin, The .
-fact that it dropped two feet doesn't mean it was three feet ©
— above the top of the rail.
The Court: That would necessarily follow
Q. Read the question. :
(Question read) - .
A. It’ must have been.
~T didn't see any stap that night, but seen the bend in the
lever right where the bolt comes through near the eye.- This °
was toward the center of the ear and I noticed it clearly that
night. J saw the-entire lever with my lantern from the handle
‘on to the stop. 1 had little difficulty in getting hold of the
_ lever in the first instance. The lock block couldn’t come out
of the coupler. T know how it happened, that the end of the
lever*was travelling two feet while the lock block was travel-
ling about four inches, it depends on where it is coupled on
the end sill and the lever being bent went on down. I
73: didn't bend the lever any in the operation. The two
"arms of the lever must be about the same length; where
they fasten on the end sill is about the middle of the distance
from the knuckle lock to the énd of the ear; the outer end of
the arm reaches past the lock to get the inner am and this
enabled the lever to travel down two feet while the lock .
block was going up four iyehes. There is no hand hold or
grab iron on the end of the ear which is used for holding
with the left hand while operating the lever with.the right.
The levers are not operated with the foot. I have heard of
it and seen it done but it is not the proper way. I made only’
that one attempt to uncouple these cars. I did not push: tlfe
lever down to where it stopped; it didn’t hit anything solid.
The lever overbalanced me pulled me between the cars be-
_fore it hit something solid. I grabbed hold of the brake shaft
‘but -hit the end sill. I wanted to shove myself out. The
brake shaft is south of the draw bar right by the lever two
_feet or more from the outer edge of the car and extends
down. through the end sill. I caught at it above and just at
‘the top of the end sill. I reached for the brake shaft when I
was’ bent between those cars. No part of me touched the
ground or: ballast. I hit the end sill with my left hand: I
had a lantern in my right hand, it went under the car my
hand went under the wheel. The first person I saw was Berk-
hardt after the accident. . The train stopped right immedi-
-. Vea a ae ee és
T estimony of Roland ‘R. Schulz. 69
—
ately after the accident. Berkhardt stopped it. Berkhardt
ran tome. I had got up; cars made no attempt to stop, went
over my hand; She car wasn’t cut off. The stop was made
after that time. At the time of the accident the slack was
shoved up in the train and ran out when he stopped. the. en-
gine. _T suppose, was two or three car lengths from the east
car of those that remained in the cut when the train came
to a stop.
o. Redirect Examination.
I first saw the bend in the lever while T was between the
ears. I had a lantern in my hand.
Recross Reomination.
My. head was ‘right close to the bend; in that lever at the .
time T was in between the cars. 1 don’t recall seeing
74. the stop. I hadn’t seen thg pend when.I first took hold ~
- of the lever. When I saw-¥I was facing the.draw bar
my héad was going toward the draw bar when I grabbed
nearly opposite about from it and looking for something to
grah hold of. I saw the brake staff about the time I saw the
-bend. They were right there together. I was east of the
lever almost against, it and between the cars. At this time
my lantern was in my right hand between-the cars.
ROLAND R. “SCHULZ:
Direct Ezamination.
I am:a lawyer, and got my professional- education ‘at the
University of Kentucky.
The witness identified Plaintiff’s Exhibit 16 as the State
of Kentucky’s ‘liability act against railroads relative to in-
trastate commerce known as the Kentucky Employers’ Lia-
bility Act. .
Q. I will ask you to state to the jury what the law in
Kentuck was in that respect in full force and effect on No-
vember 29, 1930, in the State of Kentucky.
Mr. Cole: To which. question the defendant objects for
the reason that the evidence sought ‘to be elicited by the ques-
tion propounded to this witness could have reference solely
+ ‘
° ‘ . .
.
’ ; ‘
SS
NE ——————
ew nen
60 Ge Bill of Exceptions.
a
a
to this action to the second paragraph of the niles. “ot
which the Court has no jurisdiction, for the reason that the —
second paragraph of the complaint expressly declares upon
a cause of action ‘arising out of a law of the United. States
and is’ a suit of a civil nature arising out of such law, the
same betng the Federal Safety Appliance Act;. that by the
provisions of Section 31 of the Federal Judieial Code no
suit shall be brought in any District Court against any per- |
son by any proceeding in any other District than that where- -
of he is, an inhabitant, it being both alleged and proved in
-this case that the defendant is an inhabitant-of the State of
_ Virginia, that the mere fact that a diversity of citizenship
exists or is claimed to exist confers jurisdiction only where ©
the jurisdiction is founded only on the fact that the action:
is between citizens of different states, in which event it
75 canvbe brought in the District of the residence of either
the plaintiff or defendant; but this case does not come
within the exception contained in Section 31 for the reason
that the yuriggiction 1s founded not solely upon diversity of
citizenship but the fact that the case arises under the law of
the United States. —
The objection was overruled by the Court, to which
ruling the defendant ‘at the time excepted.
The witness then answered as follows:
‘A. This was the law: That every common carrier by
railroad while engaged in commerce in this Staté shall be
liable in damages to any person suffering injury while he is
employed by such carrier in such commeree,-or in case of the
death of such employee, to his or her personal representa-
tive for such injury or death to such employee resulting in
whole or in part from the negligence of any of the officers,
agents, or employees of such carrier, or by reason of any
defect or insufficiency, due*to its negligence in its cars, en-
gines, appliances, machinery, track, roadbed, docks, boats,
wharves or other equipment. In all actions hereafter brought
against such common carrier by railroad, or by virtue of any
of the provisions of this Act to recover damages for per-
sonal injury to any employee, or where such injuries have
resulted in his death, the fact that the employee may have
been guilty of contributory negligence shall not bar a recov-
ery, but the damages shall be diminished by the jury in pro-
portion to the amount of negligence attributable to such em- ~
ployee; provided, that no such employee who may have been —
injured or killed shall be aye to have been guilty of contrib:
%
Testimoyy” of Dr. _ Edmund Van Buskirk. —— 611.
utory negligence i in any case where the violation of such com-
mon carrier of any statute, State’or Federal, enacted for the
safety of emvloyees- contributed to the injury or death of
such employee. That in any action brought against any com-
mon carrier by railroad under or by virtue of any of the
provisions of this Act to recover damages for injuries to, or
the death of, any employee, such employee shall not be held
. ° to have assumed the risk of his employment in any case
rwhere the violation by such common ¢arrier of any statute,
State or Federal, enacted for the safety of employee, con-
tributed to the injury or death of such employee.
The defendant moved to strike out the answer for each
- of the reasons stated in the objection to the question.
This: n®tion was overruled; to which ruling the defend-
.. ant at the time excepted.
; ie)
76, DR. EDMUND VAN BUSKIRK:
%
Direct ‘Examination.
I am a physician and an ex-fay‘ specialist, and took an
-ex-ray picture of the right aym of the plaintiff, the same be-
ing PLAINTIFF’S EXHIBIT 17, which was introduced in
evidence. The amputation is about two-fifths of the distance
from the wrist:to the elbow. There is a slight absorption of
7 bone whére it is sawed off on the ulna radius which ‘i ‘is some-
what painful and permanent.
It was stipulated that Plaintiff’s Exhibit 18 isa true and
correct statement of the original point or origination point .«
of the cars thereon shown which are the ears referred to in ’
plaintiff’s Exhibit 14. PLAINTIFF’S EXHIBIT 18 was ©
admitted in evidence and is as follows: om 3
L ,
- Pg gm tien gene nnn ang,
a 3 ,
62
- Bill of Exceptions.
4
—
Original Point
>
Time and date
Car Number —— Arrived at Russell —— picked up by
and Initial Engine Date Time this train | picked up
C&O 38740 2325 11/19 6:20 PM Stevens Ky - 4:30 PM11/19
C&O , 20081-8086 © 11/25 1:30 PM Columbus O 9:30 AM 11/25
C&O 58088 3086 11/25 1:30 PM :
C&O 54069 3036 11/25 1:30 PM
C&O 65102 2314 11/27 6:00 AM Stevens Ky 12 :45 AM 11/27
C&O 56207 2314 11/27 :
VGN 11838 3014 11/25 © 7:10PM Columbus O 3:30 PM 11/25
Wab 8505-3087 11/24 10:15 AM Columbus O 6:00 AM 11/24
C&O 17916 2343 “ 11/23 1:00 AM Stevens Ky 8:45 PM 11/22
C&O ° 33145 2306, «11/26 8:05 AM Stevens Ky 3:15 AM 11/26
C&O 80958 2306 11/26 . ee
NKP 31549 3021, 11/26 8:25 AM Columbus O 4:00 AM 11/26
HV 13877 2306 11/22 3:30 PM . Stevens Ky 8:30 AM 11/22
C&O G41. 3018 11/25 7:30 AM Columbus O 2:30 AM 11/25
CCRKO 44035 2324 11/26 8:00 PM Columbus O 4:30 PM 11/25
- HV 21842
SBPX = _201 1229 11/26 11:20 AM
C&O 34679 ‘No Record .
C&O 33282 2317 11/27 8:40 AM
C&O 33555 No Record
No Record :
C&O 61355 1353 11/27 8:00 PM
Stevens Ky 5:00 AM 11/26
Stevens Ky 3:30 AM 11/27
Vauces Ohio. 12 mogfi 11/27
77. JOHN ROBBINS:
Direct Examination.
I am Car Foreman for the C: & O. Railway Company at
Russell, Kentucky. Plaintiff’s Exhibit 14 shows the cars on
Track 2 from east to west. Exhibit. 18-A shows light run-
ning repairs to car C&O 38740. Plaintiff’s Exhibit 19 is the
November 28 record of C&O car 20031, on which we made no
‘repairs but which .we sent to the new shop for repairs. Our
department was not the new shop, which was about three
quarters of a mile west of Raceland. For about. a year all
heavy repairs were done there. Plaintiff’s-Exhibit 20 is a
record of light running repairs to car C&O 58038, requiring
about two hours and a half. Plaintiff’s Exhibit 21 is the rec-
ord of repairs to car C&O 54069. Repairs were made and it
was sent to the new shop for repairs required on it. Plain-«
tiff’s Exhibit 22 is a record of light running repairs on car
C&O 65102, requiring about one and three-quarters hours.
Plaintiff’s Exhibit 23 is a.record of light running repairs
made‘ to car C&O 56207, requiring about an hour. Plaintiff’s |
Exhibit 24 is a record of light running repairs to car VGN
11838, requiring about an hour. Plaintiff’s Exhibit 25 is a
Testimony of John sake 63
record of light running repairs to-car Wab. 8505, + rr;
two hours and fifteen minutes. Plaintiff’s Exhibit 26 is
record of light running repairs to car C&O 17916, ato Hos
about an hour. Plaintiff’s Exhibit Number 27 is a record of
repairs to car C&O 33145, requiring two hours and a half.
Plaintiff’s Exhibit 28 is a record of light running repairs to
ear C&O 30958. " Plaintiff’s Exhibit 29 is a record of light
running repairs to car NKP 31549, taking about two hours
and a half. It was not then consigned to the new shop for a
paint job. Plaintiff’s Exhibit 30 is a record of light running
repairs to car HV 13877, requiring three hours. It was not
then consigned to the new shop for a pairit job. Plaintiff’s
Exhibit 31 is a record of light running repairs to car C&O
64481, taking three and one-half hours. Plaintiff’s Ex-
78 hibit 32'is a record of light running repairs to car CC&O
44035, taking an hour and a half. Plaintiff’s Exhibit 33
is a record of light running repairs to car SBPX 201, taking
about ten minutes. Plaintiff's Exhibit 34 is a record of light
running repairs to car C&O 34679, taking two and one-half
hours. Plaintiff’s Exhibit 35 is a record of repairs to car
C&O 33282. Plaintiff’s Exhibit 36 refers to car C&O 33555,
upon which no repairs were made on Track Number 2. Plain-
tiff’s Exhibit 37 is a record of car HV 21342 on which no re-
pairs were made. Plaintiff’s Exhibit 38 is a record of car
C&O 61355; on which light running repairs, taking about
thirty minutes were made. Exhibits 18-A to 38 inclusive were
then admitted in evidence, the substance and purport thereof
being as follows:
These exhibits were each on a form headed. The Chesa-
peave.and Ohio Railway Co. Foreign-Car Repair Record, on
which was entered the car number and initial or name of the
carrier, the date, the name of the inspector and certain infor-
- mation in columns headed ‘‘End,’’ ‘‘Repairs Made,’’ ‘‘ Mate-
rial, Weight, Kind,’’ and “Why Made,’’ the information so
shown on said respective exhibits with reference to each of
the cars respectively shown thereon being as follows:.
- 64
Exhibit Car
18-A 38740
19 20081
20 58038 .
e
z1 54069
22 65102
23 56207
e .
24 VGN 11838
25 Wab. 8505
26 17916
2733145
79
Exhibit Car
30958
End
IA
End
NKP 31549 A&B
13877
64481"
- CC&
SBPX 201
34679
Darr re
_ Bill of Exceptions.
Material
Repairs Made Wt. Kind
Draft Gear B
New Shop
Air-Repacked rule
66—Air cleaned ayd tested,
Defect P cup ;
Air new shop—ioose sil
Air cleaned and tested
Air—Triple changed and
_ tested
Defect triple
1—11” x 10” U Brake hanger
Air—ABCOT & St. (N. A.)
Defective per rule 60 Wab.
9-198Q—K 1 trip R & R
Std to car
Ret valve COT
_1 new 8” PC Wabco
Bet 3—23 ’
Repacked rule 66—Patch
side :
Coupler K Rem B A
Material
Repairs Made Wt. Kind
Air cleaned and tested. Ret
pipe lightened in triple air
QK Miller—3 connections
Soupler 13 2
Repacked Rule 66
25 H ARA Knuckle Pin Pin
2 K Pin cotter
Repacked Rule 66
Draft gear—K Pin B B
Draft. gear ’
1 3/4 x 17 Grab ; "
iron single off set Ww.
1—5/8 x 1/2 bolt ;
1-5/8 x 2” bolt
1—New Knuckle pin
1—K pin cotter
No bill ,
C Iron bolts © A
Coupler Y R B
K pin’ B
Air Rep rising boards AR
New shops C. F. Erhman .. .
* New shop C. F. Erhman
‘ Jack up B 2—Brass R 2
Made
“CBR
The fevegelng exhibits were together numbered Exhibit 2
in the-deposition of John Robbins theretofore introduced.
Plaintiff’s Exhibit 14 shows all repairs made at our de-
partment.
Somebody takes the numbers of-all the cars on
that track every -_ This is the record that shows the cars
a
a.
’
Sy
Testumony of John Robbins... 65
and their carriers on Track Number 2 on November 28, 1930
and. is a correct record. Car C&O 38740 was the most east-
erly car and the checker moved west to 61355 of the most
westerly car. Next east of C&O 61355 was HV 21342 and.
next easterly to it was C&O 33555. The check was made some
time in the morning of November 28, 1930, at which time the
cars were found in the respective positions indicated on the
record. The repairs, all light running repairs, were made
between 7:30 A. M. and 4:00 P. M. 61355, the most westerly
car, loaded with sand from Vauces, Ohio and going to-Sur-
-veyor, West Virginia, required some repairs taking a few
minutes. The C. & O. extends through West Virginia and
the route this car would take would be through Russell,
‘80 Kentucky. This car was inspected at Russell, taken out
of the train, placed on Track 2, received the running re-
pairs and after they were completed was ready to go on the
trip to Surveyor, West Virginia. If it were moved from our
track it would be moved to expedite its movements to Sur-:
veyor, West Virginia. Referring to car HV 21342, the card
reads: ‘‘New shop—the Raceland shop—C. F. Erhman,’’
who is the Foreman of the C. Y: O. repair track at Parsons
Yard, Columbus, Ohio. Plaintiff’s Exhibit 36, referring to’
C&O 33555 reads new shop, was going to Raceland, Kentucky
and Erhman’s name is on it.
Cross-Examination. _
I have no knowledge of where the cars go after they leave
my track. I do not know when 61355, the most. westerly car,
left the track. If the other cars were all empty and there
was one loaded car, it would be the practice to get that car
into a train and get it started as soon as possible. If it had
moved separately the next car on the list, HV 21342, would
then have been.the mqst westerly car in the cut. I do not
know whether HV 21342 and C&O 33555 ever went to the new
shops. The new shops are about a half mile west of Race-
land and Raceland reaches beyond our repair track on the
south side. That is the corporate limits of Raceland extend
east of the western part of our repair track but right to the
' south of it so that the repair tracks ‘are adjacent and abut
on the corporation line. The terminal yards at Russell ex-
tend about a half mile west of the new shops. The shops are
‘» located in the Russell yards. It extends both west of them
_ and east of them.
Sete See scala, atin olee Sie an
66. "Bill of Exceptions.
cs
The folfowing questions were asked, objections interpened,
‘ offers to prove made, rulings .made and exceptions taken:
Q. What was the practice from time to time as to cars
" which . came from other ;divisions to the Russell car shop
being. held for some considerable period of time on some of
the tracks in the yard before being sent to the car shop?
‘Mr. Davidson: To which question the plaintiff objects
. for the reason that we haven’t gone into this
21 with any of the witnesses. - :
The Court: Objection sustained.
~ Q. What was the practice at Russell with reference to cars
which came there to be repaired at the shops from other di-
visions, as to whether these cars were frequently held on
different repair tracks for a considerable period of time be-
fore’ finally reaching the shops?
Mr. Davidson: To which question the plaintiff objects;
we haven’t gone into any practice— .
Mr. Cole: The defendant offérs to prove by this witness
in answer to this question, that it was the common practice |
in the operation of the yards and shops at Russell, Kentucky.
that cars coming to the Russell Shops from other divisions.
were frequently held for considerable periods on different
repair tracks, including repair tracks under the control of
the witness, without being sent to the shops.
Court: Objection sustained, and offer to prove over- .
ruled. : 3
Mr. Cole: To which ruling of the court the defendant, at
the time, excepted. |
What isthe fact as to whether cars which came from
Parson’s Yard, under the. direction of Mr. Ehrman, with the
eards tacked on in the same form as Plaintiff’s Exhibit iat i
_being form B: F. 4, after arrival at the Russell Yards were
from time to time sent out on the road to be loaded .without
ever going to the Russell Shops?
Mr. Davidson: To which question the plaintiff objects on
. the ground that we haven’t gone into that practice; we
82 haven’t touched that at all. .
Mr. Cole: The defendant offers to prove by this wit-
ness in answer to the foregoing question, that it commonly
happened that cars of a kind described in the question were
sent out on the road without being sent to the shops first.
The Court: Objection sustained, and offer to prove over-
ruled.
Testimony of Dr. L. W. Elston. we 67
Mr. Cole: To which ruling of the Court the defendant, at
the time, excepted. me a i
Redirect Examination.
The running repairs referred to were made on November
28, 1930. 7 ° ,
83 RONALD STAGG:
Direct Examination.
——
I am actuary for the Lincoln National Life Company, and
the expectaneyof life for a man forty-one years of age is
_approximately twenty-eight years. :
DR. L. W. ELSTON:
Direct Examination.
I first examined the "plaintiff on December 23, 1930, and
found an amputation stump of the right lower third of the
forearm, which was not entirely healed. He stated that he
had a great deal of pain, which I believed to be true. It
was infected, painful, swollen, tender, and I thought it would
take a considerable length of time for it to get healed up if
it ever healed permanently. He had a few small areas, about
as big as a pea, and I assume that they were nerve tumors
which some sometimes dévelop on the ends of nerves after
an amputation, and which are notoriously painful. I couldn’t.
prove it pgssibly, but judge that is what they are. My opin-
ion is that this man does have infection. This was the con-
dition when I last saw him a few days ago. Two large
nerves ‘run down the sides of the arm and end in a spot right
about there (pointing to plaintiff’s arm) and when the spot
on the inside is exceedingly tender if you press in there’ you
can feel a small hard area; in my opinion these tumors are
present there. This, as you see here, is an infection, and
pus and inflammation are undoubtedly in there now. These
tumors have a tendency to become progressively worse as far
as pain is concerned, and in my opinion the condition is per-
manent and. painful as long as the tumors are there. I would
not say a one armed man could go back afid do the work of a
au
ty
68 Bill of Exceptions. iin
railroad brakeman. It is pretty hard to say as to the
prospects of improvement. It has dragged on now for months
and is still infected and in my opinion very painful. I
84 don’t know, of course, how’it is going to come out. There
is a permanent loss of the arm. The nerve tumor condi-
tion will, according to.the natural -course of events, not as
a rule get any better; infection can be overcome by nature
and a patient get well, or it can go on and become worsé. .
If the pain and distress is due to neuromas (nerve tumors)
I don’t think that it is going to get better naturally. I do
not think he would 'be able to attach an artificial limb to the
stump as I couldn’t touch his arm without causing consider-
_ able pain, and I don’t think a cap could be worn over it with
any comfort.
Cross-Examination.
I have dressed his incision a few times when he came up,
several times, the last one being three or four days ago. I
recall no conversation about my being a witness on the oc-
easion of his last visit, although it was mentioned once be-
fore that I would probably be used as a witness. I get called
occasionally im personal injury cases.
Redirect Examination.
I am a surgeon. -
Recross Examination.
I don’t see how he could very well drive an automobile,
‘I don’t-know whether it would be possible. I don’t think I
would want to chance this man. He might drive an auto-
mobile with one arm. I would have to see it before I would
believe it possible for him to drive from Columbus, Ohio, —
to Fort Wayne, Indiana, a distance of. 300 miles or so.
J AMES B MOORE, recalled:
Cross-Examination. |
I drive an automobile but not so very regular and not sev-
eral times a week. Since the accident occurred I have driven
two or three times to Raceland’and Russell. -My home is »
he dn ee RE
NM tennntten
“TT. C. IRWIN:
Testimony of .T. C. Irwin. | ". 69
in Fort Wayne and has been since January 13. I came here
on January 11, 1931, to make my home.
Fedirect Examination.
I have driven a car several years; this -was a 1927
model. x,
85 Thereupon the plaintiff rested his case and the de- .
defendant to maintain tlie issues upon its behalf offered
and introduced the testimony of the witnesses and the docu-
mentary evidence hereinafter mentioned, which testimony
including that on direct, cross and redirect examination to-
gether with such documentary evidence, all in condensed and_
narrative form is as follows:
DEFENDANT'S EVIDENCE.
Direct Examination.
I have been chief record clerk. of ‘The Chesapeake and
Ohio Railway Company for about ten years, and it is my
duty to .see that the movements of-cars over the system are
entered in the records and I keep a record of such move-
ments, which. I obtain from the conductors’ reports which
are sent to the office of which I am in charge and there pre-
served. They are kept in the regular course of thé business
of the company and are correct. I have a record of the move-
ment oficar C. & O. 61355 for the period beginning approxi-
mately November 28, 1930. (The witness produced Defend-
ant’s Exhibit. 6, compromising conductor’s train reports” or
wheel reports.) These records show the leaving and arrival
time of the trains, the stations being designated by symbols
or numbers designating their distance from Fort Monroe. —
They show the numbers and initials of the cars of the train
and whether they are empty or loaded. Car C. & O. 61355
started out of Columbus in a train going to Russell. at 8:50
o’élock a. m. on November 26,'1930. It was then empty. It
was set out at station CN 40, this being at RA junction on
the northern division of the C. &O. railroad on the line be-
tween Columbus and Russell. It left there on the 27th in a
74
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