# Transcript of Record — Moore v. Chesapeake & Ohio R. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0002%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1934 - **Citation:** 291 U.S. 205 ## Text 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 - 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 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 4 = ° an 70 _ - Bul of Exceptions. - train going south of Columbus and went to Gregg, Ohio, loaded with sand. I do not know where it was loaded. ° It _ stopped at Gress and went into a Russell train on November «27, 1930, and arrived’ at Russell at 7:30 a’clock p. m., No- vember 27, 1930. It left Russell at 6:45 o’clock-p. m. on No- vember 28, 1930, and went to Barboursville, the destination of the train being Hanley, West Virginia, about. 65 miles east of Barboursville. The train in which it was taken from ‘Russell to Barboursville arrived at Hanley at °12:35 a. m. on the 29th. The record does not show the hour 86 at which the ears arrived at intermittent points, but does show the time of the arrival of the train at its desti- nation. Thisecar left Barboursville in a train which left Huntington at 6:35 a. m. on November 29, and arrived with this car at Hanley at 4:55 p. m. on November 29. It went from Hanley to Quinnamont, West Virginia, leaving Hanley at 8:00 a. m. on December 3, and being set out at Quinna- mont from a train which arrived at Hinton at 12:12 p. m. December 3. This car left Quinnamont at 1:00 p. m. on De- cember 3, and arrived at Rowley at 2:30 p. m. on Décember - 3, Rowley being the final destination of the train. It left Rowley at ‘4:05 p. m. on December 3 and arrived at Mab- scott in a train which arrived at its destination at 6:25 p. m. on December 3. It arrived at Surveyor at 1:00 p. m. on De- cember 4. 7 I also have the record showing the movement, of cars C. & O. 33555 and HV 21342. They were in train 2321 leaving Columbus at 5:55 a. m. on November 27 and arriving at Rus- - sell, Kentucky, at 12:15 p. m. November 27. These two cars left Russell at 3:10 p. m. on November 29 in train X1456, and were taken to Logan, West Virginia, arrived there at 10.20 p. m. on November 29. Defendant’s Exhibit 7, the wheel or car reports showing the movement of the two cars C. & O. 33555. and HV 21342 from 5:55 a. m. November 27, 1930, until their arrival at Logan, West Virginia. ; Cross-Examination. Car C. & O. 61355 left Russell at 6:45 p. m. on November 28. I do not know this of my own personal knowledge. I suppose errors are made in our records. This car, when it left Ohio, was consigned to Surveyor, West Virginia, ac- cording to the sfieets. C. & O. 33555 and HV 21342 left Columbus November 27. They were not consigned to or bound _ ee a Testimony of Emery Berkhardt. aon rad to Logan, West Virginia: They moved out of Russell into Logan. I do not know why they were stopped at Russell .or that they needed repairs. ‘Redirect Examination. 87. While there is a possibility of human error, I do not | ~ think it would be possible for a mistake to have occurred as to the time when car C. & O. 61355 left Russell and all of | : the rest of thé record during the rest of the trip of that car to its destination be correct. I do not think this could have - occurred in this particular car. I have a complete record of that car. - bp, a8 ‘Recross Examination. - | I haven 't the shop track numbers showing the time the car left shop track No. 2 at Russell, Kentucky. EMERY BERKHARDT: SRG AP | Direct Exainination. ' I am employed as yard switchman b¥ The Chesapeake and Ohio Railway Company, and was a member of the crew that was doing switching when James B. Moore met with an in- jury. The crew consisted of W. F. Conley, myself and J. B. ° Moore. Workman was the éngineer, and Nester the fire- man. We began at 11:00 o’clock at night. and cabbed. trains—put cabooses on them, threw out bad orders, and long towards morning pulled off No. 2 shop track the cars that were on it. The engine was headed east, and went into the west end of the track. Conley and I opened the knuckles; they shoved them together and pulled them out west on the ‘ new lead with the engine backing. We went forth or fifty car lengths, I gave a kick sigrial and cut off a Roger ballast car. I made the uncoupling while the engine was moving and rode the car up to No. 20 switch. When it went in tke clear, I threw that switch and got off. The other cars were © back six or eight or ten cars. The next car was to go to No. 13. These switches went off the lead to the right, go- ing east or to the south. I gaye a signal for this move, which Moore transferred, and the cars started. I heard the 72 Bill of Exceptions. ears by a signal and went back to him. /The foreman was east of me. I got to Moore and shut dow on his arm to stop . the. blggd. The cars were shoved down the lead, the en- 88 gine uncoupled, and Moore placed on the engine and taken to the west end of thegyards. From there he was taken in an ambulance to Russell and stopped ‘at A. J. Francis’ for first aid, and from there to the Huntington hospital. = occurred about 6:00 o’clock; it was dark and the weather air. . rumbling of the cars and heard Moore % I stopped the Cross-Examination. a A set back is a car that has to be set back on a track where it is taken for further repairs. Frequently we take them out out but would leave the set back there and move out withAhe others. We were switching these cars from west to east. With the push-down type of lever you take hold of the han- dle of the lever and push it down. I never operated a push- down type of lever that went so low to a point less than a foot from the top of the rail. It would seem like that would be too low. Ordinary levers go over the top of the wheel - but not betweén the cars past-the wheel. The car I uncoupled was put on Track 20 and was going to Raceland. Other cars ‘ in that string were also going to the Raceland shops. We ' were switching out the bad orders. Quite a lot of repair work was done at the shop at Raceland. We had some cars ° for Raceland in there, and put them on Track 20. . After | that théy would be taken to the new shop. The first car I cut off was a car going to Raceland on No. 20 Track. I-sig- naled to Moore to cut off the next ear and he transferred it. He was to make the next uncoupling of one car. This car wasn’t. uncoupled. The car he was to cut off was not.cut off. It was still coupled to the train. I saw his right hand was mangled, and got to him right immediately after I-heard . him holler. I was five or six car lengths.from him, I guess I got to him in about half a minute and asked what hap- pened. Fle said it was a. low-lift lever, he went to make the cut and lost his balance. He said low-lift lever, I don’t know what he meant. I have cut several of them but don’t know as I saw any of them lower than commonly. I cut those cars with my feet. I understood him to mean that this,lever went too clos¢ to the rail. Testimony of W. H. Workman. | 73 Redirect Examination. . To operate the push-down type’ of lever, I get on the 89 car and get hold and shove it down with my foot. I fig- ure that is a much safer method. | W. H. WORKMAN: ‘Direct Examination. I am an engineer employed by The Chesapeake and Ohio Railway Company, and went to work at 11:00 p. m. on No- vember 28, 1930, with Nester fireman, Conley conductor, _and Berkhardt and Moore switchmen.- We were switching in the west end of the yards at Russell, Kentucky. Be- tween 5:00 and 6:00 in the morning, we started -to pull the . No. 2 shop track. There were around 20 cars which were standing apart with four or five feet of space between each two cars. We went in from the yest and with the engine headed east coupled -on to the cars, shoved them together, stopped the engine and ‘the slack pulled on out. We then pulled the cars out on the lead and shoved them ahead. The shop lead connéet No. 2 track with the yard lead. We then shoved the cars up the yard lead in an easterly direction. -He then gave me a kick signal indicating to kick the cars -or move them fast. I did this, and then received a stop sig- nal. I then stopped for about a minute and received another - kick signal from a man up at the other end of the cars, upon . which I acted. I could not see where they were going, but depended solely on the signals from the members of the crew. -I received another stop signal and stopped in the length of about two cars. We had been moving eight or ten miles an hour. I then received a signal to go ahead slow and shoved the cars slow. When I passed Berkhardt I saw: he had hold of Moore’s hand. The conductor gave me a signal to come on and shove the ‘cars in the clear. FI then backed the engine to where Moore was standing. We bound his wrist. He was \. put on the front end of the engine and backed up to where _ we could get an ambulance. I did not see him any more, and we did no more switching that morning, our-regular quitting» time being at 7:00 a. m. ° ne 74 en Bill of Exceptions. w. F. CONLEY: Direct Examination.. 90 . IT am employed as yard conductor by the C. & O. rail- road, and on the night.of November 28 and morning of November 29, 1930, we were working in what is known.as the west end light side in the west end of the Russell yards. Something after 5:00 o’clock "Wé started to pull the No. 2 shop track. I opened the. knuckles; Berkhiardt was opening knuckles on another train, and Moore: was near the engine. We gave the engineer a signal to come ahead, which he did, and the cars coupled. He had come in from the west end and backed out to the west pulling the cars about thirty car lengths to get on the yard'lead. I stayed to line up the tracks by throwing the switches. The first car, one for the Russell shop, went to‘Track 20. The next was to go to No. 13.» We were not making up trains but just yard switching—classify- ing cars. We did not know where the cars would go. They came up: the lead with the cars, and Berkhardt cut off the first car which was to go on 20. I throwed 20. over for the . lead; the next car was going to 13. After the first car. had ‘gone on to 20, I threw the switch back so that the cars on the lead would go past No. 20. A go-ahead signal was given by Berkhardt. Moore was to cut the next car off, and: didn’t cut it. My attention was. attracted when Berkhardt hollered and told me Moore was hurt. I cut the engine from the cars, got the stretchers, and camie back to where he was and he _was.put dn the engine. ‘The accident occurred about ten cars “west of No. 20 switch. The blue print, Defendaft’s Exhibit -8, correctly represents the lawout of the Russell yards. The first track is the main line, of which there are two. Just south of it is No. 1 shop track, and next to,it No. 2, which come together at their western ends ‘in what is called the - shop lead, to which these cars were taken from No. 2 shop track. The yard lead is the 9th tracks from the north, 13,. 18 and 20 being numbered consecutively from the north and located south of the yard lead. ‘11 takes off the yard lead furtherest east, 11 to 20 coming off this lead and the other tracks south of that’ from another lead. (DEFEND- 91 ANT’S EXHIBIT 8 was admitted in evidence.) I stayed. until the ambtilance came, and then came back up in the yard on to the lead opposite the yard office and 2 Testumony of W. F. Conley. 2 1 stopped. We then went east and it was 7:00 o’clock, time to be released. Nippert, car inspector, and I examined the cars Moore was_attempting to uncouple at the time. of his in- jury, the two eastermost cars after the car had been cut off. by Berkhardt. They were coupled together on the east end of the cut and connected with the rest of the cars. - On*54069 - was a two-piece lever you push down on. There is another - type where you pull up. As to whether there was slack be- tween the two cars, I didn’t examine them or touch them. I saw nothing defective. I never saw the levér after that time. The safe way of operating this kind of a lever, the way I - use it, is to stand on the stirrup and push dpwn with the other foot, holding on to the side of the car. The speed at the time of the accident was six-or eight miles an hour, and the various signals were correctly interpreted by the engineer. These cars were empty. : . Cross. Examination. ‘ Plaintiff’s Exhibit 14 was the correct list of cars on Track 2, checking them from east to west, when. I pulled them out.: . There were 21 cars on the track. I couldn’t say whether I got the most easterly car, 38740, which was a set back. It was not going to the new shop. The next ear C. & O. 20231 was going to the new shop, and the next car 58038 was on o.k. car. Berkhardt cut the first car off on to the new shop, arid Moore was to cut the next car, C. & O. 58038, off to go on No. 13. Moore was handling the lever on the east end of 04069, the fourth car from the top of the list on Plaintift’s Exhibit 14. Moore was on the south, I on the north side of the train. The lever on 54069 was a push-down type lever on the south side of the train. I operate these with my feet, and while moving stand on the car with one foot and press down the other, which is safer than running along the ground and pushing down with the hand. A lever that went about ' a foct from the top-of the rail I would eall 92. a low lift lever. I saw Plaintiff’s Exhibit 39 before. * The signature exhibited to meis mine. I recall the at-. torney (Mr. Davidson) coming with Moore to my home to investigate the accident, although I don’t recall his name. It is in the statement that ‘‘I observed that the lever on the third car that Moore was working with was too low.”’ ‘You’ve got it down and I guess that’s what I told you, and it as true. I don’t remember saying that I observed this . , - _—— 76 =O Bill of Exceptions. lever was low. Outside of that, everything else in the state- ment is correct as far as I know. I would not say that I didn’t say it and ‘don’t remember whether | said it that night. I do not know that the lever was too low. (Witness | was shown picture) When I went back to look at it, it didn’t ‘look that low and was not any lower than other cars. PLAINTIFF’S EXHIBIT. 39 as admittedcand read in evt- dence and is‘as follows: Statement. Accident to Jim Moore . Occupation Switchman At Russell—Ky Date Nov. 29 1930 Hour about 6 A. M. Statement of W. F. Conley ‘Made to Edward Davidson On the 5th . Day of January 1931. In the presence of. J. Moore My Name is W. F. Conley, Age 54 Years I reside at Kenova—West Virginia I am a Conductor—C. & O. Ry. by ‘occupation. Am unmarried or married Married At time of casuality.I was (state location and how engaged) Lining up switches. I was conductor of the crew. My crew was switching out a cut of 21 cars from the shop track No. 2._ Burkhardt cut off the first car onto track 20 for that car to go to New Shops at Raceland—Ky. Moore was to cut off the setond car, a Hopper car, onto track 13, and he had to use the lever of the third car in order to uncouple the 93. second car. I next heard Moore hollering and turned around and saw Burkhardt give a stop signal to stop . the cut. The train stopped and I went down to where Moore was standing on the south side of train—being held by Burkhart. Moore was then about three car lengths from the easterly end of the cut. The engine and cars were then shoyed into the clear and Moore taken by the engine to shop track steps. The car that Moore got hurt with had a red tag on the car, to go to the New Shops at Raceland. We were switching out this cut. of cars to place the cars on the tracks they were to go to and also for the purpose of placing more ears from track 18 onto the Shop track, which we would _ have done upon completion of the switching out of this suit. I observed that the lever of the third car that Moore was working with was too low. I mean the lever of the third car on the east end of it. It was dark at the time. I have read ae Testimony of C. R. Callahan. | 7 this statement and itgis true to the best of my knowledge, and is exactly as I told it, ~ > ) W. F, Coney The court adjourned to April 29, 1931. 94 C. R. CALLAHAN: | Direct Examination. I am assistant to the terminal train master of The Chesa- peake and Ohio Railway Company at Russell, Kentucky. The railway company has a large assembly yard known as classification and terminal yards and shops at Russell. Kmpty coal cars are carried into Russell: for breaking up and assembly. They have no destination other than Russell. These trains, after inspection, are broken up to switch out’ —_ any cars that might be shopped by the inspector. Cars in | condition for road service are classified in various yard tracks set aside for that purpose and lined up in cuts pre- - paratory to leaving. At the time they are classified on these various yard tracks it is not known where they will be sent to. There are coal mines on the line of the C. & O. in Ken- tucky on what is known as the Big Sandy Subdivision. It is wholly within the State of Kentucky. Other coal fields are . located an the lines of the-C. & O. in West Virginia. Empty ’ coal cars coming into Russell. are also used for various other loading, quite a few for the loading of ties at the American Creosote Plant at Russell. The American Rolling Mill Cor- poration at Ashland, Kentucky uses coal cars for loading steel products and the Sennet Solvay Company at Ashland, Kentucky is a cake plant. The chief yard master assembles the cars into trains and the chief car distributor decides where the trains will’go. Until ‘such time as these trains leave Russell no one has any information as to whether they will go in- or out of the State of Kentucky. When cars being switched off the light repair tracks and classified as good order. cars, set backs and ears for shops, it is not known whether the good order cars will go into trains which will _ 80 to West Virginia or Kentucky, or whether they will go - to Ashland. to be loaded with steel products or coke. 95 Both.the shops and the light repair tracks are inside the general limits of the yard. an 78 — Bill of Exceptions. ‘IT learned of Moore’s accident about 7:30 A. M. on-the morn- ing it occurred. I saw the car involved in the accident bé- tween 12:45 and 1:30 P. M: Plaintiff’s exhibit. 15 looks like - the car. I took pictures of it’around 12:45 or .1:00 o’clock . that day, being those marked defendant’s exhibits 9 and 10. Preliminary Questions by Plaintiff. Se a Ne Plaintiff’s exhibit 15 was made about thirty minutes after ‘ IT took my pictures. - I understand our company had it taken. The man who took it arrived while I was finishing.. His name was Jimenez. The pictures I took were of the east end of the ear. (DEFENDANT’S EXHIBITS 9 and 10 were then admitted). Direct Examination Continued. The pictures I took were of car 54069. When we went to get it there were ‘two cars on the west end of the east bound repair track. We had the switch crew take the cars down six or seven hundred feet in order to photograph them. We backed up the westward car, 54069, and pulled it west on the lead in order to take the picture and returned it to the repair track before the other picture was taken. Conductor J. G. Ricks in charge of the west crew was on short time when | told this gentleman we could not hold these cars on the lead an longer. (Defendant’s exhibits 11 and 12 ae also pictures of the same car.) The lever which operates the coupler on this car is known as the push-down lever, When you push down on the handle it raises the pin and block lift which locks the coupler together. The lock block is down in de- fendant’s exhibit 12 and up in defendant’s exhibit 11. These two pictures were taken while the car was in the same posi- tion as in plaintiff’s exhibit 15. (DEFENDANT’S EX- 96 HIBITS 11 and 12-were admitted in evidence). When the lever is pushed down the lock block in the coupler and much larger than the hole comes against the top of the coupler so that it is impossible to lower the end of the coupler further. The up and down movement of the lock block in- side the coupler is about four inches. In defendant’s ex-. hibit 9 the lock block is up and the handle of the lever down. In defendant’s exhibit 10 the loek block is down and the han- dle of the lever in the up position. I can explain why the lever appears nearer the rail in plaintiff’s exhibit 15 than Testimony of C. R. Callahan. 79 in other pictures. As the elevation of camera is raised, an ° object between the camera and some other object appears lower with reference to the other object. . When I took the pictures I pushed down the lever and it raised the lock block. The downward movement was arrested and was nor- mal. I pushed it down four inches and it came to a stop, so that I couldn’t push it any further. I tried it twice. In ~-~doing this it was not necessary to go between the cars, no part of my body other than my hand or wrist being between them. - The lift lever in its down position was about twenty inches above the top of the rail although I did not measure it. The photographer who came while I was taken my pic-" tures had a camera and a tripod. = 4 Cross-Examination. We had one light repair yard and one heavy repair yard, the light repair yard being on the west end of the east bound yard and we have one [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0002%3A1. Public record. Not legal advice.