Mr. Mackey: He makes him his witness for that purpose; it is not responsive to the examination in chief. Court

in chief.

renewed.

Q. The ties had been renewed previous to this accident? Answer – Yes, sir.

Q. How about the ballasting of the track between Bristow and the point of the wreck? Answer – I think it was ballasted, but I don’t know anything about the condition of the ballast.

Q. Will you say whether or not, from your knowledge, that track as in good condition or bad condition at the time of the wreck, between Bristow and the point of the wreck? Answer – It was in much better condition than I have seen it at other times.

Q. Was there anything wrong with that track between Bristow and the point of the wreck, so far as you know and so far as you observed? Answer – No, sir.

Q. And you have lived there for a great many years, and had an opportunity to observe the condition of the track? Answer – Yes, sir.

Q. Do you know whether or not it was raining on the night of the accident? Answer – No, sir, I do not. There was severe weather of some sort, but I don’t remember whether it was rain or snow, or what it was.

Q. Mr. Davis, you said that the child seemed to be all right sitting there with its father and mother; will you state whether or not you noticed anything about the child as indicating whether or not it had been hurt in this accident? Answer – No, sir, I didn’t notice anything.

Q. Was there anything indicating that the child was not only not hurt ----

Mr. Mackey: The child is not suing the railroad.

Court: I think Mr. Keith asked him that, and he said he didn’t notice anything wrong about it. Is that what you said?

Answer – I didn’t observe that it was hurt. Mrs. Halterman told me before we got there that her daughter, who had been to the hospital, was coming on that train, and she was very much alarmed, and after getting there and seeing the man and the lady and all sitting there I congratulated them on not being hurt, and I didn’t know that they were hurt, but, of course, I am no doctor, and I couldn’t tell anything. I was very glad to see that they escaped death, as it was a pretty narrow call for them.

RE-DIRECT EXAMINATION

By Mr. Mackey:

Q. In order that my question may not be leading, I will ask you whether Mr. Sullivan’s face looked happy or unhappy when you gazed on him in that car? Answer – I don’t think he looked overly pleased. As well as I remember he was crying.

Q. Would not conclude, because the baby was not hurt, that no one else was hurt, would you? Answer – I was very much gratified to find that they were not killed. I went there after Mrs. Halterman told me about them being on the train, and meeting them still alive and apparently unhurt I was very much pleased to see that they escaped. Of course there might have been injuries that I could not tell.

Q. You had no reason or no interest in that wreck, or anybody on that train, to make an investigation and determine whether any timbers had gone throw the window, or whether the train door was jammed down, etc,. you had no reason to investigate those matters? Answer – I didn’t notice anything of that kind. I was through the car quite frequently.

Q. You went there as a good Samaritan to help anybody you could? Answer – Yes, sir.

Q. You did not notice a front door jam about three feet long back in the car? Answer – No sir. I don’t say it was not there, but I didn’t see it. I don’t think the passenger car left the rails; at least all the trucks. I noticed this thing scouring on the rails from my home, because there was a wreck there a short time before, and it scattered cars along, and there were houses there, and I thought it was a pretty close call for those houses, and I watched this, and I watched to see if it would clear the station, and then I wished to see if it would clear the pump house, which it did not. I think this obstruction on the rail struck the switch going into the pump station about three and a half or four feet south of the frog.

Q. Which caused the wreck? Answer – Yes, sir; it seemed to become kinked where it led into the pump house, and my theory is when it come in contact with that it shoved the rail over and caused the rest of the cars to leave the northbound track and go to the other. One of these cars seemed to rear up – I was watching it – and fall over directly in front of the train 17, and they instantly cut off the light as quick as you could bat your eye. I think that was a carload of pig iron. I am not sure about it, but noticed after the wreck there was pig iron on both sides of the track.

Q. You are certain Mr. Sullivan did not cause this wreck?

RE-CROSS EXAMINATION

Q. Mr. Davis, you said that obstruction that you saw, as it passed you, was that hanging on the rail or over the rail? Answer – I think it was on the rail.

Q. You saw fire flying? Answer – Yes, sir, a great sheet of fire.

Q. That is what called your attention to it? Answer – Yes, sir.

Q. These previous wrecks you speak of, were they derailments? Answer – Yes, sir.

Q. Were they at the same point that this wreck was? Answer – One slightly beyond where this occurred, and the other almost at the station.

Q. The one almost at the station was it north of the station? Answer – Yes, sir.

Q. And the other slightly beyond; what do you mean by “slightly beyond” – slightly to the south? Answer – Which one do you refer to?

Q. You said one was near the station and the other slightly beyond? Answer – It would be about four hundred yards north of the point.

Q. The other would be about four hundred yards north of the point where this last occurred? Answer – No, it was four hundred yards north of where the wreck occurred at the station.

Q. How near to where the last wreck occurred?

Railway.

would have to go back and try the cause of that wreck.

have been more.

same trouble.

his previous testimony and consider it ruled out.

Q. what I want to know is how near this other one was, that you have not located definitely, to the wreck of February 23^rd? Answer – I suppose it would be as much as one hundred yards beyond.

Q. Do you mean north or south? Answer – Beyond where the last wreck occurred.

Court: One of the jurors seems to know; he says it was six years this fall.

Witness: This was the first frog, almost immediately at the station. I think that was a year or

possibly a year and a half.

(Exception by counsel for Southern Railway Company.)

Mr. Mackey: That exception goes to their question and not to ours. We think it all ought to go

out.

the scene of the wreck? Answer – Nothing I knew of at that time. Q. Did you examine the track southwardly from Bristow at that time? Answer – No, sir, only in a general way.

south of the station, wasn’t it, Mr. Davis?

excuse the jury for a short while.

(JURY RETIRE)

any question as to the condition of the track, is one that is bound to come up in evidence that will go on from now on, probably. We think it is important to direct the court’s attention to what we think is the proper rule of evidence in respect to it, and out contention is this: The declaration is very general in its terms. It states practically a case where the accident occurred by reason of a collision, and nothing further; it simply states a bare case of res ipsa loquitur . Now, the question is, under a case of that sort, where there is not any specific allegation that the roadbed of the defendant was in improper condition, the question is to what extent must we show the good condition of the track? In other words, must we put on witnesses to show the good condition of that track from the point of wreck to Charlottesville, or from the point of wreck to Orange? Our contention is this, that where there is a bare allegation bringing the case merely on the ground of res ipsa loquitur, that the circumstances of the wreck show that there is negligence. Then, we must show our train was properly equipped and properly run, and did not negligently run into the other train. We must show our track was in good condition at the place of the wreck. If we show that, I think we have answered the requirements of the law. The question is how far we must show the good condition of our track. We called on the plaintiff for a bill of particulars, and here is what he saysreads bill of particulars). There is no charge in the declaration that our roadbed was in bad condition, generally. There is the case that we are called upon to meet there, the case of the plaintiff, and here is a decision I want to read your Honor upon it. (Reads decision and proceeds with argument)

Southern Railway.

the lessee, but applying the doctrine of res ipsa loquitur it does not apply to the C&O.

C&O by reason of the breakage of some portion of this truck. If they make out a case of the breakage of that truck, we think we are entitled to show the primary cause of that breakage, and if the primary cause of that breakage was the condition of a piece of track not within our control, it relieves us, and that is the purpose of this evidence.

by Mr. Sullivan against these two roads, and they have set out in their declaration that this track was defective at the place of accident. If I hold you can go beyond, and that either side can show the condition of the track beyond, and I commit error, who would be the sufferer? Would it be Mr. Sullivan? The court would say, “You ought to confine evidence to the declaration of the plaintiff”. Would the plaintiff be the innocent sufferer? On the other hand, Mr. Browning very properly said that you gentlemen have stated in your opening (referring to counsel for Southern Railway Company) that your allegation would be that it was a proper track.

Where this accident occurred? If you were to undertake to inquire into the track all the way- they are attacking the track only at the place of accident – would you have to start at Orange and follow it down? If a judgment was obtained against the C&O, would not the C&O remedy be to afterwards bring suit against the Southern by way of recoupment, and say that these people only confined their investigation to the place of accident? The fact that the railroad was in good condition at the place of accident we have nothing to do with what happened out near Charlottesville. I do not want to commit myself; would not that be a question which you railroads would have to adjust afterwards? I am asking for information, and I want your response as to that. If I make an error in permitting these gentlemen to go and inquire into the condition of the track all the way from Orange Court House down to the place, they would be innocent sufferers. Would not the court say. “You gentlemen must respond to the allegations of the declaration, to wit: That the track was in bad condition where the accident occurred? I say it is a very peculiar case. It strikes me that the fair inquiry here is what is set out in that declaration. That is the issue, to-wit: That it was an accident caused by the negligence of the C&O Railway by breakage of a certain bar – I believe that they call it an arch-bar, and on the Southern Railway for two reasons, first, that they were responsible for what you gentlemen did, that they permitted you to run over that track, and because they had a bad track. Now, is that the issue? If it is, how could I lengthen it in this suit by attempting to adjust the conditions between the two railroads? I wish you had settled it before you came in here. Now, you are bumping your heads against each other. If this man has a claim against either one of you, I want to help him out --------

the Court of Appeals found error in this record.

accident occurred.

confines it to that neighborhood.

judgment?

and rough choppy track before you get to Bristow somewhere caused this arch-bar to become loose. It would be a great burden on the defense if that were true to our side. Now as an incident to this case, the defendant, Southern Railway Company, has come in here in open court and called upon the Chesapeake and Ohio Railway to answer and defend this suit against them under the decision of Supreme Court of the United States.

then against which company? I do not understand just exactly where I am. It looks to me that the issue is the condition of the track where the accident occurred, but if I let you gentlemen settle it between you, would I sacrifice the other?

had to go over thirty, forty or fifty miles to find the choppy track. It is purely speculative. We could not come down to the proximate cause of this accident. The immediate and proximate cause of this accident was an arch-bar catching in a rail or something, and derailing the train. There was a causal connection between the choppy track, but the law rules out causal connection in this case. There was a causal connection with the iron mines which made the rails, but the law would not permit it.

the rights of both of the defendants. Upon that I do not think the plaintiff can be prejudiced. In the first place, if he gets a judgment against both defendants, he would have to get it as joint tort feasors. It would not mean, necessarily, upon both; of, if this court should change the judgment, that that judgment would not be effective against the other joint tort feasor.

prejudicial; suppose that evidence is introduced by the defendant over the objection of the plaintiff, then the defendant cannot complain of it. I think that is the answer to that. Suppose we introduce this particular evidence; suppose this plaintiff objects to that evidence, we cannot go to the Court of Appeals or anywhere else, and say because that evidence is prejudicial it must be upset, and if they get a judgment certainly they will not complain of it if they object to its introduction.

against the Southern, the Court certainly is not going to turn around and switch that judgment on your company, because if I make an error the result would be it would come back here for trial.

you alone, wouldn’t it have to come back here for trial?

place.

evidence is legitimate evidence. We submit on the pleadings in this case that it is. Mr. Mackey has arisen and undertook to argue as an expert what was the cause of the accident is the subject of inquiry. They have impleaded us both. Mr. Mackey says you can go back one hundred yards. He did not state any definite place, but you cannot go away from the scene of the accident to find its cause. We say that it is a matter of common, practical knowledge that derailments ordinarily do not occur right at the very point where the car jumps the track; that certainly a reasonable distance from there it may be looked for. If there is an obstacle right there on the track, and the train hits that obstacle, and don’t break something, and runs one hundred yards and then jumps the track, or half a mile, or three-quarters of a mile, but in the nature of trains a reasonable distance from it is the place within the scope of the place of accident.