Mr. Caton: May it please your Honor, we desire to offer in evidence, the rules, page 40, under the
heading, “Form H. Work Extra”
Mr. Moore: How is that relevant. These were not work trains.
Mr. Caton: We propose to produce the orders to show that train 832 was a work train, and it will
be offered in connection with these rules.
FORM H. WORK EXTRA.
(1)Work extra _______ will work _____ until _______ between _____ and ______.
(2) Work extra 292 will work seven (7) a.m. until six (6) p.m. between Berne and Turin.
The working limits should be as short as practicable, to be changed as the progress of the work may require. The above may be combined thus: (a) Work Extra 292 will run Berne to Turin and work seven (7) a.m. until six (6) p.m. between Turin and Rome.
When an order has been given to work between designated points, no other extra shall be authorized to run over that part of the track without provision for passing the work extra.
When it is anticipated that a work extra may be where it can not be reached for orders, it may be directed to report for orders at a given time and place, or an order may be given that it shall clear the track for (or protect itself after a certain hour against) a designated extra by adding to (1) the following words:
(b) And will keep clear of (or protect against) Extra 223 south between Antwerp and Brussels after two-ten (2.10) p. m.
In this case extra 223 must not pass the northern most station before two-ten (2.10) p. m., at which time the work extra must be out of the way, or protected (as the order may require) between those points.
When the movement of an extra over the working limits can not be anticipated by these or other orders to the work extra, an order must be given to such extra to protect itself against the work extra in the following form:
(c) Extra 76 will protect against work extra 95 between Lyons and Paris. This may be added to the order to run extra.
A work extra when met or overtaken by an extra must allow it to pass. When it is desirable that a work extra shall at all times protect itself while on working limits, it may be done by adding to (1) the following words. (d) Protecting itself.
A train receiving this order must, whether standing or moving protect itself within the working limits in both directions in the manner provided in Rule 99.
The regular train receiving this order must run expecting to find the work extra protecting itself within the limits named.
It is admitted by counsel that the following order was found on the body of Mr. Ernest E. McDonald, immediately after his death.
SOUTHERN RAILWAY COMPANY
Form 31 Train Order No. 3 Form 31
To Conductor & Engineman At Manassas Station Train Eng. 832
Work extra 832 will work four forty (440) AM. Until nine (9) AM between Manassas & Broad Run
Conductor and Engineman must both have a copy of this order
Time received 440 AM. OK. Given at 441 AM.
Conductor Engineman Train Made Time Operator
McDonald Amos EX 832 Complete 441 AM Hixson
N. J. O.
It is also agreed by counsel that the watch is admitted for the sake of showing that apparently it stopped at the hour 5:13, and that the watch as presented shows that; and that it is the watch of Mr. McDonald which was found in his possession immediately after his death.
Mrs. Carrie McDonald a witness of lawful age, being duly sworn, testified as follows: Q. Mrs. McDonald, where do you live? A. In Alexandria
Q. Are you the widow of Ernest E. McDonald? A. I am
Q. Please state your full name? A. Carrie McDonald
Q. At the time of your husband’s death how many children did he leave? A. Three
Q. What are their ages? A. Two months, and four years, and six years.
Q. Will you give me the names of the children, giving the oldest first? A. Robert
Q. Next? A. Mary
Q. The Youngest? A. Ernest
Q. Now how old is the boy? A. Seven
Q. Mary? A. Five
Q. And the youngest? A. He is dead.
Q. How long after your husband’s death? A. Two months
Q. What was the age of your husband at the time of his death? A. He would have been 29 in December after he was killed.
Q. What was the condition of his health? A. Perfect
Q. What were his habits? A. Perfect
Q. Do you know what was his occupation at that time? A. Conductor.
Q. Do you know the average pay he received at that time? A. Something over one hundred dollars a month.
Q. What means of support did he leave you? A. Very little.
Q. Sufficient to maintain you and your children? A. No sir, I haven’t any home. I do not own a home.
Q. Have you any means with which to support yourself? A. No sir, only by taking a few boarders. My health is such that I couldn’t do that if it was not for the help of my mother and sister.
Q. How long has it been that your health has been so bad? A. Since my husband’s death. Of course it was not perfect before, but it has been worse since.
Q. Your nervous system very much shattered? A. Yes sir.
Q. Which of course interferes with your earning a living? A. Yes sir.
Q. Nervous condition brought on by your husband’s death? A. By the shock of his death, yes sir.
Q. You have suffered a great deal ever since from the effect of it? A. Yes sir; almost constantly under the care of a physician.
Q. How old was the child at the time of your husband’s death? A. Two months old the day he was buried and died two months after his death.
Q. So now you only have two children? A. Only the two.
Q. That’s your husband’s watch isn’t it? A. Yes sir.
Q. You have had it in your possession ever since? A. Yes sir. Locked in his desk.
Q. And you have had these orders in your care? A. Yes sir, in that pocket book which I brought here.
Q. And you gave them to me? A. Yes sir.
Mr. Caton: May it please your Honor we desire to offer in evidence the American Experience
Table of Mortality, which I believe is recognized. This is the Life Insurance Manual published by Flitcraft, an insurance publication showing that at the age of 29 the expectation of life is 36,03 years.
TESTIMONY FOR DEFENDANT
Mr. C. N. Amos, a witness of lawful age, being duly sworn, testified as follows: Q. Mr. Amos, will you give your full name, please? A. Charles N. Amos.
Q. State where you reside, sir? A. Manassas
Q. What has been your occupation? A. Engineer.
Q. Locomotive Engineer? A. Yes sir
Q. Were you occupied that way, the morning of November 15, 1901 A. Yes sir.
Q. What engine were you on that morning? A. 832
Q. Same engine Mr. McDonald had in charge as Conductor? A. Yes sir.
Q. Did you bring that engine up from Alexandria to Manassas? A. No sir.
Q. You took charge of it at Manassas did you? A. Yes sir.
Q. Where did you take charge of it? A. At Manassas
Q. Will you state when she reached Manassas whether the engine or the caboose was in front? A. Caboose was behind when it reached Manassas.
Q. That is towards Alexandria, do you mean? A. Yes sir, engine headed west or south as it is here.
Q. Will you state what, if anything, made up that train, except the engine and the caboose? A. No sir, nothing but an engine and caboose?
Q. Will you state whether or not Mr. McDonald knew before he started out from Manassas toward Strasburg that there was any train ahead of him?
OBJECTION - QUESTION WITHDRAWN.
Q. Did you know before you started from Manassas that there was any train ahead of you going west? A. Yes sir.
Q. How did you know it? A. Operator here told me.
OBJECTION ON THE GROUND that the information should be in the order; that is an unauthorized statement..
The Court: What was the occupation of the person who told you the train was ahead of you?
The Witness: Telegraph operator
Mr. Moore: If your Honor please I have a rule here which requires the telegraph operator to keep
a register, and requires the conductor to keep himself notified of the register. I submit, however, that all we want to prove is knowledge here. We are not going to prove that anything inaccurate was communicated, but only the cold facts were communicated that the gentlemen on this train, both of them, were unformed of what was an absolute fact that 546 was running ahead of them. I submit I have a right to do that.
Mr.Burke: There might have been a hundred trains ahead of him.
The Court: I am unable to see on the ground that can be objectionable. He has a right to show all
the circumstances surrounding this accident.
Q. Mr. Amos, state by whom, if anyone, you were informed before you left Manassas that morning that there was a train ahead of you?
OBJECTION. OVERRULED. EXCEPTION.
Answer: We were told by the operator, Mr. Hixson.
Q. What train did he say?
OBJECTION. OVERRULED. EXCEPTION
Answer. Freight Train
Note: It is to be considered that all questions on this point are objected to, overruled and excepted
Q. Will you state whether or not Mr. McDonald knew that fact? A. Yes sir, he knew that too.
Q. Will you state whether or not he spoke to you about it. A. We were both told at the same time: We were standing at the office, when the operator told us.
Q. Who was the operator? A. Ed Hixson.
Q. Will you state whether or not Mr. McDonald had any change made in the formation of that train before he left Manassas that morning on his westward journey? A. Yes sir, he turned the whole train around, engine and caboose.
Q. So as to head the caboose in what direction? A. West
Q. And was the engine east or west of the caboose? A. East
OBJECTION to these questions on the ground that it was the duty of the yard master to make up
these trains for these people to take along the road.
The Court: I think he has a right to show the facts.
Q. When you started out from Manassas west, on the line toward Wellington, what was your position, Mr. Amos? A. My engine was east of the caboose.
Q. Where were you, on your engine, or in the caboose? A. On the engine.
Q. That gave you a lookout in which direction, east or west? A. Looking toward the front of my engine would give me a lookout east.
Q. Toward Alexander or Wellington? A. Toward Manassas.
Q. Looking west from your engine, what would interrupt your view, if anything? A. Why the caboose back there behind.
Q. Will you state whether or not you had any conversation with Mr. McDonald about that arrangement? A. Yes sir
Q. What was that conversation? A. I told him it was a bad idea to carry the caboose in front of the engine, especially at night, and it was bad in running backwards, if for no other reason, that for stock getting on the track, or anything like that there was nothing to protect the train from being thrown off.
Q. What did he say when you remonstrated with him? A. He said it would be all right.
Mr. Burke: I object to using the term “remonstrate”
Q. What did you say to him? The Judge wants to know what did you tell Mr. McDonald. A. When he asked me about it.
Q. Yes? A. I told him it was a bad plan to run the train backwards.
Q. State whether or not you considered it a dangerous plan?
OBJECTION OVERRULLED EXCEPTION
Answer: Yes sir, I think it is dangerous.
Q. How long had you been an engineer? A. Eleven years.
Q. Will you state whether or not Mr. McDonald, after what you said made any change? A. No sir.
The Court: Did he say anything?
The Witness: He said that would be all right, to go ahead and he would look out for me.
The Court: Where?
The Witness: From here to where we had to go.
The Court: Where did he say he would take his position?
The Witness: In the cupola.
The Court: Did he say he would signal you, if there was any trouble.
The Witness: Yes sir.
The Court: Did he signal you?
The Witness: No sir. Nobody signaled me at all.
Q. Going westward would your headlight be towards Wellington or towards Alexandria at the rear of the train? A. Towards Alexandria.
Q. State what the dimensions of this caboose were, roughly, I don’t expect you to be exact, as to height and width. A. About I suppose, the caboose is wide as any ordinary car, eight feet, something like that.
Q. About the height? A. About the height of any ordinary box car, with the cupola on top, making it still higher in the middle two and a half or three feet.
Q. You have stated that Mr. McDonald told you he would stay in the cupola so as to give you warning, and you have stated you did not get any warning from him. A. No sir, never saw him after I left Manassas, until we struck this train.
Q. What rate of speed were you running up to Wellington? A. I ran between twenty and twenty-five miles an hour.
Q. Did you stop at Wellington? A. No sir.
Q. State what sort of a night it was as to light? A. It was a cold, windy night.
Q. Moonlight or Starlight? A. Starlight
Q. Do you remember what hour it was when you left Manassas? A. I left the passenger depot exactly at 4:50
Q. When did this collision occur? A. 5:13
Q. Will you state whether or not you struck and torpedoes before the collision? A. No sir, never struck a torpedo from here to where I hit the train.
Q. Will you state whether or not you got any signal from any lantern before you struck the train? A. No sir, only at Wellington. When we blew for the station at Wellington it is customary to get a signal and I got a signal there. I don’t know who it was from; it was from the cupola.
Q. From the cupola of your train? A. Yes sir.
Q. Of your train? A. Yes sir that’s customary.
Q. Did you get any signal outside of your own train? A. No sir.
Q. Did you see any flagman’s lantern? A. No sir.
Q. State whether or not there was any sign of a fuse having been put out? A. No sir.
Q. Do you know about the place where you struck the rear of the other train 546? A. Yes sir.
Q. Now suppose you had been running your engine in the ordinary way, facing that other train, going west, will you state how far you could have seen the rear lights on 546 before you reached it? A. You could have seen it at least half a mile.
Q. State whether or not that would have given ample opportunity to stop? A. Yes sir.
Q. Mr. Amos, these rules that we have been talking of here today, contained in this book which I show you, are the rules, were they, which were in force at the time? A. Yes sir.
Q. Had you run over the Manassas line before that? A. Yes sir.
Q. Were you, or not, familiar with that branch? A. Yes sir.
Q. State whether or not Mr. McDonald had been over it before? A. Yes sir, he had been over it.
Q. State whether or not he was familiar with it? A. Yes sir. I ran with him three years up there.
Q. Will you state, so far as you know, whether or not anybody but McDonald was responsible for the way that train was made up at Manassas?
The Witness: Right up in the top of the cupola to us, looking right straight that way.
The Court: You train was running back and you were looking west?
The Witness: Yes sir, I was looking the way we were going, but my engine was still heading this
Q. You were looking at the cupola of the caboose? A. Yes sir.
Q. State whether or not you could see the track beyond the end of the caboose? A. No sir I could not see the track beyond the caboose.
Q. State whether or not there was an opportunity for you to keep a lookout west? A. None at all
By Mr. Burke
Q. You have stated, Mr. Amos, the reason why the caboose was in front of the engine and the engine was going backward? A. Yes sir.
Q. The reason for that movement was that you had to go to a place called Gap Siding and get a load of cars, loaded with ballast and bring them back in the direction of Manassas and it was thought most expedient to run the caboose and engine backwards than run the whole train backwards, because you had no “Y” to turn the train back? A. You would not have to run the train backwards, only the engine, if she went up there with the caboose in front of the engine.
Q. But when you went up there you had to bring your engine backwards? A. Yes sir.
Q. If you had not backed up with the caboose, you would have had to run backwards, one way or the other? A. You would either have to pull it backwards or push it backwards
Juror: In returning from this siding, if you had run up the engine ahead, would not the tender be
in front coming back?
The Witness: Yes sir.
Q. In other words, you had no way of turning around up there? A. No sir.
Q. I will call attention to rule 24, page 18, of the book of rules and ask you if you recognize that rule. A. Why certainly, yes sir.
Mr. Burke reads rule 24, which is as follows: “24. When cars are pushed by an engine (except
when shifting or making up trains in yards a white light must be displayed on the front of the leading car by night.”
Q. It was permissible and allowable then to push these cars provided you had a white light on the leading car? A. Yes Sir.
Q. By the rules of the Company? A. Yes sir.
Q. Do you recognize rule 102, page 25, of the rule book? You knew that rule didn’t you? A. Yes sir, Oh yes sir.
Mr. Burke: I will read that to the jury with your Honor’s permission.
#102. When cars are pushed by an engine (except when shifting and making up trains in yards, a flagman must take a conspicuous position on the front of the leading car, and signal the engineman in case of need”
Q. You knew then that you had a right to run them backwards, provided a flagman was on a conspicuous position in the rear? A. Yes sir, that says pushing, you know; we was backing.
Q. Backing is pushing; you were pushing the car in front? A. No sir, we were backing the car backwards.
Q. Wasn’t the car in front of the engine? A. The car was behind the engine.
Q. If the car was behind the engine, then the engine was in front? A. The engine was headed east and the caboose west.
Q. Was the car behind the engine? A. But we were pushing the car.
Q. Backing it? A. Pushing it.
Q. Suppose you stand in front of me and push, aren’t you pushing me? A. I am backing you then.
Q. Page 109, rule 558, you have seen that rule of course? A. Oh yes, yes sir.
Mr. Burke reads rule 558, as follows:
“558. They must never run their engines backward over the main track when they can be turned, unless they have orders to do so, or circumstances require it. When so running, they must never exceed the rate of thirty miles per hour.
Q. You said you were running 20 miles an hour? A. Between 20 and 25
Q. Now there was a cupola on this caboose, as I understand you? A. Yes sir
Q. What’s that there for? A. That’s for men to ride in.
Q. For what purpose? A. To see the train; to look over the train.
Q. To look out and keep a watch; isn’t it for that purpose? A. Look out over the train.
Q. Could you sit on the train, back end of the train, and see any car coming or anything like that? A. Yes sir.
Q. In other words there is a place so arranged for a flagman up there to observe and give information to the engineer by signals? Is that correct? A. Yes sir that’s correct.
Q. Do you know whether or not on the night of this accident there was anybody in that cupola? A. Yes sir.
Q. Who was in there? A. I don’t know who it was.
Q. There were people in there? A. Yes sir.
Q. Did they have lamps? A. They had a lamp at Wellington.
Q. Do you know whether or not they signaled to you? A. They gave me a signal at Wellington.
Q. Do you know whether or not they gave you a signal a brief time before the accident? A. No sir, no signal given.
Q. No signal given? A. No sir.
Q. You did not see any lamp swung out signaling you? A. No sir.
Q. There were no torpedoes on the track? A. No sir.
Q. Mr. Amos, have you been there and looked over the situation of this accident since it occurred, so as to inform yourself of the topography of the ground and the direction of the track? A. Yes sir.
Q. Don’t you know there is a curve there? A. Very slight.
Q. I didn’t ask you if it was slight I asked you if there was a curve. A. Yes sir, there is a curve.
Q. To the right or left? A. To the left.
Q. Do you recall whether or not there are trees growing along the railroad in the arc of the curve? A. There are woods there on each side of the track.
Q. Tall woods? A. Yes sir.
Q. Do you know whether or not those woods would obstruct the view of the persons in the watch tower or cupola of the caboose car, when that car got to the top of that hill where it has been testified the engine was stalled, the other engine was stalled? A. No sir, those woods would not obstruct the view.
Q. You testify to that? A. No sir they would not.
Q. Did you go there with the view of ascertaining that fact? A. No sir, I did not go there on foot.
Q. Never did? A. No sir.
Q. Only went there on trains? A. Yes sir.
Q. Which side of the engine were you on going west that morning? A. I was on the east side.
Q. East side of the engine? A. Yes sir, south side of the engine.
Q. And the curve was to the left? A. Yes sir, same side.
Q. You were then within the arc of the curve For instance, here is a curve (indicating) here’s Wellington down here (indicating) you remember that crossing up there (indicating)? A. Yes sir.
Q. What crossing is that, do you know? There is a cattle guard there? A. Yes sir.
Q. You remember this little stream up there (indicating) A. Yes sir.
Q. Isn’t that on the curve? A. Yes sir.
Q. Don’t you know there are woods between this point here (indicating) where the crossing is, and that stream where the accident happened? A. Woods on both sides.
Q. I am talking about the left, I don’t care about the right. A. Yes sir.
Q. You say there are woods in between there? A. Yes sir.
Q. And you say that would not obstruct the view. A. No sir.
Q. There is quite a hill before you reach that crossing isn’t there? A. Beyond where the train was? A. beyond Wellington and before you reach the crossing? A. Yes sir, there was a hill there.
Q. After a train has gone over the crest of that hill and has moved down, could a person on this side of that hill see that train? A. Oh no, not from Wellington, no sir.
Q. Before you get to the top of that hill that crest could you see a train on the other side? A. Not until you got to the top of the hill.
Q. How far is it from that crossing up there to where this accident happened? A. I don’t know exactly, a good distance.
Q. How near to the stream did the accident happen? A. I don’t know sir, I never measured it.
Q. Don’t you know the rear of the caboose car of the proceeding train was burnt right at that spot? A. I don’t know about that. There is no flowing stream there.
Q. I am not talking about whether it is a flowing stream or a stagnant stream, or whether it is standing water, I am talking about that culvert. A. I know where it is all right.
Q. Now, tell us how far from that place where that stream sometimes flows and is sometimes standing water was it that the caboose was destroyed? A. How far from where?
Q. From that spot, that culvert. A. I don’t know sir.
Q. You don’t know? A. Don’t know how far from the culvert it was, didn’t measure it.
Q. Can’t you estimate a distance without absolute measurement? A. No sir
Q. You have to take a tape line every time you want to say how far one place is from another? A. If you want to know exactly.
Q. I asked you just like I would ask a member of the jury how far it is from here over to there, just like that. I want to ask you how far it was from that caboose to the culvert where the collision took place?