Q. Wasn’t it down in the depression after crossing the hill, where the accident took place? A. There was a little sink down there.
Q. That was where the accident happened? A. Yes sir.
Q. And on the curve and by the woods and down in the depression? A. Yes sir.
Q. Mr. Amos, you knew Mr. McDonald a long time? A. Yes sir.
Q. You and he were friends weren’t you? A. Yes sir.
Q. Good friends? A. Yes sir.
Q. what kind of a man was he in respect to his habits? A. Good man
Q. Careful man? A. Yes sir.
Q. Prudent man? A. Yes sir.
Q. Did you ever know him to do an imprudent thing since you railroaded with him? A. I railroaded with him about three years, ----
The Court: He can prove his character. I think he has a right to show what sort of man he was.
Q. Sober man? A. Yes sir.
Q. After this accident were you discharged from the Company. A. No sir.
Q. You were not discharged? A. If I was I didn’t know of it. I was held off for nine months.
Q. How long have you been in the employ of the Southern Railway Company since the accident.
OBJECTION OVERRULED EXCEPTION
A. I don’t know sir, a little over a year.
By Mr. Moore
Q. Mr. Amos, Mr. Burke has asked you if Mr. McDonald was a prudent man, and you said yes. Will you state whether or not you ever knew him to do a thing as imprudent as that in the night before?
Mr. Burke: I OBJECT. That assumes it was an imprudent act.
Q. Will you state whether you consider it an imprudent act?
OBJECTION OVERRULED EXCEPTION
Answer – Yes Sir.
Q. Mr. Amos you stated in reply to a question by Mr. Burke that you got a signal from the cupola at Wellington. A. Yes sir.
Q. How far was that from the point where the collision took place? A. About two miles.
Q. State whether or not there was any signal of any character whatever given you after that? A. No sir, none whatever.
Q. Can you state what lights, if any, were displayed on that train of yours? A. Train had two red lights behind regular markers.
Q. In full view weren’t they? A. Yes sir.
Q. State whether or not there was any bell cord, on that work train by which you get a signal in that way from the cupola? A. No sir, there was no bell cord. There was an emergency cord in the caboose and our air was coupled up to the caboose and could have been applied inside the caboose by this emergency cord.
Q. State whether or not it could be applied so as to help you on the engine? A. Yes sir it could have been applied in there just as I could apply it on the engine.
Q. Did you get any signal in that way? A. No sir.
Q. You have been an engineer a long time, will you state whether or not you have ever known in your own experience before this time a train to run that way at night, when there has been notice that there was another train in front?
Answer-No sir, I have never run a train that way myself.
Q. Did you ever know of any? A. No sir, I don’t know that I know of any; not meaning to say I have not run engines backwards, but not that way.
By Mr. Burke
Q. In what way did you know engines and cars to be run backwards? A. I have known engines to run backwards with the cars following the engine, with the cars coupled to the front of the engine. The tender being in the lead.
Q. Mr. Amos, do I understand you to say you were keeping a lookout and you were on the left hand side of the engine and the curve turned to the left and you did not see this train in front of you? A. No sir, I did not see anything at all.
Q. You don’t know whether it had red lights in the rear of the caboose? A. No sir.
Q. You did not see any red lights? A. No sir.
Q. And you were on the lookout? A. Doing all I could sir.
Mr. Edward Hixson, a witness of lawful age, being duly sworn, testified as follows: By Mr. Moore
Q. Mr. Hixson what was your occupation on the morning of the 15th of November 1901? A. Telegraph Operator at Manassas.
Q. Will you state whether or not you saw Mr. McDonald that morning, the engineer of 832, conductor, I mean? A. I saw him the time I gave him the orders, that’s the only time I remember.
Q. State whether or not you notified him of any trains ahead of him? A. Yes sir I did.
Q. What notification did you give him? A. I simply told him that that other extra had left there forty or fifty minutes ahead of him to look out for it.
Q. What was the number of that other extra? A. I don’t know.
Q. Who was in charge of it? A. Engineer Cullen and Conductor Wattell.
Q. State whether or not it was your duty, under the rules to give Mr. McDonald that notice? A. No sir, it was not. The rules call for a block in 15 minutes, and he had been gone forty or fifty minutes. I simply took the safe course to notify him.
Q. You took the safe course? A. Yes sir.
Mr. Burke: I move to strike that out.
The Court: I think he has a right to show that.
Q. Was this a register station? A. Yes sir, for Manassas Road Stations.
Q. This was Manassas Road Train? A. Yes sir, both of them.
Q. State whether or not it was the duty of all trains leaving there to register? A. Yes sir, all trains going up Manassas road.
Q. State whether or not it was the duty of the conductors to consult the register? A. Yes sir.
Q. Where was that register kept? A. Kept right there at the office.
Q. Was Mr. McDonald at the office when you notified him? A. Yes sir.
The Court: What does that register show?
The Witness: I don’t remember.
The Court: Don’t you know what’s on the register. What does the register show?
The Witness: I don’t remember.
The Court: I don’t mean what it showed that day. What is shown on the register, what shows on
Q. Show the number of the engine? A. I don’t remember what it was.
Q. I’m not asking you the number of the engine, but does the register book show the number of the engines? A. Yes sir, it most surely does.
Q. State whether or not that register was open that morning for the employees of the road to look at? A. Yes sir it was.
Q. State whether or not Mr. McDonald registered that morning? A. Yes sir, he did.
Q. what train had registered next before he registered? A. Well I don’t remember, the extra that went out. It was the extra that went out in front of him.
Q. Was it the one that Cullen and Wattell went out on? A. Yes sir.
Q. That is the one that registered just before he registered? A. Yes sir.
Q. State whether or not it showed the hour the train left? A. Yes sir.
Q. That register was kept for the purpose of trainmen coming there and registering the arrival and departure of trains? A. Yes sir.
Q. Is that all? A. Yes sir.
Q. That’s all? A. Yes sir
Q. They don’t have to go and look over the register and see what trains have passed? A. Supposed to see if all superior class trains are in before they leave?
Q. They are not supposed to look over that, they go by dispatches for the dispatchers? A. No sir, not altogether.
Q. What do they go by? A. As a general thing they go by the train orders.
Q. Did Mr. McDonald have a train order that morning? A. Yes sir.
Q. Who gave it to him? A. I did.
Q. Is that a copy of the order? (Hands witness train order hereinbefore introduced)? A. Yes sir. That is a copy of the order
Q. That was the chart by which he was to proceed? A. yes sir.
Q. He had to be governed by that? A. Yes sir.
Q. Nothing else? A. Well, only superior class train, supposed to look out for all of them.
Q. What is a superior class train? A. Regular scheduled train of any sort in that case.
Q. A regular scheduled train is a superior class train that he would have to look out for? A. Yes sir.
Q. Do you know whether the train that Wattell and Cullen were on was a scheduled train? A. No sir, it was not, I think.
Q. Then he would not have to look out for that? A. No sir, not unless he was notified, which I done.
Q. You say it was not in the line of your duty to notify him? A. No sir, not exactly, but in such cases, I always try to be on the safe side. I did notify him.
Q. Who was present? A. I think the engineer was, if I am not mistaken.
Q. Where was it? A. Right in the telegraph office at the register.
Q. What did he say? A. Told me alright.
Q. That was all that was said? A. Yes Sir.
Q. In what way would he look out for a train preceding him except simply by watching out as his train proceeded on the journey by looking to the front, there is no other way? A. Well I don’t know, I am not very familiar with such things as that. I have never been out on a railroad. I should think that would be the only way.
Q. Who was sent out after this train, - where was the nearest operator to you that night, operating a telegraph office over that line of railroad? A. There is no office open up there at night, except Strasburg.
Q. How many miles is that from you? A. I don’t know the exact distance.
Q. About sixty miles? A. Yes sir.
Q. When a train is sent out from one station, you telegraph to the station in advance that you have sent the train off? A. Where the block rules are used.
Q. Under the law don’t you do that? A. Yes sir, as a general thing we do.
Q. That such a train has left Manassas at such an hour? A. Yes sir
Q. Then when that train arrives at the next operating station he telegraphs back to you the arrival of that train? A. Where the block rule is used he does, there is no block on the Manassas Road.
Q. I mean under the law does he telegraph you at Manassas?
Mr. Moore: I OBJECT to that. He is not an expert on the law.
Q. Doesn’t the operator in the day time when you start a train from here after it arrives at the first telegraph station on the Manassas Branch, doesn’t the operator telegraph you that train number so and so has arrived, and when it departs? A. No sir, not on the Manassas Road.
Q. Doesn’t he telegraph that to the train dispatcher in Alexandria? A. Yes sir.
Q. Doesn’t send it to you, but the train dispatcher in Alexandria? A. No sir.
Q. On the Manassas Road doesn’t he do it. Doesn’t he telegraph to the train dispatcher that the train has arrived? A. Yes sir.
Q. During the day time he does that? A. Yes sir, and night time.
Q. You say they didn’t have any operator this night in their offices? A. No sir, not at night.
Q. Then the dispatcher when he gets this dispatch from the next station, if it was daylight, he would give orders as to the movement of the following train. A. Yes sir, as a general case he would.
Q. If there had been a telegraph station within ten miles of Manassas with a telegraph operator there to give information of the movements of trains at that point, and that operator had telegraphed you that the train 546 had not reached there would you have sent out this other train in the tight time, or would you have given them notice?
Mr. Moore: You are putting to him an entirely hypothetical question, which is not relevant.
Mr. Burke: I am putting to him a question to obtain the modus operandi of running these trains
over their roads inter—in governing the movement of that train.
Q. If there had been a telegraph operator at the nearest station at night when you sent out on the Manassas Road engine 546, wouldn’t you have telegraphed him that you had sent out that train; and the date of its departure? A. As a general thing we only give that to the train dispatcher.
Q. Would you have given it to him at night? A. I think I would, yes sir.
Q. You would have given it to the train dispatcher? A. Yes sir.
Q. then if there had been a telegraph operator there his duty would have been to notify you of the train dispatcher in Alexandria that train No. had not arrived?
OBJECTION, same as above, SUSTAINED
Q. Who did you receive that order from, Mr. Hixson? A. From the dispatcher in Alexandria.
Q. From the train dispatcher? A. Yes sir.
Q. Did you receive the order which you gave Wattell and Cullen from the train dispatcher in Alexandria? A. Yes sir.
Q. Receive both orders from him? A. Yes sir.
Q. Do you know what were the markers on the first train; Wattell’s train, that left Manassas that morning? A. what were the Markers? Yes Sir.
Q. Do you know what they were? A. Two red lights
Q. Are you sure of that, Mr. Hixson? A. Quite sure of that, yes sir, most sure it was.
Q. You have not made any statement to anybody that they had other lights besides? A. That’s my memory, I have not, no sir.
By Mr. Moore
Q. In November, when this accident occurred, tell whether there was any train dispatcher located at Manassas? A. No sir, the dispatcher was located at Alexandria.
Q. State whether the Manassas line has ever been operated by the block system. A. Not to my knowledge.
Q. You said something about detaining, blocking a train for fifteen minutes. A. That’s spacing. You space them fifteen minutes at a terminal point like this.
Q. You mean you would not allow 833 to leave until fifteen minutes had elapsed since 546 went out? A. Yes sir.
Q. That’s the only precaution you take? A. Yes sir, I took the safe side and notified him the train had left ahead of him.
H. S. Funk a witness of lawful age, being duly sworn, testified as follows: By Mr. Moore:
Q. Will you give your full name? A. Hugh S. Funk
Q. Were you connected in any way with the Southern Railway Company, November 1901 and prior thereto? A. I was Agent at that time. I have been employed by the Southern Railway Company for twenty-one years.
Q. Agent at what point? A. Strasburg.
Q. Did you know Mr. Driver, the young flagman who was killed in the accident at Wellington on the morning of November 15, 1901? A. Yes sir.
Q. Will you state whether that paper which bears his signature and is witnessed by you, ----------- A. Yes sir, that’s his signature, and my name as a witness.
Mr. Moore: That’s all I wish to ask him.
The Court: Do you want to introduce that paper in evidence?
Mr. Burke: We Object to that.
Mr. Moore: I offer this paper in evidence, signed by Walter E. Driver.
“24. Will you study the rules governing employees on this road carefully, keep informed and obey them.” Answer – “Yes”
Mr. Moore: If your honor please, I offer that book of rules in evidence.
The Court: I admit it in so far it is relevant.
Mr. Burke: We would like to know what part.
The Court: You can only admit such part as is relevant.
PLAINTIFF’S TESTIMONY IN REBUTTAL
Mr. E. C. Lanum a witness of lawful age, being duly sworn, testified as follows: By Mr. Burke
Q. State your name and residence, Mr. Lanum. A. E. S. Lanum, Alexandria
Q. What is your employment? A. Now?
Q. Yes sir. A. Conductor Southern Railway.
Q. Do you remember the days or the occasion of the death of Ernest E. McDonald? A. No sir, I do not, only from what I hear from others.
Q. Do you remember the occasion? A. Oh, yes sir, I remember when he was killed.
Q. Were you present? A. Yes sir.
Q. What were you doing there? A. I was brakeman.
Q. On the train of Mr. McDonald? A. Yes sir.
Q. What did it consist of? A. Consist of? Wrecked somewhere up the road here.
Q. I mean what did it consist of when it left Manassas A. Extra.
Q. What did the train consist of, an engine? A. And a caboose.
Q. Now, where was the caboose, in front of the engine? A. Behind the engine.
Q. Preceding the engine going in the direction of Gap Siding? A. Going that way, I don’t know where to.
Q. You don’t know where the train was destined? A. No sir.
Q. Where were you standing on that train? A. In the cupola of the caboose.
Q. For what purpose? A. To watch out were the instructions I had from the conductor.
Q. Watch out for what? A. Anything I might see; didn’t say what.
Q. Who was the conductor? A. Ernest McDonald.
Q. Was anybody stationed up there with you to look out? A. Flagman Stover.
Q. He was stationed there? A. Yes sir.
Q. Did you keep a lockout? A. Yes sir.
Q. What did you see? A. Well, I never seen anything until I seen the rear end of the train I ran into.
Q. What did you do? A. I used a lamp to signal the man behind.
Q. You mean the engineman? A. Yes sir.
Q. Who was the engineman? A. Mr. Amos, I believe.
Q. Did you signal the engine? A. I had the lamp out the window. I was too scared to tell you.
Q. Was the collision sudden and quick? A. It seemed so to me.
Q. What became of you? A. I don’t know.
Q. Did you see Mr. McDonald? A. Yes sir, I seen him afterwards.
Q. Where was he? A. Lying along side the track.
Q. Do you know whether Mr. Stover, did he swing a lantern? A. No sir, I do not, I don’t recollect.
Q. You know that you did not? A. I know I had a lantern out the window, but whether I swung it and gave him the stop signal I can not tell.
Q. Did the collision occur instantly after that? A.I couldn’t tell.
Q. Could the engine stop before the collision? A. I don’t know. I was a new man, did know the road, didn’t know anything about the road.
Q. Now you are a conductor? A. Yes sir.
Q. You have been promoted since you didn’t swing? A. Yes sir.
Q. You put the lantern outside of the caboose out of the cupola? A. Yes sir.
Q. Did you intend to give a signal? A. Yes sir.
Q. Did you know what kind of a signal to give? A. Yes sir.
Q. And you made an effort to give that signal? A. Yes sir.
By Mr. Moore
Q. Mr. Lanum you didn’t run over any torpedoes? A. No sir.
Q. Any Fusees> A. No sir.
Q. Get any signals from the other train? A. Nothing but the markers.
Q. Did anybody go up the track to give you a signal? A. No sir.
Q. The first thing you saw were the markers on the other caboose? A. Yes sir.
Q. Didn’t get anything to show that the other train had protected itself? A. No sir.
Q. You were up there in the caboose, and you say what you saw, you saw so quick that you just put the lantern out of the window, and don’t know how it happened, and you don’t know whether the engineman could see it, you were scared nearly to death, were you? A. I was scared alright. It would scare the best of us too.
Q. Yes it would, and you don’t know what happened afterwards? A. No sir I do not.
The Court: Were you knocked unconscious?
The Witness: No sir, I was not unconscious.
Q. Where was Mr. McDonald, do you know? A. The last recollection I had of him was he was down in the caboose looking out of the window, that’s the last time I seen him.
Q. The engineer was not in sight of him? A. No sir.
Q. He was not in any place where he could give a signal? A. Last time I seen him he was not.
Q. Last time you saw him alive? A. Yes sir. I hadn’t seen him since we left Manassas coal bin.
Q. He didn’t go up in the cupola? A. No sir.
Q. You were up there a young fellow? A. Yes sir, was instructed to go up there.
Q. A young fellow who had just come on? A. Yes sir, he told me where to go and where to get.
Q. And he stayed down where he was out of sight of the engineer and you did not see him come up in the cupola at all? A. No sir.
Q. He was at the rear end of the caboose was he? A. He was at the front end of it, the was it was going.
Q. The west end? A. Yes sir.
By Mr. Burke
Q. Did you hear his instructions to Mr. Stover, telling him to go up. A. I didn’t hear his instructions to Mr. Stover, didn’t hear any except what he gave to me.
Q. Right afterwards he was up there with you? A. Yes sir.
Q. How many people will that cupola hold? A. Half dozen can get in there by tight squeezing.
Q. Depend upon the size of the men somewhat? A. Men your size could get in.
Mr. C. T. Goods, a witness of lawful age, being duly sworn testified as follows: By Mr. Caton
Q. Mr. Goods, what is your full name? A. C. T. Goods.
Q. Where do you reside? A. Alexandria.
Q. Are you the administrator of Ernest E. McDonald? A. I am.
Q. Plaintiff in this case? A. Yes sir.
Q. Have you ever been over the Manassas Road in the employ of the railroad or otherwise? A. I have been over it often. I was employed on the road about eight years.
Q. Are you familiar with the road between here and Gap Siding. A. Pretty well sir.
Q. Have you ever been to the scene of the accident in which Ernest E. McDonald was killed. A. I have sir.
Q. You are familiar with the location of the ground there? A. Pretty much so sir.
Q. Did you examine the ground? A. Yes sir.
By Mr. Burke: Who were you with at that time? A. I was with Mr. Caton.
Mr. Burke: This Mr. Caton? A. Mr. James R. Caton
Q. From what point did you start in making that examination after leaving Manassas? A. We started from Wellington and went on out to the scene of the accident.
Q. Have you heard Mr. Amos’s testimony today? A. Yes sir.
Mr. Moore: I object for the reason that in their declaration they allege that the approach was
obscured, and it was a part of their case in chief to prove it. They did not under take to prove it, and I submit that they are not to be allowed upon an invitation which our evidence gives them to go into the examination in chief.
The Court: Of course in actions of this sort, contributory negligence is to be proven by
affirmative proof and the burden is upon them to sustain it. This does seem to belong to evidence in chief, but on the theory that it undertakes to rebut the testimony of Mr. Amos, I will allow you to ask him the question.
Mr. Moore: Have you been up there since the accident?
The Witness: Yes sir.
Q. Will you state whether the track approaching the crossing or cattle guards going west is straight or curved? A. You go up to the cattle guard out from Wellington; you go up kind of a hill; kind of a winding curve; and you cant see the other side, anything the other side of the cattle guard at all, until you get right to it; you have to cross over it before there is any view whatever on the line of track at all.
Q. Then the track curves from the bottom of the grade this side of the cattle guard? A. Kind of winding curve.
Q. The arc of the curve is no the left side? A. Yes sir.
Q. And you can’t see anything going up that grade or curve until you get to the cattle guard? A. There is a fence there which obstructs the view of everything above the cattle guard.
Q. After you get to the cattle guard what obstruction is there along the left side of the road? A. There is woods, lots of trees; the limbs extend to the track. Of course at that time of the year leaves would be all over, you couldn’t see hardly from the cattle guard the other day when we were up there. Some shrubbery growing on that little rise before you get to it; I suppose ten feet from the track.
Q. Which way does the track curve? A. Kind of this way, to the left, goes down a little dip.
Q. After you pass the cattle guard you go into a little dip? A. Yes sir.
Q. Where was the accident with reference to that dip? A. It was right down in that dip, right on the other side of that pipe that runs through the track.
Q. Little culvert? A. Yes sir.
Q. Mr. Goods, coming up the curve on the left hand side of the road towards the point of the accident, riding in an engine on the left hand side, how far could you see from the point of that accident? A. You could see about four telegraph poles, between four and five.
Q. Four or five telegraph poles? A. Yes sir, about five, mighty near I guess, I counted the telegraph poles from one mile to the other and there are thirty-four poles for one mile; they counted that day we were up there. There are 1760 yards to the mile you know and that’s a little over fifty yards to the pole.
Q. How far apart are those poles? A. About fifty yards, maybe a little more, just about 50 yards.