Answer – The point between Bristow and the point of accident, on the northbound track, showed signs of having been worked on recently.
The Court: Then, I will not permit you to testify to that.
Mr. Browning: Q. How near to Bristow Station to the north did it show signs of having been
worked on recently? Answer – Certainly within 500 feet of the station/
The Court: As to the 500 feet north of Bristow, I will let him testify to as it has not been changed.
By Mr. Browning:
Q. That 500 feet, did you examine it? Answer – Yes, sir
Q. What was the condition of it? Answer – The condition of the track for 500 feet north of Bristow was not as rough as through the station ground and south of the station. That is, the surface was better and the alignment was better.
Q. What would you say of the track for one-fourth mile south of Bristow Station as being, or not being, standard the condition of the track, I should have said? Answer – I would not consider it as standard track, as to ties, because that had a great many small ties in this track, ties not considered standard ties for first class track. In addition, the surface was not good. I have stated before it had low joints and low centers.
Q. What would be the effect, if you know, of that low track upon rolling stock, and especially of loaded freight cars? Answer – It would cause a choppy condition. That is, that the cars would take this kind of motion (indicating) on the springs, up and down, - that is, a vertical motion, and, in addition, it would put undue strain on the trucks and truck frames.
Q. Is it true that thaws and freezes have any effect on the condition of tracks? Answer – They certainly do.
Q. In working over your track do you frequently find, after a hard freeze and thaw, low joints? Answer – Yes, sir, after a freeze and then it thaws we frequently have low places.
Q. After a rain you have low joints sometimes don’t you? Answer – That is the case sometimes, yes, sir.
Q. A washout is really an exaggerated case of the effect of rain on tracks? If you have a washout, and it takes your ballast, you get low joints from that? Answer – I would not consider that would be the effect of rain; it would be an aggravated case.
Q. Now, a steady downpour for 24 hours on a piece of track that is under your charge, will you state whether or not that would be likely to produce low joints?
Mr. Browning: That is a hypothetical question, we presume.
Mr. Hall: I don’t know whether it is so hypothetical, because we have evidence that there was a
very heavy rain.
Mr. Hall: I will modify my question to say a continuous rain of 20 hours, would it have any effect
on your track?
Mr. Browning: We object.
Mr. Hall: Q. Would a hard rain have any effect on the track? Answer – If the track had proper
drainage I should not think in that length of time low joints would develop to any extent. Q. you never had any low joints develop on your track after a hard rain of nine or ten hours?
Mr. Browning: Now, I object to that because our track has nothing---
Mr. Hall: On any railroad tracks.
The Court: It is to test his information. I over-rule it.
Note: Objection is noted on behalf of Chesapeake & Ohio Railroad Company.
Q. (The question is read) Answer – Yes, sir, we have had in certain localities after all rains that we have; it depends very much on the character of the sub-grade and the drainage, etc.
Q. When you speak of that condition, isn’t it a fact it would occur more frequently at road crossings, and things of that sort, where there is more travel, directly after a rain? Answer I would say it would occur at places that were improperly drained.
Q. But isn’t it a fact that road crossings frequently produced low joints as compared with other places out on the track where there is not so much travel? Answer – I will say low joints are prevalent at low places, at road crossings, but I will say I believe it is not so much because of the road crossing as the lack of drainage. You have to pull up more tracks and smooth out, and I believe it is more a lack of that condition – improper drainage.
Q. Do you remember the kind of weather that we had between February 23rd 1915 and March 3, 1915? Answer – No, I can’t recall. I know that we had rain on the night of February 23rd, but between those times I can’t recall.
Q. You can’t recall whether it froze, or whether it thawed, or whether it was cold, or whether it was warm? Answer – No, I know on March 3rd it was a very pleasant day at the time we made an inspection. There was a good deal of wind blowing, but otherwise very pleasant.
Q. When you told the court you were positive on March 3rd the track south of Bristow Station was in the same condition as on February 23rd, did you ignore the possibility of freeze and thaw? Answer – What I meant was that no work had been done on the track between those days.
Q. His Honor asked you if you could testify that there had been any change in conditions on that track between February 23rd and March 3rd? Answer – That is what I can testify, that in my opinion no work had been performed on that track, either in smoothing or otherwise.
Q. We are not asking you whether work was done, but I am asking you whether there was any change in the condition on that track? In other words, whether on February 23rd there might not have been a perfectly well ballasted track at the roadcrossing at Bristow, and then subsequently there were freezes and then thaws. Can you say, coming along on March 3rd that there had been no change in the condition of that track, as you saw it? Answer – Yes, I can say there was no change. To make a change in the track, it would have to become worse, or repairs made on it, and what I mean is that there had been no repairs made.
Q. To come right down to rock bottom, can you tell this jury whether there were low joints on that track on March 3rd that were not there on February 23rd, or vice versa? Answer – Ask it again.
Mr. Browning: I object, as the witness has already answered.
The Court: I over-rule it, but want to ask a question.
Note: Exception is noted by C & O Railway.
The Court: Q. Can you state from your observation, from looking at that track, whether the joints
that you spoke of being low were low on the 23rd of February? Answer – Yes, sir, I would say the joints were low, and had been low for sometime. Now, as to the exact date when they became low, that is impossible.
Mr. Hall: Q. Mr. Seldon, you have not ascribed this accident to any particular cause in your
testimony, have you? Answer – No, sir. Q. You do not pretend to say what was the cause of the accident? Answer – No, sir. Q. You have not expressed any opinion as to the cause of this accident to the jury, have you? Answer – No, sir.
W. B. Gentry, another witness called on behalf of the Chesapeake and Ohio Railway Company, being duly sworn, testified as follows: By Mr. Browning:
Q. Capt. Gentry, in whose employ are you? Answer – C & O
Q. And you were on the 23rd of February, 1915? Answer – Yes, sir.
Q. How long have you been in the employ of the company? Answer – About 15 years.
Q. In what capacity? Answer – Five years as breaking, and the balance of the time as conductor.
Q. What was your position on the 23rd of February, 1915? Answer – Conductor.
Q. On what train? Answer – Extra 592
Q. Was gondola coal car 25227 one of the cars on your train? Answer – Yes, sir.
Q. Of how many cars did your train consist? Answer – 21 cars and a cabin car, which, included made 22.
Q. How many loaded and how many empty? Answer – 17 loaded and 5 empty.
Q. What was your starting point? Answer – Strathmore, a terminal on the James River.
Q. Which way were you going? Answer – Headed north.
Q. What time did you leave Strathmore? Answer – 1:40 P.M.
Q. Where is Strathmore? Answer – At a terminal on the C&O on the James River, about 30 miles west of Lindsay.
Q. Do you remember the accident that happened on the evening if the 23rd of February, 1915. Ans. – Yes.
Q. What stops did you make between Strathmore and the point of accident? Answer – I stopped at Lindsay, Gordonsville, Orange and Culpepper.
Q. Lindsay, Gordonsville, Orange and Culpepper? Answer – Yes, sir.
Q. Of how many men, and who were they, did your crew consist? Answer – Engineer, fireman, flagman, and Conductor.
Q. What were the duties of the brakeman and flagman when your train stopped? Answer – If other duties did not require the flagman, they both looked over the train and examined it to see if it was in running condition.
Q. Did they perform those duties on that day? Answer – Yes, sir.
Q. How do you perform those duties? Answer – The front man starts from the engine back, and the other man leaves the rear, and they meet and cross over, and the other man goes back to his place, giving the train a thorough inspection on both sides.
Q. Capt. Gentry, do you remember that evening when you approached Bristow Station? Answer – Yes, sir.
Q. Is there any signal communication between the crew occupying the caboose and the engineer? Answer – Yes, sir.
Q. What signal communication is that. Answer – He whistles for the station, and we look out, and if everything is all right and intact, together, we give him a proceed signal with the hand or lantern as the case may be whether night or day.
Q. Did the engineer signal for Bristow Station? Answer – Yes, sir.
Q. Do you remember that? Answer – Yes, sir.
Q. Did the engineer do anything else in approaching Bristow Station? Answer – He applied his air.
Q. What do you mean by applying air? Answer – Taking up the brakes.
Q. Do you mean applying the brakes? Answer – Applying the brakes, yes, sir.
Q. What is the effect of the application of the braked to the wheel? Answer – When you put the brakes on, when the train is running, you can feel the slack run up, and then we have a gauge in caboose car so you can tell when he applied his air.
Q. Is there any effect upon the iron of the wheels in the application of the brakes? Answer – Yes, sir; it forces the brake to the wheel.
Q. Is there any effect, Captain, so far as fire sparks, etc? Answer – Oh, yes, sir, it will cause sparks of fire to fly from it.
Q. Now, Captain, what was your speed in approaching Bristow Station and passing through Bristow Station on to the bridge, or the point of accident? Answer – About 20 or 25 miles an hour.
By Mr. Keith:
Q. Mr. Gentry, if any accident occurs on any train that you are in charge of as conductor, what is your duty to do in the way of report? Answer – At first I take my watch out to see what time it is, and then I go to see if anybody is hurt, or anything, and perform that duty, and see that my train is protected from the rear, and then report to the dispatcher, and order the tool car?
Q. I will ask you if you made a report of that accident to both the Southern Railway and the C&O Railway Company? Answer – Yes, sir.
Q. I hand you the telegraphic reports you made to those two companies, and ask you of those are the reports you made in this case?
Mr. Browning: We want your Honor to instruct the jury that this evidence is not evidence to
prove any fact it contains. If admissible at all, it would be admissible for the single purpose of contradicting the witness.
Mr. Mackey: It is a part of the res gestae.
The Court: I imagine if it comes in, it would be as a part of the res gestae, as any statement that
he made would not be admissible.
Mr. Mackey: I would like to question the witness, because both of these reports contain a report
that Mr. Sullivan was injured. If they come in at all, they will come in for the purpose of showing Mr. Sullivan was injured. I want to show, when he made them, whether they were a part of the res gestae
Mr. Browning: I will object to the reports so far as I have seen them, if they are not signed.
The Court: Of course he will have to show whether that report is a true statement of the facts.
The Court: Is that a true statement of the cause of accident?
Mr. Mackey: A true history of the wreck, as he reported it.
Witness: To the best of my knowledge, yes, sir.
Mr. Browning: And that it is his report.
Witness: Yes, sir, it is my report.
Mr. Keith: I will ask you to look at the report you made to the C&O Railroad Company, and state
what was the cause of accident as stated in your report?
Mr. Browning: We object. You have not inquired into when the report was made.
The Court: Just look over that; I want to ask you if that is your original report.
Mr. Mackey: He identified it as what he sent on.
Mr. Hall: It is what he sent to our telegraph operator. He made it out himself.
The Court: In his handwriting?
Mr. Hall: Yes, sir.
The Court:As I understand, this was made out at the time, and that writing is in your own
handwriting? Answer – Yes, sir.
By Mr. Keith:
Q. These telegraphic reports, as I understand, are made out in your handwriting, and handed to the telegraph operator to dispatch to both of these railway companies? Answer – Yes, sir.
Q. And these are the original reports you made out at that time? Answer – Yes, sir.
Q. Will you look at the report you made to the C&O Railway, and state what you assigned as the cause of the accident in your report? Answer – I would like to state at the time the box bolts, but I had not studied fully the cause. Those were the first things I got to, and had not thoroughly examined the car.
Q. Just read it? Answer – I made the statement “Broken box bolts.”
Q. State the cause of accident under clause “D” in your report? Answer – Box bolts broken
Q. Read on. Answer – “And let truck down.”
Q. “Box-bolt broken and let truck down?” Answer – Yes, sir.
Q. Now, under the head of “Remarks” will you read to the jury what you said further in respect to the cause of the accident?
Mr. Mackey: I think, if your Honor please, the record ought to show how soon after the accident
he made it, because the question will come up whether he could bind the road by his admission.
The Court: I asked him if he made it immediately on the occurrence of the accident, and I
understood him to say yes.
Witness: Yes, sir, soon after the accident, as soon as I could.
Mr. Mackey: That was a few minutes after the accident.
Witness: No, I don’t say a few minutes but during that night.
The Court: You are not going to offer this in evidence, are you?
Mr. Keith: These reports?
The Court: Yes, sir.
Mr. Keith: Yes, sir, offer these reports in evidence.
“Signal “9” Form 747
NOTE: Operators and Conductors must keep a supply of this Blank on hand at all times. Operators in sending this report will only give letter before each question, and then the answer, not writing question out in full. Conductors will fill out this blank and send to nearest Telegraph Office at once after accident.
SOUTHERN RAILWAY COMPANY
TELEGRAPHIC REPORT OF TRAIN ACCIDENT
From Bristow Station 2 – 23 – 1915 To W C H & G H L
(A) Accident near Bristow Station Ab Nearest M P VM 36 Ad Date 2-23, 15 Af Time 632 P.M.
(B) Train No Extra Ba Sec. No. 592 Bd Eng. Nos. 592 Bf Cond’r Gentry Bg Eng’r Tompkins
(C) Kind of accident?
(D) Apparent cause?
(E) If engine off, what part? Turned Ea In what position is it? On side
(F) Number of cars derailed? Loaded 10 Fa Empty 4 Eb Are they off badly? Turned over
(G) Cars ahead of them? 8 Ga behind them? None Gb What force at Wreck? Section Men.
In this column use P for Passenger, E for Employ, T for Trespasser, O for others
Disposition of injured Fireman and Flagman sent
Alexandria on No. 28.
“C. J. B. Standard
The Chesapeake and Ohio Railway Company.
The Chesapeake and Ohio Railway Co. of Indiana
TELEGRAPHIC REPORT OF ACCIDENT
Time filed 11:10 P. M. Time rec’d sent 11:23 P.M. 2-23-1915 To J. W. K. & P.P. C. & C. L. W.
Train No. and Section E & 592
Place of accident Bristow
Time 632 p
Cause of accident Box Bolt Broken and let truck down (R. F. Markwell fireman, G. H. Geflin flagman, V. A. Payne conductor)
Persons injured, and extent of injuries Miss Actava Proctor and J. W. Sullivan and Wife
Is main track obstructed? Both main lines blocked
Is it between switches and so that trains can pass around, or can a track be easily built around wreck? No.
How long will it take to clear track? From 6 to 8 hours.
What material will be necessary to rebuild track or bridge? Tool Car.
If engine is off track, in what position is it? Turned over
(M) How much is engine damaged? Don’t know.
(N) How many cars off track? Loaded 7; Empty 4
(Q) Can passenger be transferred comfortably around wreck? Yes.
(R) Remarks: Box Bolt Broke on box C & O 25227. Caused derailment C & O Loaded with (blank)
for Pot. Yards C& O 85496 Loaded with leather for Pot. Yards Erie 110546 empty for Pot. Yards P.L. 510811 empty Yards C& O 80213 Lbr. Pot. Yards C & O 5418 pig iron for Pot. Yards C.P. 78532 empty C H D 12 391 Lbr for Pot. Yards C G W 27936 Lbr. Pot. Yards L S M S 40052 Lbr for Pot. Yards Caboose 90329 (C D/ 12:27 A,M,)
Conductors will make a report of all accidents on this blank to the Superintendent, who will report on same blank to General Superintendent and General Manager. In transmitting, operators will use signal letters only”.
By Mr. Mackey:
Q. The rules of the C & O Railway require you to make telegraphic report of the accidents, do they not? Answer – Yes, sir.
Q. Was it by some arrangement with the Southern Railway that at the same time you made a report to that railroad? Answer – On the same night, yes, sir.
Q. It was to inform the authorities in charge of the road, your superior officers, that there had been a wreck, and the cause of it? Answer – To the best of my knowledge, yes, sir.
Q. And who all was hurt? Answer Yes, sir.
Q. In your report to the C&O Railroad, this telegraphic report, I ask you if you made this report, that J. W. Sullivan and wife were injured? Answer – I got my information from the southern Conductor. After I assisted in the accident, I took my head end and went to Manassas.
Q. In your report to the Southern Railway, you reported Mr. Sullivan was injured? Answer – Yes, sir; I got my information in regard to the passengers from the other conductor.
Q. And that report is dated 2/23/1915; isn’t that right? Yes, sir.
RE DIRECT EXAMINATION
By Mr. Browning:
Q. The accident occurred about 6:32 I believe in the undisputed testimony? Answer – Yes, sir.
Q. About what hour did you make these reports. If you can recall? Answer – To the best of my knowledge I will not say what hour, but some little time after the accident.
Q. Can you approximate it? Can you tell us what hour?
The Court: Is the hour on it?
Witness: The hour is on it at the time of the accident.
The Court: And is the hour on it at the time you made the report?
Witness: No, sir, I don’t think so.
Mr. Browning: We object to it as not a part of the res gestae.
The Court: I sustain that objection; as to Mr. Mackey I sustain it, because what he says on the
report about Mr. Sullivan is hearsay.
Mr. Mackey: We agree to the objection.
Mr. Keith: As to the whole thing?
The Court: No, sir.
Mr. Browning: We object to the report going in as a part of the res gestae. If it goes in for any
other purpose we want the court to instruct the jury that it is only y=to contradict the witness.
The Court: I think it is not a part of the res gestae, as it is too long after the accident. As to what
caused the wreck ----
Mr. Keith: He stated he made the report as a part of his official duties.