Dr. W. F. Merchant, called in rebuttal, on behalf of the plaintiff, testified as follows: By Mr. Mackey:
Q. You testified the other day, I believe, for the defense on the subject of epilepsy? Answer – Yes, sir.
Q. I am making you my witness, Doctor. I want to ask you to tell the jury what is called the aura of epilepsy? Answer – The aura of epilepsy is some symptom by which a patient knows that a fit is coming on.
Q. Now, I ask you if that aura of epilepsy does not start in the plexus of nerves in the abdomen known as the solar plexus? Answer – The aura of epilepsy comes on is so many different ways that it is hard to tell, and I don’t know.
Q. Is not that one of the places where the aura of epilepsy starts? Answer – It probably is, but I don’t know.
THE PLAINTIFF RESTS IN REBUTTAL
J. W. Puckett, called in rebuttal, on behalf of the Southern Railway Company, testified as follows: By Mr. Hall:
Q. Mr. Puckett, I want to ask you whether or not on the night or morning after this accident you examined the Southern Railway northbound track in the station premises at Bristow, including the public roadcrossing there? Answer – Yes, sir, I examined it all the way from the point of accident back beyond the station.
Q. I am asking you with reference to that portion of the track in the station grounds? Answer – Yes, sir, all the way, the station grounds included.
Q. State whether or not you found at that particular portion of the track any irregularity in surface alignment, and low joints, or sloppy joints? Answer – No, sir.
Q. State whether or not you examined the track with a view to finding such conditions? Answer – I did, to see if I could find anything wrong with it – what I knew about tracks.
Mr. Browning: Have you qualified him?
The Court: How long have you been connected with the railroad? Answer – Twenty-seven years
– nearly twenty eight.
Mr. Hall: Q. Mr. Puckett, will you state whether or not you know what C & O 25,227 is rated at
– what its capacity is, its carrying capacity, as rated in the official railway equipment register? I ask do you know that of your own knowledge?
Mr. Browning: We object to this as second hand information.
The Court: That book you have, what is it? Is that authentic?
Mr. Hall: Just like you get two newspapers ----
The Court: That is the rating by the Government – not according to this book?
Mr. Hall: I asked him of his own knowledge, does he know it, and not the source.
The Court: I over-rule it.
By Mr. Hall:
Q. Do you know what it is rated at? Answer – One hundred thousand.
Q. Do you know what is the stencil capacity? Answer – I know the day of the accident, when I examined it.
Q. What was it? Answer – One hundred and ten thousand pounds.
Q. Under your rules are you allowed to load a car ten percent in excess of the stencil capacity? Answer – Yes, sir.
Q. Then, under your rules, you would be allowed to load that car to one hundred and twenty thousand pounds? Answer – Yes, sir, that is what is stenciled on it.
Q. Do you know the stencil rating of a car as put down in the railway register? Answer – It is supposed to be the capacity of the car.
Q. You are supposed to carry ten percent in excess of that? Answer – Yes, sir.
Q. As that car was built, you would be permitted to carry one hundred and ten thousand pounds? Answer – Yes, sir.
Q. And not one hundred and twenty thousand, according to the marked capacity? Answer – No, sir.
The Court: Is there any testimony that it had that much in it?
Mr. Hall: No, sir. We offer that evidence as substantial evidence that the rating of this car’s
capacity must have been done with some purpose, and the purpose was to permit it to carry more.
Mr. Browning: We take the position that whatever the purpose was it has nothing to do with this
case, if it did not have more than one hundred and ten thousand pounds load on it at the time, which he says was safe.
Mr. Hall: I didn’t say it was safe.
Mr. Browning: But you said it was permitted.
The Court: It may be a little suspicious, but it does not prove that they have done it.
Mr. Hall: Now, Mr. Puckett, will you please state whether or not you had a conversation with Mr.
Flanagan, of the C & O Railway, on the morning after this accident? Answer – Yes, sir. Q. Will you state whether or not -----
Mr. Browning: Don’t go over it.
The Court: Mr. Puckett, didn’t you state what Mr. Flanagan said to you.
By Mr. Hall:
Q. This is an additional question. I asked Mr. Flanagan whether or not any of these Southern Railway people had asked him where these box-bolts and pieces were. Now, I want to know whether Mr. Puckett asked Mr. Flanagan anything about whether he had found this tie-bar and the bolts that were missing from that truck? Answer – Yes, sir.
Q. What did you ask him? Answer – After Mr. Hudson pointed me out to him and told him I had found a piece of one of the bolts, he came to me and asked me if I had it. I remarked to him “Yes”, and he said “Where was it at”? and I said “Laying on the end of a tie,” and I pointed to it, and I went to show it to him. When we got over there I couldn’t find it. Somebody had picked it up or misplaced it. Then we went back and walked over there to the station, and I asked him if he had seen anything of the bolt or tie-bar.
Q. What did he say? Answer – He said he had not.
Q. He testified that he had them in his pocket at the time? Answer – We were looking for them.
Q. State whether or not you were with Mr. Flanagan when he found the nit-lock and the column-bolt? Answer – We walked up to the switch and frog up there, and we found the nut-lock from off the column-bolt, or off some column-bolt. It was the nut-lock just exactly like the nut-lock on that truck.
Q. What did you do with the nut-lock? Answer – Gave it to Mr. Flanagan.
Q. What would be the cost of repairing that truck in the condition in which you saw it there, to put it in good shape? Answer – The repairs to that truck, to put it in good shape as I would, wouldcost between $10.00 and $11.00
Q. What is the truck worth? Answer - $187.50; $350.00 with $75.00 repairs.
Mr. Browning: We object to that.
Note: The objection over-ruled and exception noted by the Chesapeake and Ohio Railway
By Mr. Hall:
Q. As an expert, familiar with railway equipment, etc, assuming that there was a rough track for a distance of half mile south of Bristow to the point of accident, what effect, if any, would such a rough track, in your opinion, have upon a tie-bar in perfectly good condition on a truck securely fastened by box-bolts and arch-bolts? Answer – everything in good shape.
Q. Everything in good shape? Answer – I do not think it would have any.
Q. Passing over a track approximately half a mile in length? Answer – No, sir.
Q. What do you mean by “no, sir?” Answer – I said I didn’t think it would have any.
introduced certain portions of a contract between the two companies; we would like to have it understood with the court that we want to look over that contract, as though we had not rested.
Mr. Mackey: We have no objection to the C & O introducing any portion of it as showing the
relation between these two roads.
By Mr. Browning:
Q. You say the rating, of your own knowledge, of that car 25,227 is one hundred thousand pounds? Answer – Yes, sir, that is the rating of it in the equipment guide.
. You never tested that car, or found out its weight by experience – its capacity by experience? Answer – No, sir.
Q. How did you get that rating? Answer – I said according to what the equipment guide shows. The equipment guide shows it one hundred thousand pounds capacity.
Q. What equipment guide? Answer – The regular equipment guide; it shows all railroads, the length and capacity and height.
Q. You mean you have figured it out? Answer – No, sir, the equipment guide shows it.
Q. What equipment guide? Answer – Mr. Baumgardner has the equipment guide for that month.
The Court: Do you mean you get it from that book? Answer – Yes, sir.
By Mr. Browning:
Q. You testified, I believe, that whatever its stencil capacity was, you allowed – I will withdraw that question. Where did you find the nut-lock.
Q. Up near Bristow Station, somewhere around the switch point or frog at the station.
Q. And you gave it to Mr. Flanagan, you say? Answer – Yes, sir.
Q. Were you in company with Mr. Flanagan when you found it? Answer – Yes, sir.
Q. Do you know who saw it first? Answer – No, sir, I do not.
Q. Who picked it up? Answer – As well as I remember I did.
Q. Are you positive of that? Answer – I say as well as I remember.
Q. But you are positive of that recollection? Answer – If I had been positive I would not have said “as well as I remember.” I would not like to say which picked it up. We were both together, and, as well as I remember, I picked it up, and said “Here is the nut-lock off the column-bolt.
Q. You are not positive? Answer – I am not positive whether he picked it up, or whether I did, but I am positive we were both together when it was found.
Q. Do mean that rough track has no effect upon the equipment passing over it? Answer – I do not think it would have the effect on it to break that bar if the truck was in good condition.
Q. You confine that with reference to this particular instance or this particular car?
Mr. Keith: It is understood that the territory is limited to half a mile beyond Bristow. Answer –
There were other cars in that train that passed over, and it did not break.
Mr. Browning: Upon the fact that it did not break others, you are basing your opinion? Answer –
The condition of that track was not such that it would break that truck if it was in proper shape. In fact, I didn’t see anything wrong with the track. Q. You differ with the other experts who say it was? Answer – I would say it would not break if it was in good condition.
Mr. Hall: We do not know of any evidence where they say it would break it. They testified it
might break it, or would tend to break it.
Mr. Browning: Would not that track and its condition have a tendency to break the tie-bar?
Answer – No, sir.
W. E. Midkiff, called in rebuttal, on behalf of the Southern Railway Company, testified as follows: By Mr. Hall:
Q. Mr. Midkiff, I believe you testified generally about the condition of the track of the Southern Railway; I want to ask you whether or not, shortly after that accident, on the day after, to be exact, you examined the part of the track within the station grounds at Bristow, including the roadcrossing there? If you did examine it, what was its condition? Answer – I examined it that morning after, and it was in good condition.
Q. State whether or not you found any low joint or sloppy joint? Answer – I did not. There were not any low joints or sloppy joints in that territory.
Q. How about the alignment? Answer – It was good.
Q. State whether or not there were any cross – ties in there or not more than three inches face? Answer – There were none in there as small as that.
Q. Did you see the smallest tie you had in there? Answer – There were not any in there less than five and a half inches.
Q. There has been reference here, from time to time, of the track being repaired north of the station in ten days or two weeks after the accident; will you state whether or not any part of that track, from a point south of Bristow half mile to the point of accident, was repaired as the result of the accident? Answer – There was not. There was not any work done except a little dressing down next to the bridge; there was about a car load of ballast dumped which was dressed in. The ballast had been distributed, but had not been lined up. That was dressed after the accident, and that is all the work.
Q. Is that what you call dressing it, smoothing it? Answer – Yes, sir. So far as the dressing is concerned, it has not anything to do with the track, only appearance, and it holds under the ties. It was filled, but the ballast had not been shaped up according to our standard.
Q. Will you state when the truck north of Bristow Station up to the point of accident, had been ballasted and resurfaced? Answer – That work had been done in the month of February, just before the accident. Mr. Hyde had surfaced from the roadcrossing north of the station down to the bridge.
Q. That is at the point of accident? Answer – At the point of accident the track had been surfaced late in the fall, late in November if I remember. Nolan, track foreman, had worked there, and put in new ballast and raised the track four or five inches. They left off a few weeks, and Mr. Hyde took up the work, and ran from the roadcrossing to the bridge.
Q. Mr. Nolan surfaced the track north of Bristow? Answer – Just south of the station – from the coal house he worked through the station, and put in new ties and surfaced the track.
Q. And on to the point or accident? Answer – No.
The Court: Commencing at the bridge, and going to the station and south.
Witness: Mr. Nolan did his work on the north track from beyond the station. Q. Down to the
Broad Run Bridge? Answer – No, he worked down to the roadcrossing, and Mr. Hyde’s section force worked on to the bridge.
By Mr. Hall:
Q. From about this toilet, a little bit south of it; he surfaced on down to the roadcrossing right about here (indicating), just past the station. He surfaced almost to the switch. Now, Mr. Hyde come there in February, and probably he did some work in January, and he surfaced on down to Broad Run Bridge. That worked the track out on new ballast all the way down.
Mr. Browning: I want to know if we have in the record the starting point?
Mr. Hall: A few feet south -----
Witness: Just about the toilet. Mr. Hyde worked from the point marked “toilet” on the hill south
towards Nokesville. Then an extra gang worked on.
Q. How far down? Answer – All the way practically to Gaither’s quarry. Gaither’s quarry is about a mile and a half south of Bristow.
Q. Had that track been put in shape from a distance of one half mile south of Bristow Station? Answer – Yes, sir.
Q. Up to Bristow Station, within the previous year? Answer – Yes, sir, in 1914 and 1915 down to the bridge.
Q. Now, take the part of the track from Bristow Station up to the point of accident, when had that been re-surfaced and ballasted? Answer – That part of the track north of the bridge – there was some work done on it and new switch ties put in here (indicating)
Q. They had been put in here? Answer – At the coal trestle.
Q. North of Broad Run? Answer – And there had been some from the switch track on north. That track there was not overhauled because it was good track.
Q. The track at the point of accident had been overhauled within a year prior to the accident? Answer – Yes, sir.
Q. When was the last time you rode over this northbound track before the accident? Answer – I went up there, I think, the third evening before that.
Q. How did that track ride when you went over it? Answer – It rode all right. We had not had any bad track, and had not had any trouble with that track since I have been there.
Q. State the best place on a train to discover rough track? Answer – You can discover rough track by riding on the engine. That is the best place to find any irregularity, but you can find it on the cars or train; a track man can tell it.
Q. State whether or not it is the duty of engineers of the Southern Railway to report rough track when they ride over it? Answer – Yes, sir, instructions are given them, and also on the time card.
Q. What is the effect of hard rain on the track and the effect of thawing and freezing with respect to producing low joints. Answer – It has the tendency to give trouble if it is not in good shape, but that piece of track, the way it was ballasted, was beyond any trouble of that kind.
By Mr. Browning:
Q. Mr. Midkiff, you say the rain would make no difference where the track was all right? Answer – Not on that piece of track, because it was well ballasted and in good shape.
Q. Now, you say that rain on that piece of track between February 23rd and the 3rd of March did make no difference? Answer – That track was put up – that piece of track was put up by the station about a year and nine months, and we have not done any work on that track of any note beyond, and it is in good condition.
Q. Then it was in the same condition on the 3rd of March as on the 23rd of February? Answer – It could not have went any.
Q. It was in good condition, was it? Answer – It was in good condition March 3rd.
Q. And in the same condition that it was on the 23rd of February? Answer – Yes, sir.
Q .How much track have you under your supervision? Answer – I have 340 miles, not including the double track. I have that many line miles of track.
Q. Including the double track, how many miles have you in trackage? Answer – We have something like 435 or 440 miles.
Q. Are you testifying from your recollection alone as to the condition of this half mile of track 16 months ago? Answer – Yes, sir, and what I know about tracks.
Q. As to this particular track, are you testifying from general knowledge of the track along there, or do you recollect in your mind that, that particular piece of track, at that time, was in good condition? Answer – Yes, sir, it was in good condition.
Q. You remember that, and you testifying from your memory? Answer – From my memory and what I know about it.
Q. From what experience. Answer – I know the condition of all the track on my division. I should know it and I am bound to know it.
Q. Do you mean you can tell me the condition of any half mile track on that 400 miles? Answer – Yes, sir.
Q. Can you tell me, from your memory, what was the condition of any half mile of that track on the 23rd of February? Answer – Yes, sir, but I can tell you more particularly about that piece as we had the accident, and it had been inspected by the supervisor and section foreman and myself.
Q. Before the accident or after? Answer – After the accident and before the accident, as far as that is concerned.
P. Nolan, called in rebuttal, on behalf of the Southern Railway Company, being duly sworn, testified as follows: By Mr. Hall:
Q. What is your occupation? Answer – Track foreman.
Q. For what company? Answer – Southern
Q. Were you foreman in February, 1915? Answer – Yes, sir.
Q. What is your section, or were you assigned to any section. Answer – Extra gang.
Q. State whether or not you recollect re-surfacing and ballasting and going over a piece of track about Bristow in 1915? Answer – Yes, sir, but not in 1915, in 1914.
Q. What month, do you recollect? Answer – No, sir, but some time in the fall.
Q. Will you look at this map which I have; tell the jury what part of the track – let me get you straight; this is south towards Atlanta, and this is north.
Note: The map is explained to the witness.
Answer – I commenced about the point of that switch at the crossover, and worked down the northbound track to the heel of this stub switch north of the public road.
Q. Did you go any further north? Answer – No, sir. It was right to the other switch, where the long ties come in.
Q. In the depot grounds particularly? Answer – Yes, sir, new ties and new ballast.
Q. Do you recollect the condition of the roadcrossing in the station grounds? Answer – Yes, sir, I put new ties in the road-crossing.
Q. And everything new under it? Answer – Yes, sir.
By Mr. Brown:
Q. When was this? Answer – In 1914.
Q. What part? Answer – The latter part of the year.
Q. Do you know what month? Answer – No, sir, I d o not.
Q. The latter part of the year 1914? Answer – Yes, sir.
Q. How do you know – can you tell me what season it was in? Answer – It was along late in the fall – getting along cold weather.
Q. How do you remember from that time to this exactly? Answer – Because I was with the construction people building side tracks, and we finished up that along about the first of October.
Q. Was that the last piece you did? Answer – No, sir. I went back on that after I got through with the construction people.
Q. What is the length of that piece of work you did? Answer – I don’t know.
Q. Have you any estimate? Answer – No, sir.
Q. As much as 100 yards? Answer – I expect it is.
Q. About 100 yards? Answer – Yes, sir.
Q. How many days were you working there? Answer – Indeed I don’t remember, but two or three days. I will not say positively.
Q. How many men did you have? Answer – I couldn’t say that. I suppose it varies. Sometimes we have a big force, and sometimes a small one.
Q. You don’t remember how many you had at that time? Answer – No, sir.
Q. About how many – four of five? Answer – More than that; maybe twelve, or something of that kind.
Q. Do you know the names of the men who worked for you? Answer – No.
Q. Do you know the name of a single one? Answer – No, sir the men are going and coming.
Q. You don’t remember the name of a single man who helped put in that 100 yards? Answer – No, sir.
Q. You don’t know exactly when it was done? Answer – I know it was done the latter part of 1914.
C. A. Cherot, called on behalf of the Southern Railway Company, in rebuttal, being duly sworn, testified as follows: By Mr. Hall:
Q. What is your occupation? Answer – Locomotive engineer.
Q. For what company? Answer – Southern Railway.
How long have you been engineer? Answer – On the Southern Railway.
Q. Yes. Answer – Fourteen years with the Southern.
Q. How long before that? Answer – Six years.
Q. State whether or not it is a part of your duty to look out for rough track? Answer – Yes, sir.
Q. Explain to the jury how you are required to do that?
Mr. Browning: Your Honor, is that rebuttal?
Mr. Hall: We have not shown a single transportation man in chief riding over that track.
The Court: I over-rule the objection.
Note: An exception is noted by counsel for the Chesapeake & Ohio Railway Company.
By Mr. Hall:
Q. Tell me when was the last time before the accident you rode over that track, and on what train? Answer – I rode over that track between twelve and one o’clock the day of the accident on an extra. I was running train 72 out of Monroe, but it had been annulled as extra.
Q. A vegetable train? Answer – Yes, sir.
Q. You ran on the northbound track between Calverton and Manassas?