Q. What was the condition of the track from a point half mile south of Bristow to the point half mile north of Bristow, as you passed it that day. Answer – I did not see any difference in that track from any other all the way from Orange.
Q. State whether or not you noticed my roughness or unevenness in passing that track? Answer – No, sir.
Q. Do you recollect about what speed you passed over that track at Bristow that day? Answer – As near as I can remember about 35 miles an hour.
By Mr. Browning:
Q. Did you stop at Bristow that day? Answer – No.
Q. Did you give signal at Bristow that day, and your rear brakemen give it to you? Answer – Yes, sir.
Q. Did you give the signal at Bristow that day, and your rear brakemen give it to you? Answer – Yes, sir.
Q. Did you take up any of your attention? Answer – Nothing more than to turn my head.
Q. As a matter of fact, in approaching stations, where there is a crossing there, and in crossing, is not your attention pretty well taken up in looking out for the station and the crossing, and in giving signals? Answer – Yes, sir, we always look out, but we receive the signal from the train crew some distance from the station. We blow for the station probably half mile away, and look back for the signal from the train crew.
Q. As a matter of fact, in approaching a station, the attention of the engineer is more engrossed that other portion of the track? Answer – Yes, sir, we are looking out for persons on the track, or emergency to stop.
Q. And where there is a road station crossing at the station, you give more attention to it? Answer – At a point like this I don’t know that we give unusual attention. We do not reduce speed, but keep on going.
Q. From the very fact that you do not reduce speed, don’t you keep a more careful lookout ahead, in going through stations grounds and in approaching grade crossings? Answer – I don’t know that I could give any more careful attention. I try and give the best attention possible all the way over the road.
Q. Especially to looking out ahead for those things? Answer – Yes, sir.
Q. How much speed are you allowed to make? Answer – On a perishable train we are allowed to make 40 miles an hour.
RE DIRECT EXAMINATION
By Mr. Hall:
Q. How many cars did you have in your train, do you recollect? Answer – As near as I remember between 35 and 40
Q. Were any of the tie-bars or arch-bars in those cars broken when you passed over the station ground at Bristow? Answer – If there were, I don’t know anything about it.
Q. There was no report made about it? Answer – No, sir.
W. C. Hudson, in rebuttal, called on behalf of the Southern Railway Company, being duly sworn, testified as follows: By Mr. Hall:
Q. Mr. Hudson, state your occupation and position with the Southern Railway? Answer – Superintendent of Washington Division.
Q. State whether or not it is a part of your duty to be familiar with the conditions of the track between Orange and Alexandria? Answer – Yes, sir, it is.
Q. Do you recollect an accident down at Bristow about February 1915 Answer – Yes, sir.
Q. Were you superintendent then? Answer – Yes, sir.
Q. Do you recollect riding over that track about a half mile south of Bristow to half a mile north of Bristow during that period or about that time? Answer – I usually ride over that track about one to two times a week, but I don’t remember the last time before the accident that I was over that track.
Q. Did you go that accident? Answer – Yes, sir.
Q. State whether or not you made an examination of that track? Answer – I made an examination from the point of the accident up to the station.
Q. State what, if anything, you found the matter with the track? Answer – I found wrong with it at all. I considered it in first class condition.
Q. Are you the person to whom complaint should be made as to the condition of that track by the C & O Railway? Answer – Yes, sir.
Q. State whether or not any complaints were made of that track prior or subsequent to the accident? Answer – No, sir, I have never received a complaint from the C & O road about track up to that time or since that time.
Q. did you ever have any reports made by any of your people, your conductors or engineers, of the bad condition of the track?
Mr. Browning: Object to as heresay.
The Court: I will sustain that objection.
Mr. Hall: I will withdraw that question.
Mr. Hall: Do you recollect of having a talk with Mr. Flanagan, master mechanic of the C & O
Railway, the day after that accident about what the cause of the accident was?
Mr. Browning: Did you lay the foundation for it?
The Court: I think he did ask your witness, Mr. Flanagan, what talk he had with Mr. Hudson. If
you did not, you can recall the man now. My recollection is that he asked Mr. Flanagan about a conversation he had with Mr. Hudson, and he said they looked at two pieces together.
Mr. Hall: I want to ask Mr. Hudson if he ever told him that the box-bolts were at such a place. Q
Did you ever tell Mr. Flanagan any of you people had found the box-bolts, and where they were? Answer –I told Mr. Flanagan we had found the top of part of a bolt, and that was all.
By Mr. Browning:
Q. Mr. Hudson, this accident took place on the 23rdof February, 1915, didn’t it. Answer – I think the 23rd
Q. And you stated that no report was made to you before that time by any C & O officer as to the condition of the track? Answer – No, sir.
Q. Mr. Hudson, when did you become superintend of the Southern Railway? Answer – June 1st 1914.
Q. When did you assume the duties of that position? Answer – On that date.
Q. You had not any connection with the southern Railway north of the Carolinas until that time, had you? Answer – Not in an official capacity, no sir.
Q. When was it that you examined the track with reference to the accident? Answer – Sometime after reaching the accident. I could not tell you the exact time.
Q. About how long do you think? Answer – My recollection is when I got to the accident I went to this switch and saw that something had turned the stock rail out.
Q. About how long after the accident was that? Answer – Does anything here show when the accident happened? I think it was about 3.:30 o’clock.
Q. 6.32. Answer – About nine and a half hours after the accident.
Q. That is when I walked to the depot.
Q. I had reference to the time you examined the track? Answer – I can’t say, but I should say eight or nine o’clock in the morning.
Q. After the accident? Answer – Yes.
Q. And you say the track was good? Answer – Yes, sir.
Q. You saw nothing the matter with it? Answer – No, sir.
Q. Now, it has been testified that there was a hard rain that night, continuing the next morning; if what you say is correct, that rain had no effect on the track, did it? Answer – It had not up to that time.
Note: It is admitted that the accident occurred near Bristow, in the County of Prince William,
Mr. Hall:I move the court, on behalf of the Southern Railway Company, to exclude all of the
testimony given by Dr. A. B. Hooe so far as it involves his opinion that the present condition of the plaintiff is the result of injuries sustained in the accident of which he complains, on the ground, in the first place, he did not qualify as an expert on nervous diseases; in the second place, the question was not properly propounded to him, and his opinion was expressed without having had the benefit not only of all the evidence but of only a part of the plaintiff’s evidence, and without the cross examination of the plaintiff, and without a great deal of the other medical testimony in the case.
Mr. Browning: We concur in his motion.
Mr. Mackey: As to that part of Dr. Hooe’s testimony, we consent that it be excluded, so that there
will not be any exception on that.
Mr. Hall: Then we understand that all of Dr. Hooe’s testimony is stricken out which connects the
plaintiff’s injuries with the Southern Railway?
Mr. Mackey: Yes.
Mr. Hall: Our position is this, that if this gentleman’s condition is established beyond a per
adventure of a doubt to be epilepsy, and if he establishes that he was a passenger on Southern Railway train and was injured, unless there is some evidence in this case connecting that condition with that accident, the jury cannot find a verdict for the plaintiff, and that connection can only be found legally by a hypothetical question properly framed, and there is no such hypothetical question in this record.
Mr. Mackey: We showed his condition of health before the accident, and followed it up.
The Court: I understand that so much of Dr. A. B. Hooe’s testimony as undertakes to say that the
physical condition of the plaintiff, to wit: epilepsy, is due to the accident at Bristow, that so much of that is stricken out.
The Court: Whatever he said about it, and his opinion that the epilepsy is due to the accident, is
Mr. Mackey: Yes, sir; but that it could be due to that is in. All that would remain in would be his
opinion that it could come from a traumatism or a blow. As to whether it came from the accident, in the nature of things he could not know it.
Counsel for Southern Railway Company moved the court to strike out all the evidence as to the condition of the track from a point five hundred feet north of Bristow Station to the point of accident; which motion the court overruled, to which action of the court counsel for the Southern Railway Company thereupon excepted.
During the argument of Mr. Hall, counsel for Southern Railway Company, he stated, “If your Honor please, I wish the record to show that I move to strike from the testimony, and ask the jury do not consider the last sentence of Dr. Bacon’s answer to interrogatory No. 5 on the ground that his diagnosis as to the cause of this injury was not based in a hypothetical question, nor was it based upon the evidence as produced in this case.”