Q. Did you have any notice or knowledge that Mr. McDonald with engine 832 was going to follow you on that route? A. No sir.
Q. What was your intention with respect to side tracking that engine, after you discovered it would not generate steam? A. I had none.
Q. Did the conductor have any? A. He might have.
Q. Didn’t he direct you that he would side track the train? A. Yes sir.
Mr. Moore: I object to what the conductor said to him.
Q. Did he give you such direction Mr. Cullen? A. He got up on the engine and said “We will take her over to Haymarket, there is an operating station over there, and put her in a side track.
By the Court
Q. Was that a casual remark or an order to you? A. Conductor said so.
Q. Was that a casual remark made by the Conductor to you or was it a direction? A. The conductor made that remark to me.
Q. Did you understand that he directed you to do that or just made that remark? A. He may have meant to do it, he says “We will take her over to Haymarket and go into side track, there is an operating station there.
Q. When you arrived at Haymarket would you have taken her into a side track? A. I couldn’t say sir; that was the conductor’s instructions to do that.
Mr. Moore: I object to the testimony of the witness as to any conversation between himself and
the conductor, as effecting the Company, as irrelevant and improper.
Mr. Burke: If your Honor please, the conductor testified it was his intention to take this engine in
and I am just simply corroborating the testimony of the conductor by the testimony of Mr. Cullen.
Mr. Moore: The Conductor testified and it ought to end there.
The Court: That’s true, but still he can corroborate his witness by competent testimony. The only
hesitancy I have is whether the conductor gave him that direction, or was it a casual remark. Now the effect of it would be for the jury to consider. I want to find out from the witness, - do you understand that he directed you to do that.
The Witness: He just said so. I didn’t know whether he was going to do it or not.
The Court: He just made that remark to you at the time you refer to.
The Witness: Yes sir.
The Court: Was the engine in motion then or standing still?
The Witness: Standing still
The Court: What were you doing.
The Witness: Trying to get up steam at the time sir.
By Mr. Burke
Q. Did you have sufficient coal to generate the steam. A. Yes sir, with an average run of coal.
Q. Had plenty of water in the engine? A. Plenty of water.
Q. Plenty of coal? A. Yes sir.
Q. Why did you report the engine? A. She wasn’t steaming good.
Q. Why? A. I don’t know why. I couldn’t see anything to prevent her from steaming.
Q. How many days had she been in that condition before you reported her at Fairfax? A. I think two days I had her that I remember.
Q. Do you know whether or not she could steam before you got it?
Mr. Moore: of your own knowledge.
Ans. Before that she steamed pretty good when I had her.
The Court: Do you know of your own knowledge whether or not that engine had been reported to
the Company as defective in steaming prior to the 14th of November
The Witness: No sir.
Q. Mr. Cullen, you said there was an operating station at Haymarket? A. Yes sir.
Q. Were there any telegraph operators operating their telegraphic officers along the line of that railroad at that time at night? A. No. sir
Q. From Manassas to Strasburg? A. No sir. There were operating stations, but I don’t think they were open at night.
By Mr. Moore
Q. Mr. Cullen how fast were you going when 832 collided with your rear? A. I was making 12 miles per hour or better.
Q. Now when you stopped at Wellington and was getting up steam there, didn’t you see Driver, the flagman, on the caboose steps A. No sir, that was at the other place.
Q. Where was that? A. At the top of the hill at Wellington.
Q. When you stopped for eight or ten minutes? A. Yes sir.
Q. You saw him on the caboose steps? A. Yes sir.
Q. Then he was not back protecting the rear of the train? A. No sir.
Q. He ought to have been back there, under the rules? A. Yes sir.
Q. It was his duty to go back when you made that stop, and protect that train. A. Yes Sir
The Court: I would rule out any evidence as to his duty contrary to the rules.
Q. Mr. Cullen, do you know why Driver didn’t go back in pursuance of his duty and protect the rear of that train? A. No sir
Q. He was the flagman and rear brakeman? A. Yes sir.
Q. You didn’t blow him back? A. No sir.
Q. And you didn’t blow him in? A. I went to blow him in and he gave me a signal immediately.
Q. You found out he was not out when you went to blow him in. A. Yes sir.
Q. Gave you a signal the moment you blew him in, and that satisfied you that he did not go out? A. Yes sir.
The Court: Of course, he can’t testify as to arguments. He can only testify as to the facts, but he
has a right to ask him about his knowledge of the situation.
Mr. Moore: I think I am strictly within my limits.
The Court: On X-examination that is universally done.
Mr. Burke: If I am to have the same opportunity when it comes my turn.
The Court: So far as I know I am going to require both to stay within the rules.
Mr. Moore: If I make a mistake I want to be called down.
Q. Mr. Cullen you say you failed to give him a signal directing him to go back and protect the train either at Wellington or the point west of Wellington, is that correct. A. Yes sir.
Q. It was your duty to give him that signal? A. Yes sir.
Q. Will you please see whether rules 502, 538 and 14, sections marked “C, D and E” were in force at the time of this accident, the first one is 502, under the head of “Enginemen,” in the Rule Book shown Mr. Wattell, then No. 538, 502 and 508? A. 538 sir? Yes sir.
Mr. Moore: I offer these rules in evidence, 502, 538 and 14.
The Court: What do they refer to?
Mr. Moore: Duties of enginemen and the signals.
Mr. Burke: We object to the introduction of the rules at this time, in as much as they are part of
the case of the defendant; that the defendant now is on the cross examination. He can show by this witness that these were the rules of the Company and then if counsel for the defendant desires to offer these rules in evidence when it comes to his turn, then to read them to the jury subject to the objection and action of the court thereon, and not introduce them now.
The Court: I admit the rules subject to the exception.
Mr. Moore reads the rules, as follows: They (enginemen) are jointly responsible with the conductor for the movement and
protection of their trains in accordance with the Rules, they are individually responsible for the observance of rules relative to their duties, and must decline to obey any order by the conductor or any other person which involves the violation of such rules, or peril to persons or property.
When an engineman is unable to proceed with his train on account of a danger signal, an obstruction, a defect of track, or a failure of his engine, so that it becomes necessary that the rear of the train be protected by a flagman, he must immediately give the signal prescribed by Rule 14 “c”; or when he fails to make his running time to an extent which involves any risk of being overtaken by a following train, he must immediately show the train sufficiently to admit of the flagman getting off and must then give the signal prescribed by Rule 14 “c”.
Engine Steam Whistle Signals.
(c) – 000 Flagman go back and protect rear of train
(d) - - - - Flagman return from West or South
(e) - - - - - Flagman return from East or North
Q. Now as I understand Mr. Cullen, you can correct me, if I am mistaken, neither at Wellington nor at the point west, did you give any signal for this flagman to go back and protect the rear of the train. A. No sir.
Q. At Wellington you did not sound any signal for the flagman to come in? A. Yes sir
Q. Where did you find him standing? Gave you the signal from the caboose? A. Yes sir.
Q. As soon as you signaled for the flagman to come in you found that he was in the caboose for he gave you that signal from the caboose? A. Yes sir.
Mr. Burke: I object to that way of putting the question. How did this witness know he was in the
caboose? You didn’t hear him Mr. Cullen?
Mr. Moore: Didn’t you see him on the caboose steps?
The Witness: I couldn’t see him in the distance at night.
The Court: Was it the duty of the flagman to give the proceed signal?
The Witness: Yes sir.
Q. If he had been out in the rear of the train and you gave the signal you would have to wait for him to get to the caboose, but as a matter of fact you found as soon as you gave the signal he was in the caboose, and signaled to you from the caboose to start ahead? A. Yes sir.
Q. That was at Wellington? A. Above Wellington about a mile and a half.
Q. At Wellington you did not give him any signal to go back or come in? A. No sir, I don’t believe I did.
Q. You don’t know whether he went back or not. A. I know he did not.
Mr. Burke: I object to that, because, what has that got to do with the accident which happened
one & ½ miles beyond.
Mr. Moore: We have got to prove of what relation. It was his duty to have torpedoed the track
and left torpedoes there, and we are going to show that no torpedoes were left anywhere.
The Court: He has a right to show that.
Mr. Burke: I will agree with him that there were not any left anywhere. Can’t we save time.
Mr. Moore: No sir, we can’t save any time in that way. I am much obliged to my friend of course.
Q. Now Mr. Cullen you have said at Wellington you know that Mr. Driver did not go back to protect the rear of his train while you were waiting there, how do you know it? A. O seen his lamps back there.
Q. If he had gone back to protect the rear of the train he would have taken them with him? A. Yes sir.
Q. Was it his duty to have taken his lamps? A. Yes sir.
Mr. Moore: I have modified my question and asked him if the rules required it and he said “Yes”
Q. If that train had been properly protected by the flagman an accident would not have occurred would it?
The Court: He was in charge of one of these trains. He has a right to find out all about the
operation of that train.
Answer – They might have run by the flagman.
The Court: I don’t think that is a proper question. I think about all you can do is to show what
they did do. I just strike that out. You can show what they did, and what it was their duty to do.
Q. Under the rules, flagmen going back to protect the train would have taken his lantern and used that as a signal? A. Yes sir.
Q. And would also have taken his torpedoes and used them? A. Yes sir.
Q. Mr. Cullen you were waiting for about ten minutes at the point West of Wellington, under the rules it was the duty of the flagman to go how far back so to protect the rear of his train? A. Three-quarters of a mile.
Q. How many? A. Three –quarters
Q. Now as an engineer, you have had long experience as an engineer haven’t you? A. Yes sir.
Q. Wouldn’t there have been ample opportunity to stop a train going twenty or thirty miles an hour or ¾ of a mile? A. Yes sir.
By The Court:
Q. When they stopped just before the collision occurred had you given the signal then to call in the brakeman? A. Yes sir. Just started, when he gave me the signal he was on the caboose.
Q. That was just immediately prior to the collision? A. Yes sir.
Q. How did you know it was the brakeman you say? A. From his lamp and the signal.
Q. What was the signal he gave with the lantern? A. Raised and lowered it.
Q. Was that the signal to go ahead? A. Yes sir.
Q. How long had that been given before the other train ran into you? A. Couple or three minutes anyway.
Q. You had the signal for two or three minutes, had you moved? A. Yes sir, three quarters of a mile.
Q. Your train was in motion when the collision occurred? A. Yes sir.
By Mr. Burke
Q. You say that according to these rules here that the flagman is to go back three-quarters of a mile to the rear of the train to flag the pursuing train? A. Yes sir, that’s what the rules call for.
Q. Then when you call him back, when you are ready to start, when your steam got up sufficiently to make the start, then you would blow your whistle for him to come in to the rear of the train? A. Yes sir.
Q. How long would you wait for him to get back? A. Wait until he came in.
Q. Three quarters of a mile? A. He wouldn’t be that far back.
Q. He would go back three-quarters of a mile wouldn’t he. A. Yes sir.
Q. Do you know how long it would take him to get back to your train? A. No sir.
Q. To flag the pursuing train ? A. No sir.
Q. Now then when you had a train with an engine like this stopped within a half a mile of the last stopping place where you had to stop to get up steam, Did he then he had to go back three-quarters of a mile at Wellington? A. Yes sir.
Q. Then you would have to call him in three-quarters of a mile from Wellington, then when you got one-half mile, he would have to go three-quarters of a mile, that would put him beyond Wellington? A. No sir, I was a mile from Wellington, didn’t I say.
Q. I beg your pardon. I mixed you up Mr. Cullen. He would have to go back 2/4 of a mile then for this second stop, that would carry him back nearly to Wellington? A. He would be a mile ahead yet wouldn’t he.
Q. Then if you had to stop again half a mile further on, he would have to go back then ¾ of a mile, and you would have to wait for him to go back and come in each time? A. Yes sir.
Q. Do you think you would ever have gotten to Haymarket that night proceeding that way? A. Wouldn’t he be a mile ahead every time he came in?
Q. He would leave you there and get a mile behind? A. He would be a mile ahead every time.
Q. He would double on himself every time. Every time you went a mile he would go a mile and a half; every time you got a mile he would travel a mile and a half. How long would you have to stop to let him go three quarters of a mile and let him return ¾ of a mile? A. I couldn’t say.
Q. Not counting for when he would get somewhat fatigued by this pedestrian exercise, - not allowing for that? A. No sir.
Q. Mr. Cullen, do you remember the time of that accident, when it took place exactly? A. I believe about 5:12, I think.
Juror: Mr. Cullen you said you were going at the rate of 12 miles an hour when the trains struck?
Witness: Just about.
Juror: You admitted it had been three minutes since you got the signal, can you get up steam to
go 12 miles an hour in three minutes with a defective engine?
Witness: Yes sir.
By Mr. Moore
Q. Mr. Cullen, you have stated you could not see anything wrong with the engine except it couldn’t make steam, and you made the report at Fairfax? A. Yes sir.
Q. And you were ordered to take the engine to Strasburg? A. Yes sir.
Q. One of the shops is there is it? A. No sir.
Q. Why were you ordered to take it to Strasburg? A. To Strasburg.
Q. I say why were you ordered to take it to Strasburg? A. They often send men up there to look after the engines – machinists.
Q. Now Mr. Cullen you say there wasn’t anything wrong so far as you could see, wrong with the engine, do you know why it did not make steam? A. No sir.
Q. Are there not a great many reasons why engines do not make steam? A. There certainly are.
Q. Quality of the coal has something to do with it? A. Yes sir.
Q. State of the weather has something to do with it? A. A little sometimes.
Q. What other causes will operate? A. Flues get stopped up, wood get in the boiler.
Q. What other causes? A. Fire get dirty.
Q. It is quite a common thing for a railroad locomotive to falter in getting up steam? A. Certainly is.
Q. It is quite a frequent thing with good engines? A. Common occurrences every day.
Q. How long did you say you had been an engineer? A. Nine years.
By Mr. Burke
Q. You say that this failure to get up steam occurs every day, does that occur from the fact that the fires have not been started in a proper way, or from a defect in the engine? A. Every day.
Q. You said it occurred every day? A. the fire might be dirty, - not cleaned properly.
Q. Do you send an engine to the machine shop on account of the fire getting dirty? A. No sir.
Q. You do that yourselves on the train? A. Sometimes they have hostlers on the road to do it at different points.
Q. You would not report an engine for some little trivial matter that could be remedied, you would not report an engine to the Master Mechanic for that? A. No sir, if she was steaming good I would not report her.
Mr. Burke: To assist in this matter we would like to have it agreed that we can offer such rules in
evidence as we desire on our side, and then when the defendant comes to his case, he can offer such as they desire.
The Court: That is agreeable to the court, if it is agreeable to both parties.
Mr. Moore: It is perfectly agreeable. It is agreed that the book heretofore used is the Book of
Rules of Southern Railway Company.
By the Court
Q. Mr. Cullen what is the course or the action on the part of the Company when you report an engine not steaming properly? A. Generally take her in and clean out her flues, and wash out her boilers.
Q. Now for instance you report at Fairfax, what would be the ordinary course, where they would carry her to? A. Harrisonburg or Alexandria
Q. It is their ordinary course to carry them to Strasburg? A. Yes sir.
Q. Why did you say Harrisonburg or Alexandria? A. Either Harrisonburg or Alexandria, that they can was out boilers.
Q. Can they do it at Strasburg? A. No sir.
Q. What was the purpose of carrying it to Strasburg? A. On the way to Harrisonburg I suppose. That was our terminal and then some one else would take it to Harrisonburg.
Q. Your orders would not go any further than Strasburg. A. No sir, somebody else would take it on to Harrisonburg they changed crews there.
By Mr. Burke
Q. Are there any work shops at Harrisonburg? A. Yes sir, small shops there.
Q. Engine shops? A. Yes sir.
Q. For the repairing of engines? A. Yes sir.
Q. Were those shops in active operation at the time? A. Yes sir.
Q. What is the distance from Fairfax Station, where you reported this engine, to Alexandria? A. Twenty miles, I should think, fifteen or twenty.
Q. How far was it from there to Harrisonburg, from Fairfax to Harrisonburg? A. About 130 miles
Q. Are you sufficiently acquainted with the shops in Alexandria to know whether or not they are the general shops of the Company? A. For this division.
Q. Including the Manassas Branch you mean? A. Yes sir.
Q. They didn’t order you to Alexandria within 15 miles? No sir.
William Miller (colored) a witness of lawful age, being first duly sworn, testified as follows: Q. State your name to the Jury? A. William Miller
Q. Where do you live William? A. Manassas
Q. Did you know Mr. Ernest McDonald? A. Yes sir, I was slightly acquainted with him.
Q. Do you remember the day he was killed? A. yes sir.
Q. Where was it? A. It was just about between Wellington and Gainesville.
Q. What were you doing there? A. Firing
Q. Firing for who? A. Mr. Cullen.
Q. The gentleman who has just been on the stand. A. Yes sir.
Q. Were you employed by the railroad company at the time as fireman? A. Yes sir.
Q. Do you remember the day before that accident? A. Yes sir.
Q. Where were you firing then? A. Yes sir
Q. Where were you firing? A. Between Manassas and Fairfax
Q. What was the condition of that engine the day before?
Mr. Moore: Ask whether he knows about the construction of engines.
The Court: As a common observer he can tell how the engine acted.
Q. How long had you been firing? A. A couple of years.
Q. How long had you been firing on that engine before the day of Mr. McDonald’s death? A. I don’t exactly remember now how long I had been on that engine, couple of days I guess.
Q. You remember the day before you were at Fairfax? A. Yes sir.
Q. What were your duties as fireman? A. To fire and keep up steam if I could.
Q. You say if you could, could you? A. Yes sir, if she would make any steam I could keep her there.
Q. Could you make steam when she was at Fairfax on the day before Mr. McDonald was killed? A. She done tolerably well.
Q. You were doing light work that day were you not? A. Yes sir.
Q. You were sent out the next morning were you not? A. Yes sir.
Q. The morning of the day Mr. McDonald was killed? A. Yes sir.
Q. Where were you sent from? A. Manassas
Q. What difficulty if any did you have in maintaining steam on that engine? A. She wouldn’t make steam and I could not keep steam up in her.
Q. Do you know what was the matter ? No sir, I do not
Q. How often did you stop because of failure to keep up steam? A. Couple of times, - two or three times, something like that.
Q. Do you remember stopping at Wellington on account of failure to steam? A. Yes sir. We were putting in some cars and while we were putting in cars got up steam.
Q. Did you supply the furnace with a sufficient amount of coal? A. Yes sir.
Q. What was the nature of the coal, was it good coal, bad coal, or what? A. Very bad coal.
Q. Did you have plenty of water in the tender? A. Yes sir, We taken a tank of water here at Manassas and we ought to have had it.
Q. After you passed Wellington do you remember stopping again? A. Yes sir, up on the hill.
Q. Do you know how you stopped on that hill? A. About eight or ten minutes in my opinion. I never looked at no watch.
Q. Were you giving her coal all the time? A. No sir, not all the time, give it a chance to burn.
Q. Well, she burnt alright didn’t she? A. No sir, she didn’t burn exactly alright. She wouldn’t burn it good.
Q. She wouldn’t burn? A. She wouldn’t burn it free, it would get black; fire would get black and dead looking.
Q. Did she come to a stop or standstill going up? A. No sir, she was going to stop and then we would shut her off and get up steam and fill it up with water so we could move with her.
Q. How fast was she going just before she stopped, creeping along or going. A. Well, I don’t know how fast she was going.
Q. Fast as a man could walk? A. O yes, beating that.