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I

IN TH"It

Supreme Court of Appeals of Virginia

AT WYTHEVILLE

June Term, 1928

NORFOLK & WESTERN RAILWA~ COMPANY, Plaintiff in Error,

vs.

A. L. SMITH, Defendant in Er1•or.

From the Circuit Court of Pulaski County

"The Briefs shall be printed in type not less in size than small pica, and shall be nine inches in length and six inches in width, so as to conform in dimensions to the printed record~ along with which they are to be bound, in accordance with thP. Act of Assembly approved March 16, 1903; and the Clerks of this Court are directed not to receive or file a Brief not conform­ing in all respects to the aforementioned requirements."

The foregoing is printed in small pica type for the informa­tion of counsel.

J. Y. KELLY, Clerk.

I 52 tlo IG c::;

IN THE

Supreme Court·ofAppeals: of Virginia.

AT WYTHEVILLE

June ·Term, 1928

XORFOLI\: & 'VE~1'EHX RAll)lV.AY CO:a'IPAXY,

.Plaintiff in Error,

A. l.J. S~Il'l'H, Defendant in Brror.

PETITION

··To THE HoNoRABLE JuDGEs oF THE SuPREME Coun'l, oF APPEALs . OF VmG.INIA: . . . . ..

Your petitioner, Xorfolk & '\"'estern Hnilwuy Cmnpa.ily, rB"· spectful1) .. repre~ents that it is aggrieved by a judgment rend(!r· :ed .against it in t~e Circuit Omn~t of Pulaski County, a~ set' out i'n the final orrl~1· of said court, enterefl on tile 7th day of 'S~p· tember, 192&, upon u notice of n1otion for dan1ages, proseeute•l in said ccnn;t h)' ..A: IJ. Smit.h, np:ainst your pet.itionei-. . ¥qnr· pe· tit.ioner herewith presents the record in the case, in ·whiCli :tilt~'

. ;e~Q.eJice and-proceedings nt t-he ·trial are fully set forth.

2

XATUHI~ OP AC'riON.

'!'his action wn~ hrougbt to ree<wer dan1age:;; for injurie~

sustained by the plaintiff in un accident which· occurred on the 1norning ·of OctolJer ()th, .1.!)25, in wllieh n collision occurred, nbout a mile west of PuJa.~ki between a motor en r in. charge of the plaintiff and a freip;l1t train of the rn.ilwn:l' c>ompnny known m~ Seeond No. no.

In his notice for judgment, and in the proof, the plaintiff, Smith, bases his right to recover on the ground that the rnilwa.y (~OJnpany negligently gnxe him wt·ong information tts to the 1novement of "certain trains'· and neg·Iigently withl1eld fi,Oln him information (1!'; to tlle wherenboutH of frei~llt tra.in No. no.

The case was tried on the gene1·al h;sne upon the plea of not guilty, and resulterl in n. vet·diet againl';t. rour petitioner f01.· ,3,500.00.

A 111otiou for judgment notwitlu~tanding the verdict, and H

motion to set n .. ~ide the verdic·t and grnnt n new trial were n1ade by the rajlway compnn.r. Roth of t.heRe motions w·ere overrule.d by t.Jte t.rinl eourt.

~TA'l'E~fEX~l' OF PACTS.

'fhe fnc.t~ of thi~ ca~e, in ~o far as necessary to l•e considei'· ed in connection w·ith the et·rot·s hereinafter assign«~d by your petitionf\r, are n~ followR:

A .. I;. Sn1ith, the plaintiff belo1v, wn)s, on the duy of the ac­cident, und for sev(lra J ye;U'l'l .Jll'ior t1lereto, an en1ployee of your petitioner as cnrpentm· fol'emHn, in c>hnrge of n squad of men en~ gaged, on the dn:r of· t.he a<'f•iflent., in I'<.~pairing a bridge (No. 250) located on the m<dn 1int=- of petitioner~s railroad, about 2 1-2 miles 'vest of Pulaski stn.tiou. anrl hetween Pulasld stntion nnd Clark's gummit.

Under S1nith~s charge, as carpenter foreman, was a force of 12 or 15 1nen, and this fon·e hnd been working nt tJJe repa1iT' of b1·idge 250 for ~muc:. time'; f lwir cnstmu being to spend tlw nightR in Pulasld, and t.o A"O to and from their 1vork nt the bridge on a motor car anrl trail(lr l'nnning over tbe tracks of .the peti· tioner.

On the mornin~ of the nccirl(mt., nfter a telephone converRa·

tiQn l1etween A L. Sn1ith, at. Pulm;ki, nnu C. I. l{err, tra.in <lis· patcher of the raihvay cmnpany, at R.oanoke, Smith, with hi~ force of men, pl'oceedefl to,vard ln·idge :!50 by n1enns of the mo· tor ca.r and trniler, and hnd proeeeded we~-;twardly about. a mile from Pulaski l!itation, w1wu, at bridge 24!, the motor car collid · {~d.with a freight train J{nown in thif{ record as Second No. 90. ln e8caping from the motor ear. Rmitl1 lm~t. J1is footing, ancl fell on the ~:;ide of the Lriclgc, and from the ln·idge to the ground be· low, and wa~ injtu·e(l hy tJJe fa1i. 'l'he other men iti hiR force e~­·caped unhurt hefore t1w mot.()J' <~ar· and the freight trnin col­lided.

As state£1_ above,. the J,laintiff, Smith, lmR<~s l1is right. to t·e­cover on the gTound that tlw ra,ilway cmnpnny negligently gave hhn 'vrong information ctH to the movement of ••eertain train~" and negligently witl1lleld from ltim information aH to the wlteJ•<.l. abouts of freight train Xo. HO.

In us In~eh, therefore, a~ what was done. o1· omitted hy the RaHway Cotnpnny to inform Smith of t.he loeation of tl1is tr~lin, Secmul 90, and what was done, or omitted, by Smit.h f.t.imself to receive the inforn1ation <ll'e inquiries of eoiitrolling importance, we can do no better in stating the facts than to quote the steno­graphic t·eport of the testimon)- of A. I.J. Smith, the plaintiff, and of C. I. Kerr, the train dispatd1er, for the rnilwa~- company, bearing on the telephone conversation ha(l between them on the morning of OctolJer 6th, 1925.

Before doing thi8, however, _we wish to call attention to the fact that the duties of Smith. on the one hand, as operator of tl1e n1otor car, and of Kerr, the di~:;patcher, on the other, are recipro· cal, and are designed to assure not only the communication b~· the dispatcher, in a. situation of this kiud,. of infornuttion as to the position~a.nd moYement of train~ which might affect the safe· ty of the 1notor eu· onifit, hut al~o the reception of that infornut· tion by the person in cl1arge of the n1ot~r car. In brief, it h; the duty of the railway cmnpany to t~se reasonable care to. emnmuni­ea.te this mformatit)u, ~tnd, at tlte sanle tinl.e, it is the duty of the person in cllarge of the motor car t'o u~e reasonable care to se­cure the inforination which the railwa~· company, in the dis· cl1a.rge of it~ duty~ nwy communicate.

~ A~ L. Smith, on tl1e nwrniug of October Uth, nnd before stHrting hif.; trip from Pnlaxki to Bl~idge 2fi0, c~alfed np, a:-~ 8eemR

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to ha,;.e been l1is cu~tom, the dispatcher's. office in Hoanoke, got the dispatc.her on the phone~ H;nd the clispatcher answered him. Smith told the di~'Pntcher who he wns, ~uid that be wnnted to go to bridp:e 250 with a motor r.iu· an<l trailer, with hit-; ct·ew of men.

We beg lettYe at thh~ point to quote Smith's testimony (page~ () a.nd 7 of the 1\ISR. 1·er.ord) hearing on tlw telephone eonverl'm­tion front his· end of tJw line:

"Q. Did you get. tl1e uisputeher? A. Ye~~ · :.;ir, T ~ot t1Je di:-;pn.tchc~r the disputdter an­

swered 1ne. Q. When t.lw uispatc"~her answered, what. dicl ~·uu. ~ay? A. I said ~:~rlth; i~ A .. L. 8mith, 'v(_~st End Pulaski,

Carpenter Foreman. . I want to go to Bridge 250, w'ith n· motor car and trailer.~~ and had T ~topped there that wonhl have been mnpl_v sufficient.

Q. What did yon do then? · -.A .. · Tnasnnwl1 as No. 52 wa~ auont Grl~nite Hidin~ up

tl1e1~e I said '~'"11ere is 52, wltat han~ you eoming emd?1 ~

·Q. You ~aid '''Vl1ere is 52'~-hut you flrRt infortned l1im tlt<it you were A. l;. Smith?

A. · Yes, ~ir, the c.u.rpenter foreman. Q. And you notified him t1wt :von wanted to go wil:lt

your e1·e'v to Bridge 250? A. Yes, sit·. Q. And you !'aid thnl woulcl hnve ltetan ~nffident, wh;r

<lid ;von say thclt. '? A. Because when 1 tolu hhn where 1 wanttA(l to go it.

·wa~ hh.; absolute husines~ to tell me what he had eoming HJld

to· give me tlw Jay-onf of l'lw t.ra in, that is lti~ husin(*.;s H ncl not 1ninc.

· Q. vVe m·e not eoneerned wit"h t.hat.. hut. wlUt.t did von nsk l1im then? · ·

. ..\.. I aHked ltitu whei·e ~0. u2 was. Q. And what tlid Jte tell you? . .:\. lie sai(I 52 would he at Ot·nhh for Xo. -n. Q. '"1wt train iH 52? A. 'l'hat is a. train that is due there ahout. 7:20. · Q. A freight or passenger train? A. Freight tl'ain. Q. ...-\n(l he tol<l you thnt. 'Xo. :i2 w·onld meet. 41. nt

Grubb?

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A. Yes, sir. Q. What did you then ask him? _.;-\... Someone broke in and used the r>hone for a litt1c

bit and No~ 41 passed, 'vllich kept n1e from hearing at that tin1e, and when I coul<l.hear hhn again I Hai.d "Well, what l1ave you to say," and he sa.id ''41 ought to l>e by there now .. , ~And I said "Yes, sir, she is here, and I am gone.'' An<l I took 1ny finger off tlte button and listened for quite a uit to see if he had a11ything else to Hay and in as much as he (lidn't say anything, I hung up the receiver and 'vent on.

Q. Di(l he mention alJont ~eeond No. HO nt all? A. No, sir. Q. Are yo,u positive of that? .. A.. He said nothing about second 90.''

~rhe testimony of C. I. l{err, tile dispatcher, in respect to this telephone conversation h; as follow~:; (l\18~. re('.Ol'fl pp. :t::ll-132)':

'"Q. Will you uo\v ple<!Se detail to tl1e jury just what, took place in that eonYert;ation lmtween you a.nd Mr. 81uith?

A. On the 1norning in queHtion, Mr. Hmit.h calle<l 1ne up and aHked me for a lay-out, and I gave hhn the lay-ont as I usually gave hint the la~·-out, and which 1 had doru~

heretofore, of all trainH that was due in tltat vicinit~·. Q.. .Just detail what yon did giYe l1im, what it<~ .• ,ll.a~

tion you did gh·e. him·? . ..:\.. I told him Xo. 52 would lJe at. Hruhh or \VythP\,;·;~

for Xo. Jl.: Xo. 7:! on the m;ual t.inw, and the re~tso•t..; \\L\·

we say ~•usuul time/" :.;ome days ~o. 5:! ~et~ into PL! 1. t~'d

earlier than othe1· days on account of maintNHLnt·,~ •,nw!·:, that is, unloading ::;tone and thing~ of tl1nt (lt>~<~r;p ... :ot•

<l. All right, go ahead . . A. And No. 7l out of Pulaski 7 :5:}. 'l'hat \Vas on thnc

or the schedule lea\'ing time, a.nd I tllink T made me;tH('!l ,.r No. 41 to lfr. ~mit h. and he told me tlwt ITa in wa:{ just ·hy and I told him that ~econd :Xo. HO wa~ ahout Pnln~~ ... i.

Q. Second !lO ahont PnJnski? ..-\.. Yes, Hir. Q. · Do yon J'ecall ahont the hour of da,v thut ~Ir. ~mith

eulled ~·ou~ · A.-· 'l'llere are too many of tlwHe lay-out~ ~· .-, n. n111l r

e<ntldn't teU-tlle hour o~ the dnY . . Q:. But. :~on' told· him tlw"t ~e(~Olld no ~lwu 1_d ht~ ahont.

---,

Pulaski then? ...:\. Yes, sir. Q. Ot· in Pulm;ki? A. Ye~, sir.

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Q. At t.lw tintP ~·ou gaTe him thnt info.··. ;! i! .• r_ c !t I yon have the~e t1'ain rec·tw<h~ l1Pfor<> .von nnd in sight of J'OUt' eyes?

A. Ye:;;, sir. Q. 'l'ell the jm·.r whetlwr or not that is tlu~ JHH'{H)He of

having th<~~e n~eoJ'ds lJefoJ'e you in m·det• tlw t• yo;t 1nip;ht gi:ve him the em·J·ec·t information'? -

A. Tt is. Q. Do you l'ee~t11 wJJethPt· .air. ~mith told you where

he was going? · .1. l think lw <lid~ Hl'idgt> :!50 f helien'- H wa~.'~

rl'he telephone known as the db;pateher~~ t.ele_tJh(llll~ on~t·

'vhich this eonversution wa~ prope1·ly J1eld was so deHi~.mc:d ;1~

to eut off 'nmr.c·es~ar.v Jtoise~, and iH heHt deseribetl in t.lJe testi­nwny of H. JL Htt1itl1. (]i\·j~ion ~nJWJ·intf~ndent of Hw J·:tilw:ty <~mnpau~y on paf,!;c l72. au<l i~ alHo deseril)ed iir t.lw te:..;tinwn.'.: •rf C. I. l{e~·t'· (pctg<~R JH!-18~), and its -workings muy b:! expl:tinetl ln·ieflyJ);v saying that. it i:-: H oue-way telephone, and ·whilP ~mitlt wu~ tu.lking to Ker1·~ IiO nni:-;eH over (".}w teleplwn~ f~oJn f,l l'b:H'h

~rnith from 1~t1rr·s t1 lld of thr line, ot· from intm·Jnedh)H· points: and while J{erl' waH t.alki11g- to Rmith, no noises from tht• Pa! la8ki encl of thn liiw or· int~r·mt>fl ia te point:-; eonld rPadi -l(t~r·J·; thi~ J·<~­

l'mlt being lUHd<- posHiltl<- b,r tile use of a JH18lt hutton •h•\'lt·:e with whieh tlw t.elep1l0ne wn:-: e11nipped.

l-Ji addition to t.lif' injm·ic~ emnphdneu of hy ~tr:ith 1o, Hn.re Leeu suffered in t.ltis aeeidPn L tlw JWoof ~hows that lw lwd eo•x­perienced HHYt~ral ·aeeiflent~ in 'vhiell he had suffered h~.jiP-iPs

soine'\\l":hat 1-l.inHlar· to those lw tom plai11s of here,. and nui~<.l h!y hl­juries of a eltaraeter u~ rem~onably ealculntet1 to lJe r)l:I·::.:,.-nent in an <~cddent on ..Angn~t :!Oth, I H:!5, n litt..le uwre tlhut six wcr·l:s prior to thi~ <W<~ident. u-rJunvnltPI", lJ (;,) Tn the ~tcei<lf~t:'t of t'1f"-

' tol>er ()tJ~, 1!)2~: lu~ eon1pluh1~ in his uotic~e of th<~ follow!n~ ;11.iu-_ t~ies: '"Breakiug of <l honf· i11 plu in tiff's right elhow; ,~.-u,l'.t•l :ng the plajnf,if,f, Jn l1 i:-; fore~ head aucl f<l<'C, and _injuring the '.plain­tifts l.mel~.aud right hand, and len foot: and injuring HlP. J)1uin­tiff's spinal eurd a.ud infli<.-tjug :se1·ious and pern1anent injuries to tlw }Jh~i)1ti.IT:.; slwul<le1·, J·igllt m·m and fingers." . ...:-\n:-1 in the

··.·.

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aecident of August 20th, ,1925, Dr. Showalter, a 'vitness who treated him for both accidents, says he suff~red a sprain of the right hand and wrist, left foot and ankle, wrenched back between the shoulders ·and muscles of right scapula region {page 116).

The only medical testin1ony introduced by the plaintiff was tb,rough lJr. F. P. Branuner (~ISS. Record, pp. 52-5-1}, \Vho vis· ited the plaintiff the first tune on· Octoher 11th, 10!!5, then on tb.e 12th o.r 13.th. Thi~ doctor ap·parently was the plaintiff'R . f~ly physician. A reading of this physician's testimony gives the- impression that he did not think there 'vas any serious in­j~y .to Sn1ith.

All other medical testimony in the case was presented by the railway company through Drs. C. E. Peyton (p. 90), J. G. Davis, Jr. (p. g,l), A. M. Showalter (p. 103), D. ~. Divers (p. 156~~ Not one of these physicians believes that the plaintiff suf­fered a11y permanent injury, but the testimony of all of them is to the contrary. Their opinions seen1 to be borne out by the cir­cunlstance t.hat, although Smith claints- he was made a "nervous wreck" (p. 23), he 'vent back to work for the railway company on Februa,ry 1st~ 1926, at Christiansburg as crossing gate watch­man, worked there about a month,, had a v_ery distressing cross­ing accident on account of which he 'vas discharged. In connec­tion 'vith the service he rendered as crossing watchman at Chris· tiansburg and his deportment intmeqiately after an accident at his crossing in ·"~hich one person wa.~ killed and another serious­ly injured, the testin1on.v of J. S. Goldsmith (p. 179), and C. W. Sumpter (p. 184), is to the efrert that they saw Smith and tal1recl to hin1 frequently, that lie never complained of any injuries; -that he gave no indications of suffering from injuries; and that in­stead of showing sign~ of nervousness even after the crossing ac­cident, ·he ·was so cabn a8 to excite surprise in these two witnesses 'vho saw .him and ~rook his statement.

Viewed as on demurrer, the fact of the injuries is admitted, but the extent of the injuries is referred to here in this statement in connection with the notion of the Circuit Cout•t in its ·refu~a[ to permit the railway cmnpariy except in a very modified· w~y to present to the jury a <>Omparison from which they might have been enabled to decide whether any and, if any, how much of Smith's alleged pertnanr!nt injured condition might be attrlbu­ta.ble to the accident of August 20th, 1925, instead of to the acci-dent :in lJliit. . ··

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The witness Kerr, train dispatcher (p. 125), produced ·the original train sheets for tile day of the accident, photographs of 'vhich are filed with the record, and testified that the informa­tion given the plaintiff Smith over the telephone was. based on these sheets which contained the current record of train move­ments. An atten1pt was n1ade to discredit these records on the

· supposition that an erasure and correction was made on the . sheet in regard to the thne in w·hich Second 90 reported by

Clark's Smumit. Witness l{err when his attention 'vas called to this on cross t)xmnination (p. 147-149) 'vas under the impres­sion that there was a blot or finger mark on the sheet. Later ( p. 159) on looking at the figures through a reading glass, he ex­plains that in setting do,vn the· Max Meadows time for Second 90, it may have been placed on the next line above 'vhich was for Clark's Sun1mit, and when the train "ras reported by Qlark's Sun1mit, the necessary eorrection 'vas Inade, and before the tele­phone conversation was had ·with Smith, the plaintiff (Kerr, p. 159. 1()0~ 1()1 ).

ASSIGNMENT OF ERRORS.

The plaintiff in error assigns the follo,ving errot·s :

1. The refusal of the trial court to set aside the verdict of the jury and render judgment for the railway co~pany, notwith­standing the verdict.

(Certifieate No. IV., l\fSS. Record p. 200.) (Certificate No. I., MSS. Record pp. 1 to 189.)

2. The refusal of i.be trial court to set aside the verdict and grant a new trial.

(Certifica~e No. IV., }ISS. Record p. 2Tf0.) (Certifkate No. I., MSS. Record pp. 1 to 189.)

3. The ruling of the Court in sustaining the plaintiff's ob­jection to the question propounded 'vitness A M. Showalter.

'· (Certificate No. II., 1\ISS. Record p. 190.)

4. 'rhe aetion of the trial court fn giving, on request of tlie · plaintiff, instructions "B" a.nd ''F" as set out in Certificate No. III. (MSS. Reco~·.d p. ~9.2). .

·A;RGUl\IENT.

I. . .

In as much as the first two assignments above· indicated

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alike depend for their deter1nination upon the evidence bearing 01;1 the controlling int.~. uh·y of whether or not the railway company was guilty of negligenc~> 've shall discuss them together, and at­tempt to establish that:

Admitting the tn.tth of the plaintiff's evidence and all 'reasonable inferenc-e.~ to be d·rawn the1·efrom wnd clisregMd­ing ~tny e·vidcnce of Ute defendant in conflict therewith, the verd·lct of tll,e: jury is contra/ry to the evidence a.nd without evidence to su.ppo·rt it.

The Yita.l question in this case turns upon the simple inquiry of wlieth(·r the railway t;Oinpany exercised ordinary and reason­able care to give the plaintiff infor1nation about the location ~nd mov(lnlent of trains, and ~specially of train No. Second 90, which would have enabled the plaintiff, in the exercise of ·rea­sonable care on his part, to have avoided the accident" out of which his injuriE:s now romplai.ued of arose. · ·

It will be noted that it is achnitted, irrespective of any rules of the railway company, that when Smith, the plaintiff, on the n1orning of the accident, call~d the train dispatcher over the railroad telephon(l pro,·ided for that purpose, it bt:'cmne the dnty of the_railwa.y con1pany to. give S1nith all general a.nd specifie in­formation 'vith respect 1o trains as would have enabled Smith to n1ake his n1otor trip in safety.

Equally irrespective of rules of the railway cmnpany, it is obvious U1at in order fo1• the information which the railway com· pany is charged with conveying under such circun1stances to ·be­cmne eff~tive, it 1nust he received and heeded. In other words: there· is a reciprocal duty resting upon the railway company on the one hand, and on the person in charge of the n1otor car, on the other, in this respect. This duty, in so far as Smith, the plaintiff, is concer;ned., h· 1nade specific by Rule 693 of the rail­way company, which, so far as pertinent in tliis_ case, reads as follows:

''693. ''Then practicable, before starting on a trip, the . motormaJI. should inforn1 ii1mself as to time of overdue trains, specials, etc., and ascertain if traffic is nor1nal by

. conununicating· with the nearest telegraph operator or dis­patcher." (P. 166 Transcript.)

· , ·A. part of Rule 691 provides :

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"The operator (of n1otor cars) must be fatniliar witlt the scheduies of trains on the district over which he is run· ning, and must provide libnself 'vith current time table an:d standard watch." ·

It is apparent, ther·efore, that if, as a matter of fact, the rall\vay company through its dispatcher conveyed the informa· tion. required of it in the exercise of its duty to,vard thi~ plain· tiff, and the actuai receipt of thn.t Information 'vas prevented by something w:hich occurred at Sn1ith's end of the i:irie, and kn<twn te Smith, but not communicated by hin1 to, or known by, the dis· patcher, the failure of the motor car operator :to receive the in­formation can not be attributed to the ra~lway company, unless th-e raihvay company negligently created the interruption.

The phone conversation therefore behveen the plaintiff, Smith, and the dispatcher, Kerr, on the morning of this accident, must be looked to solely to find out whether the railway company perforn1ed its duty.

Upon the question of liability, the case may be rested sub:­stantially upan the testhnony of the plaintiff.

We have above quoted the whoie of the testimony of botlL Smith, the plaintiff, and of Kert·, the dispatcher, bearing on this telephone conversation. We submit that the court will not finn. any conflict in this testhnony.

Leaving out the formal questions andan~vers, the plain~ tiff~s version of this tele-phone conversation is as follows (Tran­script, p. 6, etc.) :

"I got the dispatcher and the dispatcher answered me and 1 said this is A. L Sn1itll, West End Pulaski, Carpenter Foreman. I want to go to Bridge 250 with a -motor car -and trailer-whel'e is 52, wha.t have 110u coming eaBt'r'

Smith then released the push button above descri~.d and_ Kerr, the dispatcher, began to communicate his information. Stiifth cont'ili'nes (p. 7, MMS. Record) :

''He said 52 would l1e at Grubb for No. 41."-"Some one broke in and used the phone for .a little. bit, and 41

. passed, 'tvhich kept 1ne /'1"011'11 hewring at that ·tinte, .alld wl~ten I could hea'r_him aga.in, I said, 'Well, what have you to say,' and he said '41 ought to be by there now,' and ·1 said t:Yes,

, ·.! · 1'·,:. 'u;l.

11

sir/she is by here, and I am gone,' and I took my finger off the button and listened for quite a bit to see if he h.a.d (t.I'".Jl·

. thi·ng .else to say, and in as tnuch as he didn't.say. anyt.hing:~ I hung up the t•eceiver and ""ent on. He said ·nothinu:· about second 90."

Now the foregoing is the "rhole of the plaintiff's staterrieni.. .A brief arinlysis will, we think, sho,-..· its insufficiency to estah · lish any neglect of duty on the part of the railway companJ. ·

· it \vas Kerr's duty to give Smith the "layout" of tt•itins which n1igltt affect his trip. ·Therefore. tlte specific quel!;rio~

asked by ·smith ''Whet•e is 52?" and· "Wllat haYe you coming east?''··gatiier their· importance chiefly frmn their connectio11 with what follows· in the conversation· as related by Smith: ·-

"He (Kerr)' said 52 would. be at'Gt''u.bb for No 4-1."

·Thus Kerr the dispatcher begins his reply by answering. Smith's speeific question about No 52. But up to this point he had not given .Smith the "layout," nor ltad he begun to say any­thing about what lle Iiad ':_coming east."

"Some one broke in and used the phone for a little bit,". says Sniith. It will be noted that the dispatChet· co~ld not, owin~ to the constt·uction of the plione, hea.r this "break in,H which Wt.l.:;

probably -a brief conversation between Intermediate points somE!­where- along the line. But Smith could and did hear some on(! use. th;e phone· for· a '~little bit," .. ((And 41 pa.ssed tvltich kept 1ne fromlt,.ea;ritng o;t·tla.a.t tim-e/·· ·The dispatcher could not, owing-.Lo · the construction .of the phone, hear the noise of this train. No. 4:1, which 'is &-:heavy passenJ.,.-er· train and which passed within u few feet·of the telepltone Smith was usfng. . But Smith of course could and did hear this-passing train and its ·noise . preventerl him, while the train 'vas passing; fron1 hearing what the dis­patc~er w~ S~Jing= .. 'V: a!'l the. dispatc~er (Kerr) saying . a~y · t~g_ while. '~someone br~ke hf' l_lnd 'v}1il~ 41. was passin~?~ Tie 'vas proc~g ~ith hi~ l}lessa~e ~o·smu~ up t~.t~at point. Dit~ he siisp~ud ~is t_alkmg \\•hile a ."b_reak in~' occu~·red ~hat Jie COi:il<l not ]tear. 01~ while 41 was passing, the noise of 'vhich lte could uofhear? It is .incredible and against every presumption of rea­son to. say tl1at this dispatcher, 'vho had already begun a·nd ·..,v;ts continuinf! ltis messal!f' to the plaintiff, stopp~ ·Speaking· whiie interruptions, \vllicb he ltne\\ .. Ilothing about and which pr(lvcnt·

1.2 .

(!d ·@m.ith ,from _rllea:ring .. 1were. ·taking: plar..e· -at.-&nitliJs•end;t..of:·;Uu~ line.

And if .the di~patd1er continued to speak 'vl1Ue ·41 was Ptt~sR~ ing, what was J1e talking a.bont"f ·

'l'he dh;pat.cher sa,rs lle told hhu what was con1ing enst ar:d ga.ve· him· the ~~layout~' ··'l'bis,train disilatcher ~duri:Qg. ·thisdnt.cr· ·ruption,· \vhich:·the tllain:tiff' knew of ttnd admits-,-k~J)t-;J)Jnt fr.o~n Jteanng, :was; silent, or ·lte wal-! talking :aboub tt•ailuHor= · be ··w-ns talking on ~son1e. ·ot1iet· subject. · In the ligltt of t.1~e ;y;plainti·ff's own--s.ta.telnent~tllnt·w1u~1l the interl.·upt.ion oeeUN'ed:llenvas.talk­ing:ah(:}.ut h·t~i.n· :No. 52~ un:d·when:.it ended he~ was;tttJldng :about. h·ain iN o~·~41 ,,we .ntay diseard atiy ~up position· that :he·.~tttenlpt~ to discu:s~ ttuy;ntbPr suhjet·t.· with.·Smitlt, -tlw plaintiff.

\\'as lui talking at a.ll·dui"ing thi:-J intert·uptiou?

,Snt-l.tlt ~il.ys "''vlien ·T eoulti -Ju;ur ·Xim u.gali-n_. 'I su.id, "·Well, whllt- have·;you to say,: and lte·said ;41 ought to·be:by there· no~·/ No. ·4:1 i~ not·u h•a.iu '"coming east/' 1t: is a-train going westt and, us this record sh()W~, met. -second 90 at Ht·anite Siding~·-wluit · h~ _become, of the a.uslver to ~nl.ith),; questj.on abo.ut eastbQwul

. trains? K~rrJuul uh~eady begun before. the iutercu.ption.-. to an­~wet· speci,ft~c.tll~·. He lmil t.old him about No •. 52.

'li'1·om the aecounf: t11is plaintiff give~. of this telepllone ·<~ou­vet-sation, 'he 1keard 'ft•om t11e disJ)atcher; in a.in!lWet· t{) a. ;request fot~=.jnfo••mation \Vli1c1l would furnish protection fot· 1:2'()1·~15 nlen ou a mt>tm~: mu· ou.t.fit, tltat No. ;)2 wouldlwat G·rubb· for· ;4'1- an£1 that 41-ought·to 1Je· hy there now. .And·Grubh it \vill:he·noted is Wt.-'2St of~ Wytheville! · ·Jfe heawl nothing about· Second ·90~~:\vhien w~ not only ••f!Om ing (l.ast.~' bn t hafi been reported by ··ola'l'k's Sununi't and wns, of fill trajns, as tli(~ re~mlt proYed, ·the tr-a.iu eom-ing enst that· uligiit _gh·c trouble. -

·A.ud,. to '~ucl.ude tbi."i: examinatiOll of Smitlt:s,-~Stat-enleat, he· · ~a~·ti :·'"I sa-id, "Y.QS, .sir_. .. she :is by ·here .cL.Jul ,l-.am y.o-u .. o' ·'·~; ~and. I took' lJ ty U!fget• .. off. tlu~ .. bnttou an<l_l·iste U·(~t-. f.or' q·u.ite. a hit r to .see if he-.luul anything elsc-to-:o;ay ~•nd,:iu a.s 1uuch ~u~--.he-dldn:t say anything. m.o·re LltUJl.g up the receiver -~uul went. on'/' \V-e .. aJ.fc 1--a.tber sh·.u.ck .\vitlt the.no,·elt)7 of!the-idea .t~f. the ·pl-aintiff:in lis­teni.J!ag ... :~quit-e: .a .. bit~~_.after l1e·had already. tokl th.e -dispaOOker "I· am. gpnp,. ~~ '\Vlll.S-;.tltj~ in ,an~ .. degl!t:lC< UlH!: t.od:he l'Cfl~tion;..tJ.wtt~J.K· ·

i3

had·~not,heard·rvet~y.much''from··th~ ~dispatcher ·while 41 was passing?

·This testimony of the plaintiff hin1self shows so clearly that he did not bear and. could not haYe heard all of the dispatcbee~ Inessage.·as:.tofmake.~his sta.te1uent that the dispatcher said notlt· ing about~·secoad 90;useless as evidence because of inher<~nt. im­possibilities·qvbich.are too·opvio.us t(_)·requh·e discussion.

Now,.loQk~g at this case solely fl'ont- the plaint-iff'~:; own tes­timony, .. has_.lle .. sbown tllat .the railway n~gligently fn~led .to

. transmit~ to him the, l'e(}Uisit<• .inforn1ation nbout trains to. enable him to avoid.anraccident, or bas he shown.nlerely· that he failed to receive tbe :information which-lleJrimself sa~rH was h(~iug- trauH­lnitted when the int.erruption took phwe?

·W.iikout·cuu~idex·ing:the statentent of the di~pateher nt all, 've~subtrrit tb.n.t.~-tbis:plniniff'8 testiJnony it~elf Hhow~:

1. ~rhat the 1~aihvay compal).y had begun to gh·(~ aud wa:-:~ eontinuing-to ~iw)· the. l'<)quirerl itlformation to the p1a.intiff.

2. ''flutt .. for u. con~iderable interval Hmith~~ hearing was in­terl~upted, and Smith Jn1ew and ·the dispatcher had no 'vny nf knowing- of tlu~ it1tet·r·,Tpti(m, un1P~~ ~mitll told him about it.

a. ..'rhut·~utitll. did ·not iufortn t.he· dispatcher of hili inabil­ity to lu~~n··!hiJU~,.Jilo,u~, to: 1~.quh·e · tlte dispateh<~r in tlw di~o~cha.r~e of his.duf.y tQ t·(~JH~ut. t.he me~Hng.e.

4. ·'£hat. t.he dispatc.her, when inforrrted by the plaintiff, Hmith, of "~ho ·he wn~ mid wher·e he waH going, recog11ize<l . his duty and hegan and ended hi~ message to this plaintiff in ~uclt H

way.a*to~leave·uo rooJn· t·o doubt that· dn1·ing the intert·nption he w.a~~ etm~tin~~ ·inft•l'JUation ~ in·1ine :with the discharge of tlun duty.

~ln thi~ cotweet.ion it nw.y lw renu.irked that this last i~ indeerl a necessary inft)renee :1~ being the only rea~onnble one in line witll thf) shtt~JHf'llt of the plaintiff llintself .

. 'l'hus far W<~ have stri<~tly eonfi(lled thiH diRcus~ion to t.he ~tatement ·of Sniitli,. tJw plaintiff.

The rule doeR not . ..orequire .. that l)Ve•tlisoa<r:d ~th.ejt~stiJrrotly· of

14

the train dispatcher, J{err, 'vhich is not in conflict "rith Smith's testitnony. I.~et us examine this ln·i.efly:

e. I. Kerr'~ evidenee on tlliS point ('rr·a}h\jCript, p. 131,. etc.) 1na~· b~ narrated thu8:

·~on the naot·t:;.ing iu question, li1·. Sn1ith called 1ne up and asked me for a lny-ont, and I gave him the layout as I usually ga.ve lll.m the lay-out, and which I had done ltereto­fore, of all train~-; that were line in that vicinity."

"I told him No. 52 would he at Grubb or Wytheville for No. Jl; No. 72 on the u~ual t.hne! ·No. 71 out of Pulaski nt 7 :55; I tl1ink I nm(le mention of :Xo. 41 to Mr. Smith, and he told me that train was just b~-, and I told hhn that Se<.··· ond No. 90 wn:-: al1out Pn lasld."

'!,here iH a J•ule 'vhieh nevel' yields to anything but proof, nmuely~ that negligence is never presumed. In its applicatio:lt het•e it means that the di~patcltPr will not be presumed to ]tnve neglected his duty.

'fo justify the vet·dict of the jury, however, it m.ust be decid· ed that that presumption iH overcome by the testimony of tll<~

plaintiff that there was an interval while he t.ouldu't hear, and therefore didn't hear wiiat the (lispa.tclter, whose statement is un­contradicted, sa~rs he tol(l Smith alJont. Second No. 90.

Other 1·ea.:o.;uns wh,v this ve1•diet should have been set a~idc are that the verdiet is excessive~ and that the Court erred in gh•­ing instruetions B anti F a~ set ont in 0ertificate No. III.

"\Ve ask the Conl'f" to tousider these two grounds for setting asid(~ tlli~ vel'dkj~ i11 eonnectiou with 1\·ha.t folio"·:-; in the discus· sion of the hu~t two a~~ignments of error under heudin~ II and lJI below.

Upon this hraneh of tlw ease, we earnestly and respeetfull~· subm.it that the learned ,iudge of the Circuit Court should lulvt~ Het mdde this ,.<.wdkt, and luwe 1·endered judg1nent for the rail­way contpany, 011 the gt·ound that thet·e i~-; no eviden(~e to !:-tUppol't the verdict.

If Instruction No. l (~I~~. Het:ord p. 197) gh·i!n on motion of the railway <;ontJmu,\·, t·orl'eetJy stateH the respective duties of the ra.ilwa~y <~ompany~ on the one hand, and of Smith~ the plain- • tiff, on th<.~ ot1wt·~ nnd the rule of law applical)le thereto, It i~

submitt£~d thu t the ,·m·diet ean not lJe upheld.

. "·~·- 15

If a lit.igant has offered uo fncts upon which a. jury would he wa.1•ranted in iinrl~ng- n verdict in his fnYor, then he bas not presented n matter whi('.h entitle~ him to any benefits of a \'er­dict.. If there hns heen a plain (],~yiation from rigltt nnd justice~ as is said in the case of .Fm·hes Ys. Southern Cotton Oil Con1pany .. 1:30 ·va. 245, n eourt of lnw, with nll due respect that should be acf~ot•ded n jnry~s \·erdict, will not hesitate to see that justice is clone bJ setting the n\J•<lict nside, mHl riA'llting the "~rong. Tbis priiwiple is illustrated in mnny othc~r Yirginia; rm;es, among which mny he citerl :

Hick~tt.~ v .. J. (\ )leCt·or.\· Co.~ V18 Vn.., 548; Ca.r·dwell , ... N. & 1V. Ry. Co., 1.14 Vu. 500; C. & 0. n~·. Oo. Y~. Stoek, lOJ Va. 97; .Am. J..~<)com-otive Co. Ys. 'Vhitlock, 109 Va. 2~8; lTpton & 'Yalker Yl'l. Hol1owny, 1!:19 ·va. mw;

II.

1'he third a.ssigument; of error i~ tlwt the trial eourt $ustain­~d an objection made by the plaint-iff to a question propounded by the defendant to th(~ witnes~~ Dr .. A. ~'f. Showalter, as set out in Certificate No. II C~n;;:s. Record, p. 190).

~rhe evidence shows tlint Dr. Showalter treated this plain­tiff fot• injuries sustained by him in nn accident very simila:r in its effects on .. :\ U~Just 20th, 1J)25, and nlso for tl1e injuries sust-ain­ed· by hin1 in the a.ccident. here on October 6th, 1925.

In the accident of . .:\ng-nRt 20tll, 1!>25, this plaintiff suffere<l injui'ieill ao; follows:

'"Sprain nnd hrnisP of the right hand and wrist, left foot and ankle, wrenehed hack between the shoulder and muscles of t•ight f-\capula region:~ (~£8~. T'tPcord. p. 11.6.)

At the time of the accident of October Gth, 1925, tiie plaintiff Smith had been working only '~about 7 day~-.(' (liSS. Record, p. 23). In other words, lw harl been una.hle to work on account of the injuries suffered on August 20th, 1925, until al>ont seYen da~~s pt·ior to the time of the accident sued on.

In his testimon~· in this ease in describing his inju1•ies C~lSS. · Hecord, pp. 19-21.), ite snyH: ~'l\!y whole l>Od~~ wns injured, but

my back and rigl1t sl1onl<ler "·as injured 1\;rorse and 1ny right arm." · · . ·l}, - . : :«:. ~-;J.

--·- L--.:2t..i...JB

---,

16

••1 hnd ·pain near t-he ·spinal. region. tlironglis the. right shoulder .... " (l[S8. Record, p. 20.)

HQ. 'va~·~·onr left foot: burt ot• ·not!?. ·•A. Yes; ~h·:' (P. :!1.)

We have quot.(ld :-;uffieienU~· to indicate clea.rll~. the·sim.tlar· it.y of the Jlrincipa:l injurie!'l nllegefl b)" tltis plaintiff: to bnve been suffered in these two accidents. 'fhis similarity is empha­sized· and largely explained h~~ further proof, W'hich shows. t.hat tJ1e accident of Anp:ust 20th, I {)25, wns a fa.lLfrom a bridge.tinto t.lle roctQ· he<l of a Htt·eam, nntl in this necident the plaintiff fell a dista.llC(~ of lH -feet (1I8S~ Uecord; pp .. 37~ 39); "rhile·in the a·cci­dent undet· inveRtigation lte fell about· n •feet.

'Ve. thiukthe -Court eonnnit.teed grave .err~or iu excluding test.imony heN~ 'vhicl1 migl1t have enabled: the juvy · to compare the t.wo injuries-especin.1l.r in Yi~w of the fact that tlw plaintiff introduced no medical teHtimon~y whatever showing the actnnl nature of lliH ·injnt•ie~ or indien.ti.ng they "rere per1nn.nent..

Viewed from the standpoint' of the plitintiff's o"~ 'testimonJ~ and the testimony l1e int.I·oduced in· respect to his iirjJ.ll~y,-_·th'En~e can be -Jittle· qne~tion that such injuries as he may. Jiave. suffered in the accident of Al.t~nst. 20th, 1925, were just as 'likely to pro­duce tire effect~ Ju~ no\\p <·mnplnin~ of, ns 'vere-the-1atter·mjuries. And this-is wlt~~t thtl· n1~dical witness,. Dr. Showalter~ would~ha.ve b1:ated, a.n<l; a~ a mn.ttet· of f'aet; is· wliat·.het·did .state::later:. ouiin his testimony: but und~r suc~h ·circumstanees~as::your Hbnors::'\\-"ill note from the recm·o, us woulcl have little if any effect on the jury·; especially in Yiew of the eoures ruling. complained of in this n.ssigrunent, which indiented to the jury that sucli testiinony wns· not to -he ·c-oni'lid£ll'P.rl.

We submit that tile testin1ony sought to be placed hP.re be­fore the jury wns Yit.nl on the question of tlie extent of this plruin· tiff's' injut·y, and wns in· every view· admissible·, and~cc•mpet:cnt for this -put·po~e.

III~

'l'he fourt.b assignm<.Ant of error· relates to the givin.§ or in~ sti"Uctions B·and F'as set. out· in·Oertifi.cate No.3 (MSS. Itecortl pp.;l93; 195). It 'viii he seen, 've think, tliat·th-e question of ·co~l­t .. ibuiOI"y -negligence is not raised by th'e pleadings, noi· in the PfO(}f. Instruction B, however, deals altogether with cont'i'ib··~-

---- -~---~-

17'

tory negligence.

This smne objection ho~ true of lnstruetion 11', which ~eews tu lle based on the i<lea thn.t some advantage Inight be taken, though no indication uf such a purpose appears in the cuse, o1: the cil'­cumstance that the plaintiff fell from the Lridge 'vhile escaJ•ing from the 1notor car, which Reemed in iinminent danger of f'.ollid· ing "ith Second No. no. 'l'his instruction F i~ ttlso subjc<'i~ to severe criticism hec~ause it nppareutly assumes that the plahttii"f here w·as pluced in peril '~hy the fault" of tl1e rrlih,~a~r cmupan,\~, which was a 1natter to he determiued hy the jurr.

Instruction B is fouud on page 1 !)3 (:~If4S. Record); a.ncl in­str·nction F is found on png-e 19!1 tl1ereof.

'Ve suhn1it tlutt t ltese ohjeetions to these t.wo instrueti.on~

are of extreme importn;nce in this mu;e. They co:uld have nu other effect than to confu~e and miRlearl the jnr~r to Ute injury of your petitione1·.

This is aside frotn the consideNttion that it is ert·or to give instructions on issues not raised by the pleadings, anti not brought into the ease hy the defendant in the proof. 'rhe con­trolling reasons for this rule nre based on the idea that to give snell instructions would occasion surpt·ise to the opposing part-~·. rtlnd, what is ev(m tnore important, would tend to direct attention away fron1 the true issneF~.

Dudley , .. IJewis Shoe Co., 11.3 Vn. 41; Jones Y. Oom1nonwealth, 100 Va. 842; Alexandria Savings Inst. v. MeVeigh, 84 Va. 841; Norfolk & Southern R. R. Co. v. Ct•ocker, 1.17 Va. 327; V. I. C. &. C. Co. ,., Od1es~ Adntr., 118 Vn. 280: So. Ry. Co. v. Davie.~, 108.Va. 378; I,ocn. Consol. Coli. r.o. Y. Hairston, 117 Va. 118.

}..,ot· the reasons given, tUHl others to he assigned a.t har~

your petitioner respectfully prays that a. 'vrit of error and super­sedeas to said judgment b{~ granted; that such judgment be here ent-ered in favor of the petitioner as should have been entered by the trial court; or that t.he judgment of the t.rin 1 court.' lle re,~erA­ed!' an<l a new trial awarded.

:NORFOIJK & 'VEST}~RN RAIIJ'VAY CO~Il')ANY, Peiitionat~.

By Cou11sel.

18

GILMER & WYSOR, Pulaski, Va. W. B. KEGLFJY, \V:vtheville, Vn.

For Plaintiff in Error. :I, ·H. C. Gilmei·, an attol'ney at :law, :practicing iu tile Su.:.

pt•eme Court of Appeals of Virginia., i)lereby certify that iu my opinion there-is er1·or in.the judgment cmnplained of:in·t.he·f()re­going·petition~ for which the same should he revie,ved and ·re­\r-ersed.

Given under my hand this the lnt".h day of Decen1her, .Lf¥2·7. . -H. C. ·GILMER.

'Received Dec. H, 1927. P. -~r. ·'C.

\Vt·it of et~t·m· a.nd supm·sedeas awarded. Bond.$4,000.00.

To the Olerk at W11theville.

PRERTON'"'· CAMPB1~LL.

RECORD

Virginia, Pulaski County, to-wit:

Pleas before the Circuit Court of tile County of P'Q.laski, at the court house thereof, on the 17th day of. October, 1927.

Be it remem l,ered, tbat he1·etofore, to-wit: On the 4th day of October, 1926, came A. JJ. S1nith by his counsel and filed his no,­tice. of motion for judgment for damages against the Norfolk & Western Railway Con1pan~r, in the following words and figures, to-wit:

"T()..the Norfolk and 'Vestern Uailway Company, a Corporation: Take notic~e that on Monday, November 9th, 1926, that being

the first. day of the Noven1he1· tern1 .of the Circuit Court of Pu­laski County, Virginia,. that the undersigned will move said Court· for damages agsinst you in the sum of Ten Thousand Dol­lars ($:1 0,000.00); for injuries inflicted on the undersigned while in yow· employment, in the County of Pulaski, 'rirginia, to-·wit: on the 6th day of October, 1925.

The undersigned and hereinafter referred to as the plaintiff, avers and clull.'ges thut the injuries hereinaft.e1· complained of were caused by tbe negligence and carelessness of you, herein­after referred to a~ the defendant, in this~ to-wit:

1st. 'l'hat before and -at the time of the grievances herein· H.fter eomplained of, the Nol'.folk & Western Railway Company~ a corporatkm, was the owner of a certain railroad extending through the County of Pulaski, and running from Roanoke, in the State of Virgini~ to Bristol in said State, and in connection

with said railway ran thereon and maintained, controlled [ii] a,nd operated a laru;e number·of trains, and that the plailr

tiff on· the date of said injuries and f6r son1e time prior thereto had been in .the e1nploy1nent .of tile defendant as a cal·pen­ter foreman engaged in repairing bridg.es on said raihvay, and that as such carpentet· foretnan he :was in cha;rge of a gang ·of men, au.d that on the da~v and year afot•esaid, it beca1ne necessary for the plaintiff to transpo1•t over said railway, himself and his men from 'Pulaski. Virginia, 'vhere they 'vere staying, to ~ cer-

tain bridge on sai<l railway, a short distance 'vest of 1ihe Town of Pulasld, Virginia, on "Thich bridge the plaintiff as an etn­l>loyee of said defendants was working and tha.t in the perfornt­ance of his duties as carpenter foreman as aforesaid, he trans­ported his workmen frmn place to place "in a certain· rrtotor car, and that the defendant well knew t-hat he was so transporting himself and his sai() men over the railroad of the defendant to said place of work, and that it then and there becatne and was the duty of said defendant to giYe to the plaintiff, inforn1a'tion as to the movement of his trains over said railroad in order that the plaintiff could safely h·ansport himself and other workn1en over said railroad to the place where -tl1e plaintiff was w·orking for the defendant, llut the defendant wholly disregarding its duty to the p1~1intiff in this behalf, earelessly and n~gligently

and with great want of the ·degree of care required under the ch•cumstances, through 1ts train dispatcher, and servants, neg­ligently, wrongfully and tarelessly gave to the plaintiff e~~ron­eous and· Wrong Infot•nmtiOll <lS to the lllOVement Of certain trtt.ins on said r·ailwuy on the :·m.id .Hth day of October. :1.925, and negligently, ca.rele~~ly aud wrongfully withheld from the plain~ tiff information as to the whereabouts of one of itH train~, to-wit:

freight train number 90, and that the pla.intiff relying on [iii] said information pro(~eeded ·from. Pulaski westwardly

along the rai1wuy of the defendant on said nwti>r car~

transporting hims~lf and his gang of men to tlie afm·e:-;aid bridge nnd while so proceeding eneountered ou :-5a.id I·Ailwa~· said freight train No. 90, whie1t was coming east on said raihvay, <tnd that said plaintiff seeing that a collision with said freight train was inevitable, nnd tlint said Jnotor enr and said freight train 'veuld n1eet on or n<*l.l' a bridge on said railway, got off of said 1notor <~ar in an endeavor to aYoifl being injured in sa.id collh;ion, and in so getting off of said 1not.or ea~, witl1out fault on Iris vart,Jost his footing u.IHl fell through u hridge· of t11e defendant on to the g1·ound below, and was therehy greatly injured, bruisell and hurt, and on account thereof liUlitaiued the following injuries, to-,vit .: Breaking of a hone in plaintiffs l'ig·bt elbow, wounding the plain­tiff iu n.ls forehead, head, face, and injui·ing the plaintiffs back and right Jtand, a.nd left foot, and injuring the phlintiff's spinal eo1•d, and inflicting serious and pe1·1nanent injuries to the plain­tiff's shoulder, right arm and 1ingers, n.nd otherwise pertnanent­ly' and severely injut•ing· the plaintiff internally~ and nffccting: his n~t·vous ~ysten1, and on account of saitf inJuries perJnanently

-----·------------------------------~

21

incapacitating the plaintiff frmn following his usual vocation, and causing said plaintiff great physical suffering and 1nental anguish, and pe1·manently maiming and disabling the plaintiff.

The plaintiff aYerring that ut the time of sn:id accident, he 'vas receiving '$154.00 per 1nonth, and that on account of said in­juries, negligently and wrongfully inflicted as aforesaid, that plaintiff has been.unable with tl1e exception of a very short time to perfor1n any 1nanual labor nnd the plaintiff a.vet·ring- that he

·is perinanently di~ahled on account of said injuries. 'fhe plaintiff avet·s that said injuries were inflicted by the

<~areless and negligent acts and omissions of the defendant on account of its failure to prmnulgate and enforce proper

[ iv] rules and regulations governing the running of its trains, and 1notor tars. for the protection of its e1nployees; that

said defendnnt was negligent in misinforming the plaintiff as to the 'vhe1·eabout.s of all trains likely to he encountered by the plaintiff in operating ~aid motor car, and in t·unning said train~ without proper instructions or directions to t11e plaintiff, ae the operator of sa.id motor ear, ns to the schedule or w1Jereallonts of said trains.

The plaintiff allegin_g that on account of ~aid negligent acts and mnissions herein set forth that all of said injuries we1·e neg­ligently, 'vrongfully and carelessly inflieted by the defenda.nt as aforesaid, on the date aforesaid, and tlta.t said plaintiff luu; lleen da1uaged therel1y and on account thereof in the sum of $10,000, for all of 'vhich the undersigned will move sa.id Court for judg­ment against the defendant, the Not•fo]k & 'Vestern Ha.ihvay Con1pany, us h~reinllefore :o;et out.

Hespectfully, A. L. SMI'l'H,

By Counsel. J. H. UHUDY, ~TNO. 8. DRAPER, p. q.

And at another day, to-wit: At a Circuit Court held for [v] the County of Pulaski, Vir~inia, at the court house there­

of, on Novemhm 11th, lU26.

A. L. Smith, Plaintiff vs. Order.

Norfolk & "Vestern UaihnlJ' Co., Defendants

This da:y came the pnl'tieH b~r their attorneys r~t.ivel~7'

22

and the defendant, Norfolk and "r estern Railway Company~ :files its plea of not guilty, and issue is joined thereon.

And on motion of the defendant, the plaintiff is required: to ftle a bill of P«.trticulars of his clahu within 30 days fron1 the rising of this. Court. ·And upon motion of the plaintiff, the de­fendant is required to file its groundR of defense· within 45 days from the rising of tbi8 Court.

And this eansP if'l rontinue<i.

And at unoth<::r day, to-wit: At a Circuit Court held fo-r [vi] the County of Pulaski, Virginia~ at the court house there·

of, on Fc~hruat·.~· 2:!, 1027.

A. 1~. Smith~ vs.

Norf'olk & 'Vesteru Huilway Oo,

Plaintiff

Defeildunt.

'rhis dny eame the parties by their respective a.ttorneys, and th.iR <~ause iR eontinued to th{\ l\{ny teJ~nl 1927 or tltis Court.

And at another day, to-wit: At a Circuit Co11rt held for [vii] the County of Pulas1d, Virginia, at the cour·t. house

thereof, on Mny Hth. 1H27 .

..:-\:. L. Hmith~ Plaintiff, VK. Upon Noti<=e of ~lotion fur .Judgment, for

~Persona 1 Injury. N. & \V. Haihnt~v f'o.~ Defendant.

Thi~ rlny eame ngnin tlte parties by their attorneys, umd thereupon huue a ju1·.v selec·ted according to law, to-wit: J. S. Dix, W. L. Hoope; Geo. Carnahan, '\V. I~. Smith, W. A. Clntmb• ley, C. l\I. 'Lindsay and 1~. ~L Val!gllau, who were sworn to well and truly ti·y tht~ issue joiiwd between the plaintiff a;nd defend­ant, .and a true verdiet renrler aecording to the law and evi­d,enee, nnd not htnring heard an the evidence were adjourned until tomorrow morning at !) o''elock.

And at another day, to-wit: At a Circuit Oourt held [viii] for the County of Pulaski, at the court house thereof, on

ll:ay lOth.~ 1927.

A .. lJ. ,Smith, Plaintiff

23

Yl-:. Upon Notiou of }lotion for .Judgment. for Personal Tnjurr.

X. & 'V. Ha iJwar r.o.. Defendant.

'Phis day c~nue agc:tin the parties hy their attorneys, and -the jnr:v haYing now heard all the evidence and received the CourtJs .instructions, and heard argttment of counsel, retired to their· t•oom to eonsirtm· of thflit· v~rdict~ and a:fter Jt while returned into Court, having found th~ follo·wing verdict, to-wit: "We the jury find fm·the plaintiff dmnages to the amount of 1~Jtirty•Five .Hundred Do lim·~:~· whereupon the defendant by counsel rnoved the· Court to set mdde the verdict of the jury and render judg­Jnent for the defendant'., notwithstanding the verdict of the jftry~ hecnnse the vtwdict iR contrary to the la'v and evidence.

And·the defendant in the event said motion fot· motion for the defendant not.with~tn.nding the verdict of the jury, should be denied, move~ the Court to set aside the verdict of the jury ru<

being contrnry to the Jaw and evidence, and grant defendant, a new· trial on the following grounds:

First.: Because of ert•orH of the court in .the admission of evidence for the plaintiff oYer the objections of the defendant, and in the e.'\:clusion of the evidence offered br the defend.ant upon t·ke ·objections of the plaintiff.

Second: Because of n1isdirection of t.be ·court to the jury in giving instructions to the jnry on motion of the p1a:intiff over the objections of the defenda:nt.

Third: And for the refusal of the instructions .offered by the• defendant.

'Fourth: Upon the ground that the verdict is excessive and without evidence t.o support it.

Fifth : l~or other grounds to be ass~gned at the argu,Juent. By· consent of parties this case is made a vacation c,ase, any

o~der to be he~.after (lntered to ha.vetbe smne effect. uJ.; if en•r· ed in term time.

And at another day, to-wit: At a Circuit Court held [ix) for the County of Pulaski, a.t the court. h01_1se tbereof, on

Reptem her 7th, 1927.

A. L. Smith. l'laintiff, vs. Upon .Notice of Motion for Danutges.

N,.·.&·W.;Ry .. Qo. Defendant.

24

This day came tlw pm·ties hy their attorneys, and the Cou1•t having hea'rd argtunent of couns~l, on the motio~ made at ill~ last tern1 of tl1is Court. to set aside the verd1ct of the jury in this case, and having fuliy considered the sa1ne, ·and being now fully advised cloth overrule said n1otion, and doth refuse to set aside th~ verdict of the jury.

It is thereforEl considered l,y the Court that the plaintiff r<~· c•Ter against the defendant the sutn of $3,500.00, the da1nages a.~sessed b~r the Yerdict. of the jury, in this ca~se, with legal inter­est the1·eon front }lay 10, 1H27, until paid, and hi~ costs in this behalf expended. ~o the jndg1nent of the Court in overruling said n1ot.ion and giving judgment for the plaintiff, the defendant exoopted, and the defendant expressing a desire to. apply to one of the ~Tudges of the Cmu1. of Appea.is of Vil•ginia, for a 'vrit of ert•or in this cuse, execution on this judgment is stayed for nine­ty days (90) f1•om the ri~ing· of t.l1is Court.

And now ~•t. this flay, to-wit: In Vacation of the Circuit [x] Court on the 17th day of Octobet~, 1~27, that 1Jeing the

~arne dny and Jear fi.'rst lterein 1uentioned.

A. L. Smith, Plaintiff, vs. Order.

Norfolk & )VestPt·n Railwa~1 Co., Defendant .

. This day came the parties by their atto1•neys, and tlte defend­ant presented itR certificates of exceptions "in this case, which are numbered from I to IV, inclusive, due notice of the presentatica thereof having l1een given to counsel for plaintiff, a.ud prays that the sa1ne may l>e signed, ~ealed and enrolled as part of the .record, "~hich is accot•diugly done on this the 17th dav of Octo­ber, 1927, and. 'vi thin 60 days from the date on 'vhich final judg-ment in this cnse wa~ rendered. -

Legal notice of the presentation of the certificate mentioned in this order is acknowledged.

~. L. S~IITJI. By .JOT-IN 8. DHAPBR., Atty.

(1] CBR'f.lP.I CA'rl•~ NO. ·1.

-· ~'he following evidence on behalf of the plaintiff and 'the di­fendant, respectively, as }lereinafter denoted, is· all of the evi-

: .-;,

25

dence that was introduced in the tria I of this ca.qe.

EVIDENCE IN'fRODUCED ON BEHALF ·OF PLAINTIFF~

{3] . .A. IJ. Sl\IITH.

.A .. I ... Smith, I>laintiff, sworn.

DIUECT JiJXAl\1INATION'.

By llr. Draper : Q. \Vhat is your name? .A. :\.. J.,. Smith. Q. How old are ,von? A.. I "~as born Septetnl1er 9, 1860.

. Q. How old would that make you now? A.- 66 years-old.-Q. How old were you when this accident happened? A. 65. Q. · How long ha\'\~ ~7ou been in the emJfloyment of the Nor·

folk & W P.stern Railway Co.? A. Ho'v long have I- been in the employment of the com­

pany? Q. I say bow long have you been in the emplo~,nent of .the

Norfolk & 'Vestern Railway Co.? A. l. went into their employn1ent in 1888 and then I bought

a farm and 'vent on it and w·as. there about eight or ten years, . hut I ha,~e worked for them in all about 25 yea.rs. ·

Q. In what capacity? A. Brakeman, freight conductor, <m.rpentet, and carpente1•

fore~aJt · Q. .Brakeman, freight conducto1,, carpenter and carpenter.

foreman? ·A. Yes, sh~

[4] Q. How long were Y9tl. a ft•eight condnctm·? · A ... About· seven. yeat•s.

Q. Are you familia~ 'vith the 1•ules of the company govern­ing the moYe1ne11t of trnins?

, . A. . Y f'.s, sit·~

· Q. · '\Vhat 'vet·e, Y~l:J:.d~~1g on the. date of.t.hito; inJury, in 0~­tober, i925? 'Vhat en1ployn1ent did you have?:. _ ·

A.. I was perfot•ming the functions of )1 carpentet• fot•e­.man.

26

Q. In performing the~e fnnetion~ ho'v 1nnny men did you have und•~1· your cha1•ge?

A. _t\.s I recollect it, there waR about Hi. Q. 'Vhat ivork were you doing~ 'vhnt were ~von workinr:

at? A. At. Bridge 250, wlJich is jur.:t at the east end of Hrnnite

Siding. Q. liow far w·e~t of Pnhl!':lti ·? .A. 2 1-2 or three milP:-:. Q. Where did youl' ~nen and yont·self ~tny on the nig~1t he-

fore this accident? A. "re st.ayed in <>amp e~u·~ OYN' nenr tlw frei~d1t station in

Puiaski yards. · Q. IIow would you and yont• men go haek and forth from

Bridge 250 to your C<llllp car:-: at Pula~ki·'? A. With n motor· cat· and t.rnilet·.

Q. 1Vhn.t kin(l of.n motor car? [5] A. A ~..,airbnnk!':-:\[orse, I think wa.r-; the name of it..

Q .. 'Vas it. tlw n~nal motor <>nr? A. Yes, sir. Q. Where did ~;ou n~~Clm hlCl yom· <'J"ew on tlw m2rniug of

this accident? A. On the. siding~ ~on t.h of I•ntnski freight ~tation. Q. On the siding: ~on th of Pnin~ki fJ•eight ~tation? A. Yes, sir. Q. How close to that. :-:iding· i~ t.hPt·e a. railroad telephone? A. The plionc, t.hP rl ispntr.her'~ p_hone, h~ just. ea.st of the

east end of that Riding. · Q. About where in r(~ference t·o t.lw citr g-nra.ge ove~ here.,

is it located? A. Not very fm·. Q. How far wus it f1·om where ,von harl your nwtor cnt'

and traiiet• that Inorning'? A. Possibly 100 or 1.50 yards. Q. After asseml1ling your men there. "~hat. fl.id ~~on flo witlt

reference to going to your work? A. After they got there, 1 cnn1e down this "ray and w·ent

to the freight station to see if there "~as any n1ail or comnn1nica· · tion of any kind and then I went back to the phone and took · do\Vn the receiver and ·wnited until Bristol yai'(l reported

[6] their tonnage and then I called the dispatcher in 'the usual way. ·

27

Q. Did you· get tbe dispatcher? A. Yes, sir, I got the dispatchet~, the dispatcher answered

1ne. Q. \Vhen the dispatcher answered, what did you say? ·· A. I said "This iH A. L. Smith, \:Vest End Pulaski, carpen­

tel· foreman. . I· w~nt. to go to Bridge 2~0, with a n1otor car and · trailer,'' and had I :o;toppeti there thu.t would have been amply sufficient. ·

Q. vVha.t did you do then'? A.. Inastuuch as No. 52 was about Granite Siding up there

I said "''Vhere is 52, 'vhat have you C!Olning east?" Q. You said ''\Vhere is 52'~-lmt ~·ou ~fi'rst ·infortned him

that you were .A. L. Stuit.h '? · A.. Yes: sir, tl1e carpenter foren1an. Q. And you notified hhu tl1nt ~-ou ,,~anted to go with your

crew tQ Bridge 250? A. Yes, sir. Q. And you ~a-id that woul(l Jun-e been sufficient; why did

~·ou say i.bat? A. Because when T told him where I wante(l to go it 'vas

his absolute hu:-.;iness to tell me what: he had (~oming and to glve . me the lay-out of tlw truins; that is his business and not mine.

Q. vve are not toneerned w"itli that. hut. "~hat did you ask hiln then? '

[7] A. I asked hin1 wltet·e No. 52 wn~.

. ·

(~. And what lLid fie tell you? A. l:le said 52 would be at G1•ubb fot• No. :1-1. Q .. 'Vhat train is 52'? A. That ls a ti·ain thut is due there about 7 :20. Q. A freight or pitssenget• train? · .. A.. .A. freight train . Q. And he told you that No. 52 would 1neet 41 at Grubb? A. Yes, sir.

· Q. 'Vhat did you then ask l1im? A. Someone broke in ancl used the phone for a little bit

and No. 41 passed, which kept 1ue from hearing at that time, and when I couid liear ·bun again I said &'Well, what have you to say/' and he said "41 ought to be by tl1ere now," and I said "Yes,

. sii·, she ,is hx .l1ere: and I am gone," and I took my fingel.· off the . butto1i *iltf Ji~teued for quite a hit to see if he had anythiug else . tb" saf and~·inasniuc11 UH he didn't Sily anything inore, I hung up

the receiver and went on. Q. ·Did he mention a.bout second No. 90 at all?

. A. No, sir._ Q Are you positive of that? A. He said nothing about second 90. Q. Go ahead a.nd tElil the jury in y()Ut• own way your full

conversation with 1tim on t lw t oecasiou '! · ($] A. vVell, I went to Lhe phone and took down the re-

ceiver and after listening for quite a wl1ile to Bristol ya1•d reporting ll~r tonnag·e to the di~-pu~tcher, I called t•1e dis­patcllet• who answered, and I told him· "'TI1is is ~\.. L. Smith, W (~st. End Pulaski, I want to go to Uridge 250 'vitll a n1oto1· car a·nd traih~r ~iud al)out 1.5 tnen, Wl1at lmve yon cmuing east, where is 52,'~ iw.tlilllttch ali ~2 \':as due at Granite Siding, if I bad situ­l)ly said "'Vhat. have yon ?~'t it would have been absolutely suffi· dent.

By )fr. GHme1·: If your Honor please, "re obj~ct to tltat.

By tl1e ( ~ou rt: That i.~ not }WO]Jer, that ~as all bee•1 g·olle over.

By }fr. Drnpet·: Q. 'l'ell the jury what you ilid then? A. I went to the west end, to the siding on 'vhich tb~ camp

(:at·s wel'e ~tanding, and I told tny crew exactly what the dis­patcher had told me, and ~aid "Let'~ go:·

Q. \Vhat did you te11 tit~~ crew?

. ny MI·. l~cgl~y: \Ve objeet to that, if YQUl~ HQllQr

pleaRe. A. 1; told th~ crew-· -

!Jy lVIr. l{egley: 'Ve are objeet.iug t.o tluit ..

By Mr. J)raper: Just one minute, I· would like to be heard on that. · I tJ1ink tllat w<;>uld be a .part. of the res gestae.

By tbe Uourt: \Vbat lit-. ~mitll told the crew with ref­[~ ~ er,~nce to ltis cony·ersation on the telephone with the tloain · · · dispat.chet·, wottld be hea,fsay evidenet?7 pure a.ud shnple,

<is the Court sees it. ~ · ·

· . By ){t• Drapet·: The n1a11 had just leU /t~dJ~ and goes right .stt·aight and tens the ~rew. wbf.lt· ·ae''Juid.' hea.rd

,._ .. ! ;._,

-------------. ----...

r; 2f}

over the telephone~ and it certainly seetus to me that it is a part of tile l'es gestn:e. Het·e is a n1a.n 'Yalking-right straight. fr01n the operator or dispatcher and telling tlie Qpera~tor oi the tnotor car what occurred, and we think it is certainly· propet• in this case. I don't want the language, but I will ask hin1 this question:

Q. vVho operated the 1notor car? A. \V. C. Sisson. Q. ]fo'v long aftm· lcaYing the telephone. did you start the

1notor car? A. Possibly five minutes. Q. \Vha:t did you tell the operator of the motor cat• as soon

as you got there'?

By Mr .. Gil met•: "\Ve object to that. A. .l told lliln--

By Mr. Gihnm·: 'Vait a ntinute, I mn objecting to that.

By Mr. Drape1•: "'ait a n1inute, 1\Ir. Stnith.

By the Court : Do you gentletneu cnre to argue tile question?

By M1•. Kegley : ,;v {~ do not ca1·e to at·gue the question at all.

By the Court : I n1ust sustain the objection, it occurs to [10] u1e that it is J1ear~uy.

By lir. DI•ape1·: And we except and aver fot• the bene­fit or the t•ecoru, ot· I win just ask tile· witness to state 'vbnt he dld state to 1\.fr. Sisson.

Q. Just answer the question for the benefit of the record, what <lid you tell M.t·. Sisson?.

By Mr. Kegley: If your honor please, possibly- the jury had better hf~ out when he rnake§ that statetnent.

By the Court : I can instruct then1 not to consider it. However, I can do eitlter you desire; just step· out, gentle­nlell of the jury.

(Jut•y reth·es from the court room.)

By the (Jout·t: Mr. Draper~ ltave :nm an_v autllot•ity for ~ y~ur proposition·? ·

30

~·<->::· . By Mr. Draper: Not now, but I think I can produ,~e ::;: :~Jthem.

\ · · · .:;,: ' By the Court: Go a-bead then and let him ~puke his art· · :": '.:::· ~swe1· _out of the presence of the jury.

A. I told lit·. Si~~on tllat the dispatcher said No. 52 'voultl be at G1•ubb for No. 41, lefs ,go, everything else was gone.

~y Mr. ])raper: '.;·._~-~ :- ·(l. Everyth:ing elHe 'vas gone?

.A. Yes, sir. Q. Iiad you talked to anybody else between the thne 'of

,.Je~:r\,iug· the phone and telling l\It·. SiAson this?

[11] A. No, sir. (~. And you say this was five ulinutes afterward~. A. Yes, Hir, it. must have been about tha.t. . ·

By :1\Ir. Drapet·: 'Ve l';nbmit it is proper and relevant.

By the Court: I think he ha~ a perfect right to state 1vhat he had done and wl1eth~t· or tiot they left and went itp

~,. the rallroad~ J think t hnt is absolute})· admissible.

By Mr. Draper: And what he said iH admissible~ and I .. _, .. would like to sub1nit au authoritY.

"::!~I •· /• • : , «.,.

By the Uourt: Of course, I ""oulq be glad to !':ee it~ bufi I think tllat anv statement made bv tlli~ witn.e~~ out of

.,¥ ~;=~~bourt and not t;~~der oath is liear:o.;a;~.

By Mr. Draper: lt is not lleat·sa~·.

~· ' 'i: \,• By the Court : '¥hat is it?

By ~ir. Drape1·: I am not a~king for the language, hut I ~·. u\:~-~n asking the witneHH this question "Did you receiYe infot··

· 1uation ft·om the dispatcher,'~ and his ~~1u;wm· will he ••Yes~ and I acted on thnt infortuation," and then l would ask him

·.• ·, ii: f ·~~Did you conuuunicate that infor1uation to the operator or the <~nr,'' and he would say "Yes," and that iK the effect of

. ,~ ._.·::it, and it is certainly proper evidence. --·-·: By tlie Court: 'l'Iitn when the operator of the car cn.me

on y(,u wo.uld ask him if he told hin1 tbat ·?

lly ~It• . .Draper: Yes, sir.

By the Court: .. A.IH..I. 'vhy isn't that hearsay?

By Ml'. Draper: It is uot repenting the conversation

[12]

31

YCl•hntim~ :t L~ ('.OHUUUllicn.ting inforntation, and acting OR information mul it eliminates it from tlie hearsav rules.

~ t.l • ,.

By the Court: l will pernut you to go this far, a·n.lf: ··r.· would like for you to sho"~ me some authority on this, but r will pet·mit. you to ~how that after llr. Sntith's convers&:tidri; .. "·ith the h•itin dispatcher ovet· the telephone that he 'vent to l1i~ <'l'ClW~ mul that the~· got on this hand cnr and w·enff::oii~ up the J'O;.ul.

By ~ir. Drape1·: Ca.nnot I prove that he c~onununi~t.cil/ thi~ 1nformat.ion to t.lH~m, 'dthout detailing the informrttfoti? · ·

. . ,· ~

By ~Ir. Kegley: It is not a question of what the m9to1~ .. car men di.d, hut it il'l H question of what this man did~·. ·

By the Court: I will permit yon to slww 'vhat 'vas Uone; 1

hut. l will not permit the conYersntiou; Ho,vever, I .:.,vill give you nn opportunity to show n1e authorities on this 1natter. : ;. : · ·

lJy ~Ir· Keglc.ay: l\Ir. Smitll~s statelnE'nt that .everything el~c was ~on<' wa:-: hi:-: own statement.·

Br the f~ourt-: Ye:-;, sir.

B~· ~h·. 1~egle~·: 'rhe dispatcher had not made that state-Illent. · · ~

By \Vi.tnes~! ¥ou heard Mt-. 1\:egley, I presume, make the ~tatement. that I knew there was a second No. 90?

'.,·+

nJ ~Ir. Kegley: 'l~hat was }fr. Gihner made that suit&' menr, in his opPnint!.' state~nent to the jury .

. .:\. :r heg your pm·don. T thought it 'voR you.

By :\Ir. Dt•a.pcl.': .Just let him answer that question.

[13] .\~. T had no way of knowing there was a second•·-Nb. 90 unless I set up n 1.1 night..

By ~fr. Rhudy: . . Q. lie asked you if that was your statement or some~9dY.

else~s statement. tlust answer t~e question 'vithout argui~jfit~: He asked you if that ,\~as ~~our r.;tatement or son1ebody else's sta ten1ent.

A. That. \\~as n1:r statement. Q. ·rhe dispatci~er did not state to you that everythin~:el$e

had gone_, did he?

32

·A.~ No, -sir. By Mr. Draper: .

Q. Just tell.;igain, in your own way now:, what you told Mr. Sisson that the dispatcher told yon?

.· , A. I always tolrl ~he 1nen as nenr w·lhtt the dispatcher tolrl 1ne as I could repeat. -

Q. One n1inute, without stating 'vhat you always ·did, please stnte on this Qccasion what you told Mr. Sisson t.hat the di.spatch{\r told you?

A. I said the <li~pntcher ~nid No .. 52 would be a.t Grubb for No. 41.

Q. You told hiln that the dispatcher said that No. 52 would be at Grubb for No. 41?

.;t\.. Yes, sir. (~. And then what did you add in yout• own language?

[14] .A. "EYet•ytbing else is p:one."

j .By the .Court: If t.hat is the extent of it, I 'villlet it go in, because :'ir. G1lmer said that the dispa.tcner told him he would ])e there fo1• No. t! 1.

· lly·1\'.£r. J{egley: There is no conflict over the fnct that that infor1na.tion wns g·iyen l1im.

Oourt take8 a recess until 1 o'clock p. m.

1\'IOND.A.Y, }fAY 9th, 1927. ·

Afternoon Session.

A. L. RMITH.

A. ]~, Smith, still on the 'vitness stand.

DIRBCT EXAl\IINATION (Continued).

By 1\lr. ~Draper: Q. Before dinner you had testified that .after having the

conversation detailed "'ith the dispatcher, tliat you went to your moto~car? · ·

A .. ·Yes, sir. . Q. 'Vhat did you r-;a.y when you arrived at the motor. car?

. A. That the dispatcher said "52 'vould be at Grubb for No. 41, let's go, everythitig else was gone.''

Q. 'Vho WclH in ~~hnr~e of the motoe rar at. that. timP'! A. C. 'i\r. Sisson, Cliff Sisson. Q. You J·PfCl~T{ld to ·xo. 52 heiug at Grnhh. wh:1t til'H~ wn~

Xo. 52 ~ehedu!t~d to .·u·t·iye lwre? . ·--A.· -;\:bout ~ :-20 <W 7 ::~o~ at. G-ranite Siding.

Q. "'hal· time WH8 ~e<·ond No. no seheduled to m·riv·~ ht~t·e'! .,.,-. A. A hont. 12 :1 r; n1· ~olll(-'Wlwr~ n long- the1·e. Q. At night? A. 1"ps, ~ir. X o. HO. they ran tog·et-h~r, they may run dOl'!(~

togethet·. Q. Jlow long has ~econd "So. no heen on the schednle'?

A. 'flwre waR nn ~econd No. 90 on thr. schedule, it [lG] wet~-; ·No. !JO.

Q. 1Iow long lwd Xo. no heen Oll the Rehedule? .... \. 1 couldn't t.<~ll you thnt. Q. Du ynn know :\f1\ Kel'r. the <lispa.t<'her? ..--\. Xo, Hir, not persona 11~· .

. Q. fr(~ hm; heen "·ith the ra.ilroafl company for sometime, har-;n~t. he?

.A. f;os:-:ihly. Q. :Xow aH<)r mnking tlw t•emark •·Cinn(~ on, let~R go/'

wh(lt'e (lid yon p:o? A. 'Ye went "~e~t to a hont near Bridge 244.

·Q. Yon ~ny )fr. ~i~~on ·":--a~· runnin~ the car? A\. Ye~, !-;it·. (.~. .\hont whnJ !-;peed WHR lw running· H? A. I "'onlcl ~a.Y a hont 12 miles an hour. (~. YV'Hs 1"l1at an exeessive speed, or not·? A. ·xo, sil'. it would he impossih]e to ex~eecl the speed up

t.lla.t. mouutain_. · · Q. A.s you np]H'O;telwd Br.idg-(~ 244 what did ~Yon Ree? .A. '"'~ ~aw a. train f:oming, coming east.. Q. .Hen,· far \V(~st of' yon war-; it when yon ftr!'lt ·saw it'! A. It c·.onldn~t luLYe heen over 900 feet. .. · Q. Difl it hlow lwfm·c• ~~on Rfli\~ it~ or not? A. :No, sir.

Q. ..:\fter· yon ~a\\' thi~ freig;l1t train-wns H n single [J7] ot· <lonhl<l tt'H(·.k there?

A. Single t.raek. . Q. You were going· west and in what direct.ion was (-.be

ft·eight tJ~a.itl gr•i.11g? · · A. East . .

34

Q. What did you do after you saw the freight train conl-ing east? ~

A. We Httempt~d to stop the motor cat• before we got to the approofeh of the bt•idge, but it' appeared like the train and the motor ca.r might meet Oil the bridge, and I stepped off on the left and son1e of the other n1en that 'vere with me steptred off on the right.

Q. How many men stepped off' t.he motor car? A. There was 10 or 12. Q. How many men stayed on until it. crossed tbe brid[!e? A. I am told about four. Q. \Vhen you stepped off it, what occurred then? .A. I lost m.y .footing nnd pitched into the bridge attd wa~-;

thrown to the ground below· . . Q. lYhy <fut you ste1i off the nwter car at that tin1e?

A. 'l'o keep from 1neeting the traln in between two upright sills a.nd to giYe the nH~n who '\Vere on t-he c~n· a better ehance to save their Jives.

Q. llow fa.t· did t:he n1otor ca.t·· proceed after you [18] ~tepped off it befot·e it collided with thi~ fl·eight. train?

A. About 40 or 50 m· n1a~vbe GO feet. Q~ Did the t1rain f4trike the mot{)r car? A. Yes, sh·. Q. Did it demo.liNb it., or not? A. I w-as told it was demolished. Q. Wheit )~on ~t(lpped off a.nrl lost you1~ footing, how far

did you fa.ll? A. Some eig·ht or ten feet. Q. What portion of your person dr ho<ly dld you Rtrik(l

the ground· on? . A. I couldn't. teH yon thnt: I must have ~t.t·nck (Wett.y

near all oyer. . · Q. Were Jon renflererl nnconsciou~, o-r not? A: Yes, sir. Q. Where did .von regain conficiousness? A. Down here about Pulaski. Q. Ho"~ long aft~•· the accident? A.. I cou)dn!t tell von that" exacth~

· Q. . I know· that ~"o~ rlon't know ex~~tly how long you we1·e unconscious,. but about what time in the morning· was- tbnt? ·

A.. Possibly it was an hour. · Q. To 'vbat. physician's office were you taken?

A. To Dr. Diver's. [19] Q. 'Vhat did Dr. Divers do ·to you?

A. lie dressed and sewed up the woundR. Q. Where 'vere those wounds'! A. On 1ny scalp an!l1ny lip a!nd n1y left knee, there 'vas

about seven abrasions I believe. Q. No"'· let us htke them up in the order, what kind of a

'voun(l 'vas inflicted on your scalp'! A. He s('wed that up. ·Q. Do you know how many stitches he took in it? A. No, <.;ir. I eouldn~t tell you how many Rtitches. Q. What kind uf a wound 'VaH inflicted on your lip? A. That 'vas a wound that 'vas cut through,the lip, to the

teeth and it knocked one of n1y teeth out. Q, It kuo<*k.ed one- of your teeth out? A. YE.'s, sir~ and I think he took three stitches in that. Q. What other part of y()nr body was injui•ed? A. My whole body was injured, but a.t my back and right

~boulder was injured 'vorse and 1ny right arm. Q. \Vluu: effect djd it bave on your right shoulder and

right a·.rm? A. I cou1dn't tell you) but it was son.lething terrible hap­

pened to it. but I have never l>een ~1ble to determ1ne Just what it wns or to haYe any physician determine just what it W'as.

Q. J-Ias JOUr baek or spinal coluntn or your shoulde1• [20] been X·rayed?

not?

A. No, si1·. Q. vVhy? A. Dr. Showalter told me it would be too expensiv~? Q. Now you were taken from here to what point? A.. TG. Christiansburg, to my home~ Q. How long did you remain in ~rour home there? A. Six or eight weeks. Q. Did you suffer much dul'ing that six or eight weeks, or

A. Yes, sir, and I haven't stopped yet. Q. What 'vas the character ot ymu· suffet·iug during these

six or eight 'veeks? A. I had pain neat• tlte spinal ttegioJl and through the

t•ight shoulder and then the rigllt elbow gives me- excessive pain and lots of trouble and these nw.o fingers,: they go• drod almost every night.

36

Q. ..A.re they partially l'a.ralyzed, or not? .. A. I dor..'t know whether ~~ou woul~· cnll i~t paralyzed ot·

partially paralyzed or what you w·ould call itL I 'vork them in the nlot·ning until I get feeling enough in them so that I can go through the dny with them.

Q. 'Vhnt part of :ronr <11'111 waH hroken? A. Rig·ht at the f1 llto\\~.

Q. \Vhen was it tliseoYered thut the elbow was broken? A. Eit.IH~r De<·Nu her l2t.Jt or .Jann<H·~· 12th.

[21] Q. .fs t1wt m·Ht stiff uow, or not? A. lt is p~it•t.ia11.'· :o;tiff mul extremely tender and ~en-

sitive? Q. 1-J:c.n·e ~·ou got any ~tr·ength in it?

·A. Ve1·y little. Q. Yon J·efeJ·red to yont· leg awl knee? . A. :J\fy left knee waH <·ut. nnd lu·nised and it hns never got­

teu·'o,ier·rft. Q. Does t1tat·. xt i11 Hltow thet·<\ m· not. (loe:o; it sti 11 Hlww· the

. nhrasio.ns. ot· not'? A. Nothing- hut i'Jw se.m·. Q. IIo"· long is the ReHr ~r~·t·o~-:~ yout· lotee there? . A. . PossihJy Jwl f an ind1. · Q. :I R that _vonl' left leg-? A~ ·.Yes~ siJ·. -Q. 'Vns yonr lert foot hurt m· noi·? A.· Yes, Ril'.

Q. J)esr..I·ihe ttr the jnl'_r how that was hurt? A. I thongltt my toe wns ln-olwn, T. <lon'fl~no-w· whethel' it

wa~ or not. but H Iws never gotten oYer it.. Q . .' Is your left leg ~till W(~H k, or not? A\· ·.-Yes, ~i1·. · Q. 'Vhat o<·enpcd·ion wet·p you (mg·ng(~d in at t~.e tilne you

w c~ r·e Jnn·t? .. \. I wm; cmgaged aH a t'.<ll1'enter fm·emn.n.·

Q. 4 ·\ l'P. yon, 01' ha \'<) yon heen ah]e to do nnr W'OI"k

[2:!] ~iuN .. this aeeident. auy HHtnua 1 let hor? A. Xo manuul Iahor.

· Q. .Do you sti1J HnffN· ft•OJJI it m· not.? .A. 1:--es, ~ir. . Q. 'l'ell Uw jtu·y how~ ot· in what respeet?

· .A. ] :-5Uffet· hot!t da~· n nd night. ·Q. · 'Vhere nbouts in your body?

37

A. The prineipal suffering is in the region of nty spine, between the ;;;honlder lJlades nnd through the rig·ht shoulder and down the 1·igllt m·nt iuto the l~ft leg, that is stiff and son1e­times I can lJ(~nd it aud :-;ometimes I cannot.

(!. So1nething has heeu said about your having au acci­dent ~n the 12th of· August. vVhere did you have that accident, or in Augnst?

A. _I nerPr had any aecident on the 12th of August. Q. r mean ht Ai1gttst sonwtime . ._\.. You )l)~an .thf~ 20tJt ;?

Q .. Yer-;, ~1ir, any time iu .A.ugust, fr~m the Lst to. the last'l A. I reeoy~red ft·om that·. Q. '~Then' did yoti Jw ve that aeeident? A. Over H t l(im lm l1 t.on Lime l{iln Bridge. Q. 'Vlw t }J<ll't of your person w·as injurd in tltat accident'!

A. '.rlw haek of my. neck and left foot. [~H] <1. Jllease state wltether or not yon had fully recovered

frmn those . .injuriPs nt the time you were hurt? A. Yf•s, siJ·. Q. liow long h<ul you lJeml at 1nwk when you w·ere htu·t? A. About seven da.ys. Q~ 'VhaJ wnH your phyl'li.eal condition on the day you ·were

hurt"? A. I: could Jw.r<ll~v explain just wJwt it was, it wa .. ~ fair fol'

a ltlan of rny nge. Q. J~air~ fm.· a HlHH of your ctge? .A. Yc·s, siJ·. Q. After ym~. w~re lttu·t \vhat .ha:-; been your general physi­

eal condition? .A. l ·Jw.\'<"'u't heeu. a11y aecount f:.iinte~ up to the present..

i ime, and T don~t know thnt I will be or when I will be. c~. Do you feel any gradual hnprovmnent, or not? A. 'rerr littJe. Q. And "\Vlwt effe<'i~ han~ thm;e injm·ies had on youi· nerv·

oul" system? A.. ~t h~~~ _n_uul~· H lH~J:vons wreek out of 1ne, instea.cl of !l.

~ st.I·;>iig · ·1n~u1. ' · Q. It lla!-' 1wulP :1 lWI'\·ous wreck out. of you instead of H

strong man? _A. ·Yes: .l-'ir. ·

Q. ~ow .a:-; fo tlu .. se injudes here~ srmwthing ha~ heen [.24] ~ilid nl,out yonr not saying ·anytl1ing about them.. Did

38

yo11 app1~· for a pension, or not, Oil account of those in· juries?

A. 1 c.lifl~ to the· prP~ident of the ra~lway company, 1-Ir. A. e. ~ePdl<.l~.

q. l helierc: yon _were put to work ut Christ-iansburg af· ter y.m l'e(•eivecl fhe~P injuries'!

A. Yes, ~il·.

Q. Atul nn :H'<·iclent. o<·<·nJ•red there; now was that n1anual labor, m· not'!

· A: lt was a joh thai yon could partially handle with one hand~ an<l T <~xplained to tlw Norfolk & 'Vestern physician, 1-Ir. }foonu;:~r, that it wa~ ~iYiug- nH~ great pain hnt. l was doing the best I could.

Q. 'Vhat time \VCI'(' yon vut to work <lt UhriHtianslnirg? A. Q. A. Q.

J~"'ehrunry 1st.. liow long <lid you work th<)re? .A fraction over a month. An aec.ident oceurred there at Clu~istian~burg a.t ·tltc

<'l'ossing wh.i1e yon wrl'e at work? A. Yes, sir. Q. After that ;wei dent you we1·e discharged, weren't you? A. Yes, sit·.

Q. And haYe yon heen able to flo an:v work sin(~e, or [25] not'?

A. .No, sir. q. Of an~v kind? A. Very light work, fol' part of the time. Q. 1 n1cnn ~·iuce you were discha;rged? A. No heaYy W£n-k at all. Q. At·e yon ahl<~ to earn anything? A. No, sir. Q. Are you a man of any property? .A. No, sii·, nothing aside frmu the dwelling that I li-ve in. Q. Are you a mmTied man, or not.? A. Yes, sh·. . Q. Do yon I~<.l<·eive any ~np])Ort from ~vour ehildren, or

llfJt? A. No, sir. t!. Something ha~ been said a.bont your not 11:1aldng -any

elaim for these injuries until Septmuber, 192(>. '\Vhen did von f.'\fr;t consult or employ a lawyer in t.l1is case? "'

A.. About }[nl'(·h~ 1 H26.

-----------------------------~

39

Q. I believe ~-;nit 1n1s hronght. in Septe1nher? .A.. Yes, sil·l Q. Ho\\ ... 1nuc11 were you earning at tJ1e thne of ~~our in·

jury, what wete your wages? A. $154 a n1onth.

Q. 1Io1v 1nuch longer '"tronld you ha.,re had to work tu [26-J have be~n pMisioned?

A. About :five years, not quite five years. Q. Have ~~on received any pension or anytlfing?

By ~Ir. :Kegley: .Just one minute. 'Ve· n1ove to strike tl1at out on tl1e gronn<l that it iR not propet· evidence on whieh to hnl'le -nuy rlnmages, if <lmnages are found.

By the Coul"t: I. do not see how' the fact that he would possibly l)e pensioned in fiye years has anything to do with it. ·

By l{I'. Dr·aper: l thought it l\ras relevant, but i:f there is any dou l)t ahm1t it. I "rill w'i thrlraw the question. _

By the nonrt: All right, Rtrike it ont..

CROSS EXAl\ITNA'riON.

By M1·. GHmet· : Q~ :Nir. Smith, you etnplo~red yonr a\ttorney ·to· file your

clain1 in this case when? A. Al>ont }fare.Ji, 1926. Q~ What t.hne in Mal7Cll? A. I an1 not posith·e about the date. Q. "V\1fiat attorney did you ~p~nk to a h(·lnt it, in Ma.r-ch:'t .A. .r. fi. Rhudy. Q; vVas that wl1ile you ,,~eN~ acting a~ ":"atchn1an · t:tt

Christia.nsl,urg? A. I thinlr so.

Q. You thin]{ RO? .

[2·7] A. Yes, sir. Q~ Don't you know it was· after ~von were dischar•gr-d

at. Christ.iansbut•g? ~. No, sir.-Q. Had you ever said anything to the railroad comJ-.a.uy

prior: to· yon1·· disc"Jmt"ge· rit Christiansbttrg· a hout any cJa.im here?

A. Yes, sir.

40

Q. Or that they were liable for it? .A. I 1nacle application to l\fr. :Xeedle~. Q. You made applieation for n pension? A. Yes, ~ir. Q. But I am asking yon if .rou e,·er pi .. esented a clahn fiH'

dmnages to the railroad eompany prior to your d-isr..harge nt Chri st.ia ns lnt rg?

lly l\lr. ])rnper: ""e ohjert to the question l1ecan;;;e he hrought his snit in tlw :'lt.atutory period.

By the Court: 1 don't Ree thait it has c1nything to do wi.th this ease.

By Mr. Gilmer: l jm.;t wanted to show the good faith of this man n.nfl that he never pre.sente(i any claim at n Tl, hut afterwards ae(·ppted emplo~~ment, and I think jt h:: per­tinent on the q nestion of hi:-; injury for the fact that ile hnd

-nwde no claim prior to his cliscluu·ge as we expect to show that he m~ule ·no c•.laim whatever prior to his last (!;~~­

[28] r.hargc and tlwt would go to the fart that tlw railroad company was in 110 way 1 iahle fo1· his injurie~ or for rlti:;;

n.cc.ident, or thn t lte thought so.

lly ~[1'. Dt·nper: l think it i~ entirely irrelevant at1.J improper. ~A man doel" not hnve to make a clailn aud n:~•·r often does not. makP a elaim~ hut just so a suit is brought." "·ithin the :J ~ mont.hs period nfter the injury= is all thnt he is suppm;ecl to flo, and tlwre is no moral, no Iey:al or no el1~­ica.1 obligation on the pinintiff to go and l>eg the defencian!~ fo_r money or a r.laiiu~ and then uecause they will not giv:~ it. to him, why :-me. 'J'he Coul't is open to hin1 from the Yery minute of his injtn·)· an(f eontinues open to· l1im to pre-sent ltis claim fot• 11 is injnriP~.

Ohjeet io11 ~u~btitw(l. T>efendant Pxcepts.

B,v 1\It·. Gilmer: Q. Now· you han~ J'(~feri·ed to an accident there at the

Ohri~tinnshnrg: r.rossing-. Yon "rere Pmployed tliere, were ~ron not.? .

..t:\.. Yes, s i 1'.

Q. You wet·e in tlw employ of the ra.ilway company. thet·l~ for• ahont a month?

A. Yes, sir·. Q. 'Vhen this accident happened and after the accident

41

hap~ned yQu were discharged? That is true, isn't it?• · A. Yes, sir.

(29] Q. Y O\l have stated that you ma.de an application to Mr. Needles for a pension. '\Vhen was that?

A. My recQllectiou is that I made applic.ation to hhn on two or three occasions a:nd the la.Rt one possibly was about March, 1926.

Q. Can you show the ju.ry where you n)ade any ~pplica· tion for a pension?

A. I think so. Q. Prior to ~your diseharge on account of the Christians·

b~rg accident? · A. I think so, and I can prove it by the General Foreman

of Maintenance of 'Vay, I made it partially through him. Q. 'Vas. that accident at Ch:ristiansbu,t·g due tQ any of

your incapacities from this accident? A. Yes, sir. Q. !Just tell the jul\\. ltow·? A. How? Q .. Yes, sir?

By Mr. Draper: 'Ve object to that. \Ve have prove~1 the accident and diRcharge and I <lo not think it is proper to go into details.

• By the Court: I <lon~t think it is proper to go iuto it at a.ll for that matter, but :ron \Vent into it.

By li1•. Giln1er: Yer-;~ sir, and his n1an said that he told one of the raih'oad physicians that he 'vaR doin~ the best

(30] he coulc1 and couldn't. do the worl{ therP-.

B~· tlte ~onrt: I ""ill overrule tb~ objection.

l,laintiff excepts.

By Mr. Gihner: Q. No""~ I "~ant to know if that acci<lent at Christia~shul·g

""as due to any incapacities tha.t you !'4uffered by reason of the accident of Oct.ol>er 6, 1925?

A. Yes, sit~.

Q. In what respect? A.. Because of the fnct that it retarded my tnoveillent and

I cQuldii't 1uove as q nick If ~"ou will allow· me to e~plain, I "\Vas looking out for the Rafety of the Blacksburg train, a·nd al­lowed tl!is pusher to get tolerabl~,. close before I sa"" her and

42

then I could not manipulate that gate quick enough on account of the slow movement and my incapacitated condition, to get it down before that pusher got through.

Q. On account of the slo\v n1oven1ent of what? A. The slow movement of tny body. Q. You couldn't tnanipulate it because of ·tlie slow mo,•e.

ment of your body? 'Vas there anything \vrong with t.he gates?

A. Y.es, sir; the gates 'vorked remarkably slo,v. Q. Do you give t.hat as a cause of the Christiansburg nc·

cident? .A.. Repeat that question, please.

(31] Q. Do you gi\re that as a cause of the Christiansburg accident, your failure to lower t.hose gates-in time?

A. Abs'olutely .. Q. '\Vhat sort of a lever do you \\rork to lo,ver those gates,

ltow does it work, sho\v the jury how it works? · A. It is a hickot•y lever. Q. Ho\v does it wot·k-back and forth or up and down? A. Up and down. Q. ~Just explain and show t{) t.he jut·y how· that lever

works? A~ It works up and down and pun1ps the air valve. Q. You worlt thfl lever up and down? A. Yes, sir. Q. You pump nn air valYe nnd that is wh·at low·ers the •

gate and raises it? A. Yes, sit·. Q. Just inoving this lever np and dow·n? A. Yes, sir. Q. . Did you tnake and sign n. statetuent in regard r.o ltow

that accident occurred nt the ChrisHnnshurg crossing, in regard to your part in that accident.? ·

A. I never made but one statement that I know of anti t 111ade that to Oharles Sumpter.

Q. Did you sign it.? A. Not. tl1at T 1\:now of.

[32] By Mr. Draper: Now if yo~u· honot• please, I think n 1 ~y have gm.e far enough in this matter. . ..

By ~r. Gilmer: \Ye have t1 right to test t.he credif>i!i;v ,of . t~e Witness. ·

48

By the Court: Of course the reason I let you go into the accident at Christiansburg was because :Mr. Dr·apE":r ,\·ent into it to some extent, but I do not think any of this e'Tidence is admissible due to the fact that it is entirel v separate and a distinct. transaction and has nothing to do with the a:ccident up here 'vhatsoever, o1· in any way tlun I can see.

By Mr. Gilmer: l'hat n1ay be true as a fact to b~ prov· ed, but all of these matters, as I understa,nd the.law, n r· ~ :ad· missible and anything that this witness brings out hims·~lf we can always c. ross exmnine him nbout it in ordet• f n tc.~t

the credibility of the witness.

By the Court: That is the reason I allowed you to gn into it, after Mr. Draper had gone into it and if it hadn't been for that I would not have allo,ved you to have gone into it. ·

By Mr. Gilmer: He introduced it as an evidence. of his incapacity.

By the Court: I suppose I will have to let thetn go on.

Plaintiff excepts.

By Mr. Gilmer: Q. I show you a paper here which seems to have been

signed by you. Is that your statement that was made [33] befo~e Mr. Sumpter? ~ou said you made a __ statement

before Mr. Sumpter, is that your signature? A. Yes, sir.

By the Court : I think there is a statute which ~ayk

that a witness cannot be contradicted by prior 'vri~~f:!l

statements.

By }[r. Gilmer: I will put the question in anotluw way. Of course, your honor understands, "re are not 1: r. fering the statement.

Q. I will ask you to examine this statement and see i. f ymt stated anything in there about your incapacities as having fHty·

thing to do wH h this accident? ·

By Mr.· Draper: We object to the c.1uestiou becaus·e Sw:.· tion 6216 of the Code Rays that they ·c.annot do that.

Bv lh!. Gil met· : J under:stand we cannot introduce it ·as pro.of, but we can always prove iu an~· caAe inconsistent statements nlade h~· .the witnesH.

By the Cout·t: ~l"his stntentent does not :seem t,o com~ '"ifthin. th1s statute. I urn Yery Rorry yon \\Vent into this other accident !JJ(~cnuHP. ~ don't t.hin'k it lbnf; ·anything to t:lo with this e.nse.

,Objection rwerruh-!d. PJa,intHf exuept~.

'lly Mr. Gi11ner: . ·Q. I will a~k JOn to examine that stateiitent which yo~

·say you signed, antl se(~ if )·ou said anything in there at all to the effect that tlw injuries you had su·ffered in the acci­

t[34] ·dent ,on 10ctohet· 6t.h, 1925, bud anytl1ing to uo ·with your J)art in that Clrrist.iaushurg aecident1

A. ·JI'lie oon1pany ·){new of my incapacitated condition and also Mr. Goldsmith, h<~ eame to m.v 1wuse and took lll~ ·state­lnent.

'Q. tr ·n~ked Juu if you made nn~y :.;tutenl<~nt of tltat~ kind in '·~ ••• ,'l11t. ri~ht there?

-.A. ·Of coursn ·I -didn't, ,l,ecausc they .know .it.. Q. Now I will ask ;you, 1\Ir. Smith, if you made any other

Htatement. Yon talke.(l about. maldng a Htatemeut to 'l\Ir. Gold­smith, and I wi1l usk you if you made any other .statmnent -ln res_pect totthis aceident-nt tlte.ex·ossing at Chrh;tiausburg except .tlle ~tatement you made in the presence of Mr. Snnlpt.er? If you did, J would hfl trl~'ll to know it.

A. Not.hiug· that I know ofJn·regal'd to-the accident. Q. This is the nceident we nre talkin~ .about. No'v I

would li~{~ to ask you to state to tlte jury if in this napm~ which . \you signe'a t·htht at the time~· of t1te aeeident, or on tbe verv day

tif tlie ~cci(ledt, 1\IIar~ll 5, 1026, if yon said anything in -there about having any defects or Jw.ving any difficulty ~in ··lowering .those,.gates with that !eYer? ·

A. No, :sir, •but the.r .];:new that. [35] Q. And you stated they also !]{nEnVIthat ~ypu ~we.~ un-

able to perform that work properly? ~\.. ·Yes,· ~ir, 'Mr. R. H. Smith said in a state1nent that he

ptit'nie'to·,vo:rk-up there owing to n_ay incapacita:tetl .condition., that he ga.ve n1e that job.

Q.. ·Rec~use ·you could not do ir?

45

A. No, sir, he didn't say, because I couldn't do it, but he said ·because .o-f n1y :incl~pucitated. condition.

<~. Then he gave you a job .tbe11e tl4"1t you could not per­'fotw and he knew it?

.A.. Read that question again, .please. Q. Do. you clain1 that they gave you a job as a watchnmn

at Christiansburg 'lleca.use you con ld not perform the duties of that job?

A. I beg your ·pu.tdon, I didn~t catch all of that. Q. I understood you to say tha.t the raifl·oad folks knew

that you could not perform t11n.t work clown there, anrl ~vet they gave you the position?

A. 1 said .they knew I could not .perforn1 it like au able­bodied man. They took an n.hle-bodied 1nan off .there and put n1e on it. Ask Mr. Smith if ·they did not?

Q. They took an able-bodied 1nan off that joh and put you on it?

A. Yes, sir. Q. Does it take a very able-bodied -man to tend that

.(36] <1rossing at that time? Is that your statement as a rail­roarl n1an -that it tttkes an able-bodied 1nan for that duty?

. (No :answer.) ·Q. Sir-? (No anS\ver.) Q. No'v youliave made a statement about an accident you

had on August · 21, ·192ft A. I don't recoliect it. {~. ·¥ou don~t ·recollect. -it·? ·A. No, sir. Q. You don't recollect an ·aceident that you had, I l,elieve

it ·was on August 20th, do ·you -rem em her that? A. I recollect that. Q. But you don't remember having one the next day-? A. -No,-sir. Q. ··You just ·remembet·'the one on August 20th? A. Yes, sir. · Q. Wiiere was that"? 'Vhere did that accident lt~ppeu,

Mr. :Smith'? A. Kimballton. Q. Now, in re::.;pect to that accident which happened to

you .six weel{s -prohahly hefore the accident ~vou have stu-d on here, I believe you stated n little while ag-o that the only·injut'Y

46

you suffered in that accident was to the hack of your- neck and vour left foot. IH that correct? .

[37] ·· .A. I ·said back of rny neck and foot and hands nnd it ~hook me nll ovN·. Yon fall 18 feet on the bne~; of youx·

head. Q. 1-Iow js that_. 1ww many feet did you fall'? A. About 1.3 feet. (~. vVJ1i<'lt band WaH it i.hHt WH!o:l injured'? A. 1.'l~e r·ight ha.n<l. Q. vVbicll foot'? J\. The kft foot. Q. Did ~"OU hu•~t your ankle any in that accident? A. I don"t think so Q. Did ~-ou wrene k your hack? A. It Hhook 1ne up all over. Q. ':Vell, did you ·w1·enck your back. That i~ what t an1

~1sking you auout. ·Yon said :von wrenched your-hac:k up ht.•tc~ ur hurt your back?

(No answer.). Q. Did yon wrench your lmck in the Kin1ballton ~w1:ident '?

·A. I don:t kno\Y whether it was "rrenched or not. · Q: Do you. know whether it \\'RR wrenched on ('ctoheJ.'" (~,

1925? A. I know it wc.ts badly injured. Q. 'Vas your back injured in the Kin1ballton acc·ident?

A. ·Possibly. [3~] Q. ln what position did you strike the gronncl"! _-\s

I understood ;ron to say a "rhile ago, you said that ~7(Hl

fell here (indir·ating) at l{imballton? · A. I guef:s I must ha Ye Htruck on my head and shoulders. Q. D.~dn't you fa]) ir. the rocky bed of a stl·e.un in that a(~·

c·ident? A. I think I escaJ)ed, part of the rock, !,ut tt was a very

J·ocky cavern, ·but I tbinlc I escaped and fell on ~on1<~ sand. Q. You tl1ink yon fell on some sand? '· A. Yes, si.r. (.~. Did you write a letter to the railrocul company in 1\e·

gnrd to this ac:cident 011 August 28th, 1925? A. P9ss)bly. Q. Is t1ut1 le.tteJ· written in your hand writin:~ nnd signed

1:~~ you? A. I think so.

47

Q. I wh;ll you \Vould take that letter anrl look ut it un•l tt~IL the jtu·y ·,vhet.her· ~~ou. said anything about falling on ~and j u that letter?

Br lir. Draper: tlust let him read tb.e whole letter to the jury ..

By :)t.r. Gilnter: AIL right, let him go n hen d.

(Said letter of August 28th is here introduced in evi· [39] dence, i~ read to the jury and is as follow·s :)

(Here copJ.) Q: So you did fall on the rocky bed of the stream. Thnt

is correct, isn"t it? ... -\. Y £·s, sir. Q. · And at that time you suffered these injur·ies and you

did injure yonr ba,.ck, possibly? A. Yes, sir. Q. And Doctm· ~ltowalter treated you, dirln't he? A. Yes, sir. Q. No"r' ~{r. Smith, you stated in the letter .von han-- just·

read that you had not had a serious accident in 12 ~rc~ars. didn't you?

A. I think so. Q. Hadn"t yon had au accident on April 29th, l~J:!5, just

three or four months of this arr.ident, at l{inlballton?

By J\Ir. D1·aper: \Ve ·object to that.

By l£1~. Gilmer: Accidents tha.t he had before are a(J· nlissible on the question of injuries.

By the Court: X understand that, but I would not have allowed you to have ~one into that if 1\fr. Draper hatlu't. gone into it. ·

By ~{r. Gilmer· 'rhen ·we will withdraw the question for the present and ht·ing it up again later on.

By the Court: All ri~ltt.

[ 40] By Mr Gihnel': Q. :\fr. Stuith, did you suffer an accident. in Roanoke

while in the e1nploy of the railway con1pany in 'vhiclt yl,u ff'll from a stairway which you were repairing?

Ol>jet•tion~ Overruled.

48

A. 'Vhat year d{) you refer to'? Q. 1913'! A. No,. sir, 1 n~YN' had any accident in 1913 that I know

of. Isn't that 1.91.5? Q. Did you have one in 1915 in which you sustained in·

juries?

·B) ~It. Draper: \Ve object to that.

By the Cotu·t: Ir they expect to show that ~hl'ougl!.

these accH1ents they nre speaking of that the injuries whic-h he now complain~ of re::;ulted from tliose accid~nt~ .. I will permit them, but only for that purpose.

By ~'[1·. l{egley: 'fhat iH tlle only purpo~~, to sltow thtlt he received injuries there.

By the Court : I wiH admit it for that purpose <ln(l Qnly for· that p~trpose.

By Mr. Giln1cr : Q. Were yon in an accident of that sort? A. Yes, sir, I fell through a stairway Octobet· 27, l!n5, but

.. the railroad company insur~d me since then. Q. The railroad company insured you since then, but you

had an aceident on Octoher 27th~ 1915, you say? [41] A. Yes, sir·.

Q. J)id you hnrt your hn:ck jn t.llat accident or claim that you did?

A. Not ns. I recl}ller.t of'. Q. Sir? A.. I don •t think ~o. Q. Did JOU frnctnl'(' nnr of your l)ones in your bo<ly? .A. Yes, sir.

. Q. 'Vha t hones? · ... -\.. I am not familhu with anatom~·, but I hroke H bone .in

nty nose and a bone ovet• the eve. Q. Did you l1an~ n romp~uncl fracture. of your uo~e hone~

ot· some hone in you1· nose? A. I gu<:ss it mu~t hnYe heen. Dt·. Gale took the' hone~

out in two picceR.

By Af1·. Draper·: 'Ve rn·p not elaiming any damages for· that.

By t.he .Court: 1 don't think it is material.

------- -----·--· ----~-~

4D

nv lfr. Oflmer: ., Q. Did that accident make you nervoua~

A. No;-sir. Q. ~rhat did not make :vou neJ.lV()l.lfll?

A. No, '!ih·. . • . , Q, In t.hat accident you fractured ~~our lrootal_boQilJUSt ·a.bove the left eye, didn~ you, as well as th& bone ira· )'QUI v.ose

that the doctor took nut? You fractured tbi• bo...- tJP [ 42] here (indicating)'!

A. Yes: siP. Q. 'Vet·e _you nervous fr·om that accident! A. No, sir. Q. No nervousn{\-SS from that'! A. No, ~ir .

. Q. Did you spt•ain ~'our left ankle ill that accident? A. No, sir, I broke a bone or two in my left ~ot,. doWP.

·about the toes, and they <lidn't find that for several ~ays. Q. I~ it ~'our left foot that you clain1 th.ere is a toe that ~

. out. of com1nis~ion now. ot• not exactly right? -i"\.. Yes, H il•. · Q. Rttt this.acddf_)nt nt Roanoke bad notJdng tq 4o witl

that? .A. I don't 1 hink ~o. . Q. .A1in yon neYex· su'ffered any nervousnes$ or p.ernu,Uleu.t

ill effectt; from that accident? A. No, shJ, I never mTen took. chloroform wbef.\ J)r. (}ale.

performed· thar operation on n1y nose . . Q. F[o,v fat' rli<l you fnll fn that nccident? .A. ·2s feet. Q. Now :in tlte accident. nt the Kimballton llridl~' .,~_yott

kilO\'{ llo"~ fR 1· Jrou fell?

[4H]

1\. 1 neve1· measured tlw distnncc, but. t.be~ ~l it . wafll n bout 1~ feet.

Q. And ron injut•ed yourself as you hc)ve deseri~. Did yon hecome n~rYOUA nfter that accident on. AuWu.~

20t11, 1925? .

A. I don~t think so. hut you will have tQ aJk tbe doetor• ahout tliat.

Q. Yon would ]~now whether you W«tl'e ne.-v~us, o.t not? ..:\. I don~t think ~o) I said, ~_:"t1!'-;_ ··-· • •

Q. You didn't· ask tl1e doct.ors n little while ago, yoq ~4 yon ·were ner\'OUS? · ·

A. I am now. .• ~ .. _. · ... ...:. '~ ...

Q. You know you are nervous now? A. Yes, sir. · _____ Q. And I am asking you 'vhether you were nervous then? A. And I said I didn't think so. Q. You don't thi~ so.

_ ... A. ·No, sir. . · •;:: Q. Did you bruise your hips and shoulders any in that ac· cident at Roanoke? - .. -\. No, not that I recollect of no,v.

Q. How long did you. "'"ork for the railroad company aR a conductor?

A. About seven yeat•s. Q. About seYen years? A. Yes, sir.

Q. When did you begin to work for the railroad com-.:··.,: [4:4]- pany as a carpenter foreman? .• J ' A. 191.3. ·

. .. _ Q. Had vou worked as a conductor up to that time or was :·: .<there an inte~val?

A. No, sh·, J worke.l on the cat·pentet• force. :'.~·i·•.:- · •. Q. · ! ou J1~d been entployed the~ by the raih•oad conlpanf-­.-~-- all told, mcluu1ng your ter1n of servtce as a conductor anrl

brakeman-! l•elieve you were a lwalceman a wh-ile, were ron not?

·· · .;-·--- ·:.-1.. Yes, sir. , ._ Q. And you have been e1nployed a]] told nhont 25 ~'"ea,rs'!

A. Yes, sir. Q. Did you see· J\[r. Catron, the c.onductor of second No.

90, on the morning of this rtecident? ~\. ~c, sir. Q. On Ot:tohet• 6th, 1925? .A •. No, sir.-_ Q. You didn't ~ee him or have any conversanon wit-h hhn?

. .A. No, ·sir .. _

By ~r. Drape1·: · Q. Mr. OHmer bus asked you about au accident in 191:1

and you stated that yon did fall from a bui1ding tl1ere about ~S feet? -

[45) A. Yes~ sil·. I fC'll rllrough a bridge. Q. And you•· nose 'va8 operated on? A. Yes~ sir.

Q. And this frontal bone?

A.· Y~s, sit•. Q. 'Vere you insut·ed after that? A. Yes, sir.

·:- <.:': ·::·.~; ~ ·~

....

Q ... In "rhat insut•ance cmupany? A. The i~rst inaurance I think I. took it out in 19fi \Vas

for 3i200 and the set.:ond insur~.nce was for $2500. Q. In what. company? .A. $10 n week in tlw :Norfolk & 'Vestern Relief & "Penf.Jion

Department. Q. Do you haw! to ~o t.hroug·h u. physical exu:mi.nat.ion to

secure that insurancfl? A. Yes, sir. ·(}. State to the Jury whether or not you entirely t·ecoverc(t

years ago front the a{~(·id~nt )~ou ha(l in 1915? A. Absolute1y. Q. Now he has asked you a- nun1bet• of questions about

falling off a bridge at J{imballton. Had you -entirely recovet·ed>. frmn that before you 'vent back to work? ::- ·'

A. Yes, ~ir.

Q. Did you feel any nN~vous effects frQm it 'vhatev.ert. A. )Io, sir.

[~6] Q. lle has asked you about not claiming t.llat you were hurt until after you were discl1arged by th~ i·ailroad.

con1pauy .j.n l'Iareh, .1926. 'Vho is Mr. C. E. Bass? A. He is the general chairn•an of the maintenance of wn,y

employees on the Norfolk & 'Vestern. · Q. Is he an employee or official of ·the con1pany? A. He is an official. · : · . Q. I hand you n. letter written hun on .Novenlber.• J"O, 1!J.:45.

'Vill you read that letter to tbe jury? By Mr. Gilmer: We have no objection to his 1•eft•eshing

his memery fron~ that letter, but 've think tbe lettet• _is ;lb· solutely impropc.•t". · :.

By Mr. Draper: "-:.;. ·. :. · · .• . •!,

Q. I·will confine myself to that part of- it theit.· Please .. '·. state to the jury whether o1· not on NoYen1be'r 10:- 1925; you·· 'vr_o_te Mr. Chf\_rles E. _.Ba.~s -a letter which I hand you, and in which you claimed that you were injured at. that tim('?

A. Yes, sir. .·· Q. No'v who is J)r. H. G. Moomaw?

. - A. He is one orthe. doctors that belong~d t-o the. ~·elief and pension department of thP. Norfolk & Weste1'n ·Railway · Co .•

52

Jtith headquarters at Roanoke. I would say he· was l.he ,·hief examining phyRician. . .

{~. Did you wt•ih! him a lettet• on Docember 31st~ lf.;:3,?

By Afr. (Hhuer: 'v·~ tH't.th~h;tond thftt M:r. Drl,tJ)t~r '"a~ ·[IT] jUEtt; Rhnwing idin t:Jw8e letters sn that. he cotlltl refresh

his men1iJf''· 'lnJt t.lw iettet• be is ref~ring to ilow "~as not ~Ul(lreased to"' any employee of the iitt}h•oad COlllJlall._\', and ·Hl'. Baas has f:401tle •~outtectlon with the employee~. or wit.h a vohu1tttr:v as~odntion among the employees atul hns no -cmm.eetltJtt 'wtth 'tbe 1·nllrotrd c<Ui1pan:r~ and 1\lt\ }tooma\\· ito; the sante way.

B~v tb4f Goui't: 1 ·ba,te nh·eady ruled on t~tat question, ott the question in t"egtti'd to the f~ct dtat h((Q'id not bring hitf snit inunediutelj and nll that, I batve ruled lt out. I ~Mt ·tme W·hY tile .fact that t,Jri.s .n1nn did or did 1tot bring Ids .soU~~-- biake bntnP.ttiate deinantl on the railrood com:~ pany, I don't see bow tJ1at -can hat .. e any bearing oh the euse.

By )fr. DraJ>et•: 'J'bc fact that he did uot bt·ing suit., of (!o\lYSti 'ts '!'tOt relmrant, bnt they have intimated here that the man was nil right and did uot claim he iVa!3 injured until Aft@r he ·was flit!l~hat•ge<i, and tliis last lettet· that I w·ttnt to itt· ttoftnee 1~ tlit'eftted to Dr. M:oohtaw, iVho is one of the exani­iiting doctfi~ tot the ~ttrfolk & w~~tern :Railw~~y Com-

. 'fm111; 48 I 'tlftd@r.stand it, and l want to show that on De­ce~~~r 31, 1925, by this letter, that he was describing his injuftlt~ antl-e1altiling then the nahil"e and e:\.~ent -of hls In­

juries and I think it is perfectly twope~ and besides that: {dJ if fmlt bOiltJt JlltmSt!, he brt>Ught it out bli cross exafninu­

tion. . .

B_l- ·tlie Court z .Both sidetg hate! gone a little ottt of rbe orrlmary m~tbod of showing injuries or the non.:exi~tence of injurieu and that is easily done hy the examining phy~i· 11iaas, bu' ·aooidentH ·h~~ning Ui ot~ 30 yeat·s ·ngo ~n·e ll')t ··rwotJ~i··

Bl .ltt1 Wliltet\: 'This -h!tt~J.· is se1f-servil1g 1n the ex- · tt-ent@ tlftt1 tl:tmUltDg but ttfl :eitot•t bf this 1nan to ~et some 1tl(Jltcy out of the Pension Depa.rt.nwnt. ·-

·. BF l(r· .. Dl'llllPr: I \f-ill ttl!:lk }I'J•, 1~. H:~ Sntitlt a <]ue~tion. TfJ It Jt ~~t.~ by )fr. Draper: ·

53

Q. Is Dt:. Mooma.\v in the en1ploy of the Norfolk & \Vest­et•n lia.il\\"aY Compan~r?

A. He wns an exam inet~ in the relief and pension depa 1-t· ment at that time.

By ~f.t·. Dt·apet': I \\·ant to pr·ove that Dr. ~Joomaw WHS

in the em.ployn1ent ·of the railroad contpany at t.hut time =~~tl that t.lw fo1 lo,vin.g letter was ~l'itten ])y ~Ir. ~rnH:lt to D1·. ~Ioon:Ia"' on De<·emuer 31., 1925.

By- the (~(Hi.l't: llut the fact that he did nbt nu1k<~ an.v clahn on the railroad cotnpany, t don't tl1ink it make~ any <liff~rence in tlie wor·ld. Tlie pltysicinn~ ought to he a l)le to know 'Vh(:lthe•· the man is injured, if tl1e;v ·lon~t know, tl1ey ought. to -know.

lly l\lr. Drar•er: And. tl1e man himself ought to know it.

By tbe Court: Yes: I think so.

By 1\Ir. Draper: Hf~ ought to know· whetJ1N· ht~ ~s in­f 49] j:ured. or not.

B~ the Court : Yes.

By Mr. Gilmer: Ahd our position is that if he did kno·w it he ·ougnt. to ghre us son1c eYidence of it.

By l'li·, Drapet~: ':l.'hat is what we are tt•ying .to do now.

ny l'fr. Gilmet~: Let n1e a~k hint a qt1estion.

Q. "\V.h.ic.J) hand is it ·t.Jrat your fingers are stiff ln "! .:~. Tho 1·ight band. · Q. Can you bend then1? 1\. .At. thls time of day I can, but I cannot in the m<n·ning,

hut after I 'vork tl1em a little I can. Q. tTnst wurk tlrem, let the jury see you work :-.Item?

(\Vitness does so.) Q. <Jan yon bencl the fingers t>n th·e other ha'fid? A. Yc:~s; ~ir.

Q. They are aU right? Q. I.Jet us see Yt>U do your right 1tand that ,v-ay?

(Witness does so.) <-l. You t~a:n clof:e it eumpletely? .A.. Yes, sir. Q.. And straighten it out cmnplete1y?

54

A. At this time ~f dny: yes~ ~:;it·, but as a rule I takt"!ll1Y fin· O'ers this waY ( huli<'atinQ:) u nd work tllem. :-.:, fo • L

. [50] }',v 1\Ir. Draper: . "Q. 'Vhat condition are your fingerli in in the _mGNling

whei' yon 1irst wake np? · A~ Tltev :n·p stiff in nny position 1 ]eave thent in the n\ght . ~ - . ..

R.Y lfl'. Draper: f jnst waut to introcluc~ thjs lettN· to nr. ~Ioon=:lw for tlu~ ptupo:'lcs of tlw record.

Hy the Cmu·t· :· YH·r well.

Dr. H. G. J.Iuma w, Exan1iueing Dr. R&P DepL X&'Y RH., Roanoke, Va. D~ar Sir:

... ~\..s per your request, while I was in your office Dec. 7th, 1.925, I an1 writing· you as to my eondition, physiea lly; I repOl·r­ed to Dr. Showalter, Clu·h;tianslnng, '~a., who exm.nined me anil said he found a. broken lmne in n1y right arm, lmt be would not try to mal{e a pieture of my :-::pine and ~houlder~ where I lia'\·c the nwst serious complications. Said it would cost too nuwh. I an1 not physically ttlllE' to do any hard labor and an1 afraid I will neYer be, lmt if you think it best to discharge ine without any farther relief, as a matter of fact, you have the power to do so, but n1ight does not make right, I do not 'vish to enter suit.

against tlie R. R. Co. and will not do so onl~r as 11 last re­f.;i'l] sort. Your Dr. was .nt my hon1e to see 1ne for allout one

1ninute yesterday, and said you 'vould stop 1ny relief J au. 1st unless I cmne to see you again. I have no objection to conl­ing to see you every da~·, except the eost. It will cost me $250. each round trip for car fare alone. Also the ride giYes Ine much extra pain. "\Vont you PLT~ASE c01ne to n1y hon1e at Chris­tinu~burg and exa1uine llH.'. T certainlY w"i11 app1•eciate :your kindness if you will do so. "

Please let n1e hear frmn you. ,~ery respectfully,

(Signed) ..:\. };. SAilTH."

55

[52] DR. P. P. BRAl'I!IER.

Dr. F. P~ Brammer~ Rworn for plaintiff.

DIRECT EXA}IINA'l1ION.

By Mr. Drapet•:

6th?

Q. 'Vllct·e rlo you live? A. Christiansburg. Q. IIow long hav~~ yon heen praeticing medicine? A. 16 yr.ars. · . Q. IIow long have you been waiting on 1\fr . .A. L. Sn1ith? :\. I saw him "fil•st on October 11th, 1925. Q. How ~oon after this accident that happened on October

A. I think it happened on o.ctober 6th and I saw hhn on 1·11e 11th for the first time. ·

Q. The 11th of Octoher. or the smne 1nonth? A._ Yes~ :.;ir. 1925. Q. ":rhnt was his condition when you saw hin1? A. lie appn.rentlv at that time ·was right sick, and he han

a scalp woun<l here s01;1e plac.e (indicating), I don't know wheth· Pr it was the left or right side of his head, about two inches in length, thtlJ·e wns' eYidence of n 'vound there, and also. on his lip, then he lind se,·eral ~mall abrasions or s1nall wouutis ovm· hi~

1Jodr, hut I don~t rememher the exact location. Q. Yon sn.y he w·as right sick? A. Y el'l. sir, n pparently he 'vas.

Q. ~Vlwt p1.·odncerl tliat condition? [5H] ·A.· Jt i~ really mr opinion that the fall was the 'pri·

mar.r cnuse of it and he hna·heen sufferin[t quite exten­sixely mid had tnken eodein, I think nncl he WfiR really sick at hi!'! ~tomach, and painfttlly siek.

Q. Do .ron know w"ltether bif.: arm 'nu; hroken or not. or dicl that develop until later? . · .

A. No, Flir, I don't know whether it 'vas or not. Q. Do you kno"·, as a matter of fact, that his t•ight elbow

wa~ found to haYe l>een hrol~en or a ~ma l1 hone in it. ht•oken? A. Ho,,r is that? Q. Didn't it develop afterwards on an X·ray exan1inat.ion

that a bone in his right elhow" had been l>roken? A. Doctnr Sho·w·alter told me that, the X-rayed showed

just a smaJJ tip l1ere w·as chipped off, but that was sometbne af-

terwards, three or four 1nonths. Q. Did yon make any X-ra.y of his back? A. No, sir. Q. Or hi~ artn? .A.. No, sir. Q. You made just a snpet·ficial examination the day you

found he was sick there? A. Yes, sir. Q. Is that the only time you called on hhn?.

A. No! sir, I saw· him on the 12th or 13th, in fact~ I [54] saw him thref' ot• four tin1es. .

Q. lie renw.inecl fm• some time in a "reakened condi-tion, didn't hl~?

A. 'Vel14 be began picking up and felt better and he suf• fered less, he seemed to be impt•oved or did improve.

Q. You made no thorough diagnoFJis of his cas~? A. You 1nean ut tlle tinH~? Q. Or since? A. No, I haven~t exami~d hbn since.

~ Q~ He spenks of his finger being stiff, lack of circulation. Do you kno'v what to attribute that to, without an examination, ~n~? .

A. .No~ sir, 1 do not. Q. He spoke of hiR legs being luu·t. and his arm~ do you

know what to a.ttribu~·e that to, or can you discover it ,,Tjtboui· an X-ray or a thorough exnmination?

A. 1 eonJdn't do it ,,·itho\ti; an examination.

CHOAS E~XA}!lNATIOX.

By ~11·. Oihnet·: Q. You haYe ~ht.ted to the jury what you gathered about

the condition of this m~·,n fron1 ~rour visit.s to him. the things that imp1·e~sed. you? , · ·

A. Yes, sir.· 'Vitness staads nsid(').

[55] . ~IRS. LINDELI.JE Sl£ITif.

l'Irs. I.indelle Smit.h, ~~worn for plaintiff1•

DIRECT EXAliiNATION.

l!Y ;Mr .. Rhudy :

Q. A. Q.

This is J\Irs. ])octor Smith?· Yes, sir. ~ -:.-1 ' <>.-f·:. . ·

You married, 1 twlieve, n ~on of .Mr. A. L. Smith? A. Yes, sir ..

- .. ; •"\ .. -:- ....... .!

Q. Mrs .. Rrnitl1_, :1 re ~ron n 11~11'~~~ -· ·:·----;~:;r :&-i...-..r , :: ·-A. ··Yes, ~ir. . . · _ · . ~· · · ·:. -~~ · .:i ~- . . r.

Q. Of ~bat. sclLO_ol tit\e. y~ti~,a ·'gladu~Jt--.. ~:~-·Q:· ~, .r-. A. George Ben ,Johnson Memorial. Q. About how long ~ince you graduated!. A. About :six: j·ears. Q. Mrs. Smith, did you s~ lir. A.. L. SMith after his in·

jury, if so, lww soon th~reafter? _ :·. , .·· ~·-c •. .,

A-. I ~aw him the first night after. Q. 'Vhere was l1e when you saw him? ...... -;··- .. ·,. •--~. · . - ,, ,,r•·-. ··.:tr~ ';_:f'.;;- '·"!~"':._-:- .. &.!.te-•.;;.,• .. ,

A. At his home in bed. "?'~ Sor. t ·('W~

.. . Q. A.t Christiansburg? ... . . _,, -~-' ,..· ;..T •..

-~· ;_·:~[ Yes, sir. ,. __ · ·; :;.;.~-;.·.-r~· ;.~···, :~~-- 7:-t ,::;.1"\t

_Q. 'Vhnt was his condition w)l~n. y~\~ J\rst saw him?. f .---· r' , . .: .' I .

_A. Apparently he wns unconscious. . .·. Q. How long did lu~ rPmain uncop.~p.io}!~;~f~~~~.Y9.!t ~fJ!!"f

1lill1? ..::~. -1Jntil about 4: ddoc.k the next morning:' Q. And you first saw bhn about what tim~.J~f\t :}.lig~

1-\. I saw him about 10 o'clock. [56] Q. ~Vhat· \yas J\iJ"; rondiHon wit1~; re~c:r~n.s;~~t~ p~~'~ ill"

suffering, if any? · A. He was nnconsciou~ at tbe.timc,)~nt,..of course, -when

he regained consciousness he seemed iuiserable, be was in ~gony. Q. Now you say you sa"r ~iln: Q~ t4e. -~ig~ha~~- th_~,acci·

dent in the mot~ning. How long did yon remain wit-h·him and nurse ]lim? .·~ t.} ... ,.

A. . .. \bout ~ight da~~s. Q. During this time what wn~ 1tis con<litiol!JYJ..th~;!''?(W:.~JW~

h? pain ;nul suffering~ if any? .·-,:_: T- ·:-

A. lie f.lnffered intense1y most of t11e tinte. Of course W3 had nle<licine to quiet llim when ]Ie -woul~ .g~t ip.~t-14.~. e.1.t.reme pain, I would. give llim one of the capsules and they seemed to quiet Jlim as long n.s ~h.-_at had effect,. but .n~ soo~:;::\~,. tha.t. ,).-was

· oYer he was in agony again~ · - - - · Q. Did yon notice an,\· injuries on, hin1 :a11rwl!~re, .. if· so,

~~? . A. He had au incision nct·oss t.he head here (indicating)

and then his lip and nct•oss the t.op of iiis bend and his elbow7_ he

58

suffered so much with that, 4nd QAe .Qt hiM ~~ .. Q. One of his feet? · A· "'ff$, ,;r, a.nq hi$ ~honlll~J\ ·

Q. ··which elbow did he suffer with? [57) A. As 'vell as I f~lnember it was the right,

Q. Did you examine his elbow carefully yo.u~self? b f 1 irt · I d'd A. To the . el$t Q JUY a t J J J . •

Q. Are you in =t pQ~iti.on t.o st~,te whether or n-ot it. wa~

broken? . . A.. I couldn't sa.y definitely, hecau~~ I tbin.k al~ X·r{),y can . q~nv toot.. bett~r~ ·

, ·· Q. What was tile conditiolJ. pf tll~ a~'!O? A. It was s'vollen ::nul ~tremelr I$QJ'e, vm·~ Heit~itive. · to

pai~ ana red and e~tr~Jite.ly ~or~~ . Q. What was tbe c.ondition of qjs_ fqot nnd leg that lu~

complained of? A. His foot wa8 extren1ely swollen and bruJs.efl drea.dfull~·

and QP.~ qf ~~~. toe.s ~as bl~c)\. Q. Mrs. Sn1ith di{l he con1plain nuy of bi.s ba<;k, if so, ho,v? A. He cQmplaiJ:~e<l of •iJlh~n.s~ pain·i:n bi~ back ;11nd fit)loul·

der and back of his nee k. · Q. Was he f\hlt~ to 1rt0,ye himself in bed~ dnl~ing. this time,

or not? · · ··A.- Not anJ 1nore than Jw hJ.1f} to nn,<l that gave hbn inten-se

pain."'he~ lle 1noyed at .an. ·~ · Q~ Ho'v often did .ron see ltiln after .von q·uit ~·egnlarlr

U\l~sing him, (\t the (~~pir;)tion o.f eight days? A. We carne b~ck ahmlt a 'Ve~k lat~r and t.nen abo~t ever:v

~\\'0 've~~s Jllnyh~.

Q. !f<>'V 101-w; "rns ht~ confined to his bed? t'5SJ A.. Re '''as sick in be<l when w·e left him n.ft~v (}igb.t

days. Q~ DQ. you ~n~.w how loiJg he w.n~ CQPuned to bi,s lw.tne? A: I couldn't say definitely, becaua.e r WB.$U!t th.eJ!e. Q. How· ofte11; have ~·011 seen him ~i.nce he. got Qut of l1i~

l!OWQ !Wont tid~ injuJ·y?· · A.. ~·b~n~t ~veny mo1~t:n o1• two ot• 1naybe,. ~very t.wo n1,qntb~.

· q. J{ow often lias he. visited you,? ..t\. l couldn't ~a~· defilnitely, hut~ t:wo OJ.' tp,re<! th110~ T

t.bin]\~ · Q: And how-long would he stay With you? A. Maybe a da.~" a_nd a n,ig,ht o~ twQ or thr~f! days.

Q. D(re8lte suffer now any tt.nd colnpbtin1· A. AU the tin1e. Q. Mt·s~ Smith~ did y&n n.otiee a:nythin3 wrMg. With the

two finge:r& on his; right ba.nd;, if S():r what was: y&ur Qb~rvatiOn? .ltu He. JlreH e&nll~lain~.fl of thent:. aU the t.bne ftild t~)l. we1·c

stiff and dead like, and ll\'l 'vould say.'they felt dead. <l. )Vhat would he their condition in the morning?

A. tJ suali~r stiff~ artd he didn''t ·rra\"e -ver-y much ~'On­[&.rl:J trol over th<!n1 and after• lie 'vmifd \Vork them .a. ~ile,

tl1e:v seemed like the~~ \vould be better. - ·

·By lfr•. K.e$.{lt~y : Before <.Toss exami.n.ing tJiis: wittress,.. \Ve 1nove the Oon1·t to strike out t"iie testimo11J of tf:tfg 'W'ff .. · ness, aH to the ·~ompl.nints of lir. Sn1ith sinee th ti~· im· med.ia:tely folfo,vittg the aecfdent, fiM wit~ he Mld ttflout his c.ondition.

By t.he Ca~J:t:. You n-1-gan eontE)\oain~ ·he lias. made mee ~· got oat ()f bed.?

By l[r. Keg~y: 1 .. es:, s·W, atfd tlte times- ht v1mted· the witnes~. All of that is 1nedical test.in1ony altd thrs: witil~ cannot testify to thai:.

By thE· Cotn·t: t supp~~ tltat '\Vill be' jW6p@". Ht§· en" tire statement about that.

B)l lf.r .. Dra.v~r = nne. minut~ let n1e. ask her a ct~fon. Q. You nre- a grad hate and trained nurs(l, -~ ·1" ii&t? A.. Yes, siit: · -Q~ Y &ll~ ~a11K~ tr~ ft..i:m 9J~t li:is: e&nd:ftitm ~ ~ 1\tlJ\iMl

com-e' M-··~ y•?. A. Yes, sir. Q. And he ·would fila-k'.e: ~<fmPia1fi.lf~' atfd! ~~:teitf@:ifs, iri re·

sp~ttse· tt~- ~lf ~~ iVOlllMt·lf~ ~t.~

A.. Yes! sir·~ ~1nd we could detect that he was sufferi$

[ 60:] By lft·. Draper·: If your honor please, r tfli.nft tie state· 1nents. ought to ren,f!iin. ia the record. -

B:v }ft·. Kegfey·:: ':Ult~ Wit'rress~ ~dl ~mtltyr €6· all~­that she observed frmn his appear~~-e:;. 6~·tli3tg • cJ'&lil;~ ~lb· serve, but.· n'tfli wfrrdltf h.!tr tretd ~;

;:: ·· , .. ·-By thec-Caurt: Qf ·COUrse, ordinarily CQmplatnts nHHl{~ · _;· .... :by an injured part~· i8 not pi·oper. ·

By Aft';·]) raper: \Ve won't insi~t on the complaints; hut fron1 his general appearance, and front yout· experienc.e, please Rtate· whethet• ~~ou COtild tell if he Wfl~ Rttffet·i~lg 01' not.? ,;,,. ... r. -· -.!; •· -. ~ · ·

~-:.;,;Yeti, -~h·, yon-could .tell tllut. Q-: _ R~g~t·dless of wl1at. 11e sn id, could you ouserYe the stiff,

ness ot· bis fingers, ot• nqJ ~? , ; .A.. Yes, sir, you could, and the way he \Vould move at·ounu. Q. How long have you heen mat•t•ied? A. About six year~ .Q. Did -yo;n.~r\:~ oc.c~nsion to l';ee lfr. Smith before this ace.i-'

dent happene\l?'"''"·q.· · . ·· - . ~\.~ J~~l~~h\ ..... ·- J~- ••• - .

(t W)}at :\V~~~J.!.is conditi~n say fot• tbe last several ntonths preeeiling-:tilis a~(;f(ieitt?- . . . . .

- ~\. 1:ou 1nenn l1efore he ever lm'd au uccidcnt? - Q. Befor~ lle l1ad tltis nceident in Octol>et·<-

A. I don't know that I saw him for months l•efore that. :'- ;.Q •. You did not·see him befot·e that·?-'

[61] _,· .. A.·. ,No, -sir.

By Mr. Kegley : -· Q. .Had you seen him hefm•e he lutd the accident· itt Au~-usi? ~:--- ..... ~ · .. ....._ - · · · · · -· · · ·

.A.. .. I don"t,.k~ow tlu~t _I ~aw· )1in1 f<:n• just a t:t•onth before. ~ ··"ltut you 'ha(fseeti bf~{ befot;e -tl1e Augu:it ac.r..ident? .

. -A. ... ¥ ~~ f-'ir •. ___ .. .:. . _ . . _ _ Q You say that the nigltt' when you til·st,· saw lir. Smith

that he was a,pparently unconscious? That was on account of ttie opiates that had btJen p:iven hhn to ease bis pajn,,·w~ it··not? "

A. I couldn't te11 you that it was. · Q. ··.What i~.Y.~t.wjndgment about it·? ~

·x. I didn't know .iust:·Jlow.JQ~tg it. bad been since he had any. ?q;.;,~Jo·• -- I•' I . - .. :

Q. ~~~ .£Y,f1n'~ ~~~~vY . ~-. . . . .- . . . . .-.:\.. :N'o sir. · · · · · ·-- · · A •• • -

' f\•·-. ·~ -~ r ( • ' •

Q. You tlidn't if1eati to' say· that he was unconscious f1•om Hhoek or the hntnediate effects of his injtuy?

.. .:\.. .{pparently--he i\\·~ .... "

· Q. You. say l1e was appat·entl:y ut~~9nscious?

61

A. Yes, sir. Q. If che.Jv.ld. been given opiates that ·would produce

(62) an appare~t un<~onscious condition, wouldn't it? .t\.. [ think that would n1ake him ·entirely unconscious.

Q. It would ,put l1int to sleep.? .~~ ... Yes, sir.. . Q. And ·after tha:tt he took an opiate of some kind frotn tin1e

to time to re1it~,·e his pain'! A;. The days.afte1· tlle nights he did. Q. 'Vhat ,\·as thnt; eodein? A . . I could~t't teil yQu -'vbat was in the prescription. The ·

doctor gives the medicine and I jul4t administer it. Q. 'Vh~ ga,:e. that vres<~-ription? A. Dr. Showalter, I tltink. Q.. How long aft.et• tbe n.c.ci~:Tent w·as it before Mr. Smith

"isited you ·at yout~ Ito me? A. I couldn't tell you, I jus( don't ren1e1nber how long it

w~. . Q. Son1e uw~ths ,a fterwat•ds? A. Yes, sir .... Q. Several 1uont1ts aftet•wawls? .A.~ Yes, sir. Q. Was it the following HUillnlet•?

A. I just don't retnember when 'vas the first visit he nuide. Q. Do you t•ecall whether it was aftet• he had been a gate·

I nan at Christiansburg fo1· a ""bile? . . ~. J d~n't know just wllen it was,. but it wa.s a good

[63] while aftet• tl1e accident. Q. Yout• ho~ne is in Galax?

A. Yes, sir. Witness stands w~ide.

[64] HENRY A. SMITH.

Henry A. Smith. ~m.·orn for plaintiff.

J)IRECT-EXAMINATION.

By Ht•. Draper: _ · _ · Q. W1iat- is your. full·name? A. HenrJ· A. Smith.

· Q. "'here ·do you live?

,----

62

A. Christiansburg. · Q. ViThat business <.n·e yon engaged in there? ... ~. In the n1ercnntile business. Q. How o1d a.re you: A .. :J::l. Q. I believe you n re a ~on of 1\[l'. A. L. Smith, the plaintiff

itt this ease'? .A.. YeH, :;ir. Q. 1--low loug· h~1 n} you livPd with ~,~out fat1wr, or do yon

live ·with llim·?

·A. f Jive with hi111 lJO\~mul l lutn~ lived witlt hinL- practi­('<tlled all or m-:r life.

f!. It lla:s been testified in this case that youl' father was injured l;y falling off n building jn 1!)15. 'ren the Jury whethe-1.• or not he had: recuYered entirely fl'om tl1ose injuries that he re­eeived in 1915 ·:

A. Yes, bh·, he had eompletely recovered. Q. It is u lso in testimony that be fell front a bridge oli

.August 20th, 1925, ahout a month before this last accident? Did yon live with hhu in 1~ ugnst and Septern her, 1925?

.:\.. \.,.e~, sir. [65] Q. 'fP.ll the jnry wltethel' he Juulrecovered ft:dln th.osc

injuries, 01; not-; I mean prior to this la~t c.t~cideut? A. Yes, sh"; he had t<>iltpl~tel.Y rrc•.overeil. Q·. Di'd !w sleep well? ~\. Yes, :oiit·. Q·. vVa~ he Utll"VOUS fl'Oll1 that injury that he recei\1ed? .. :\.. No, sir. (~. Was he able tu go lmek to his wor"k? A. Yes, sir. Q. And did he go hack to his. work? .-\. Yes, sir. Q. After he wa:~ injured in October, 1925, where was he

taken front here? A. He was brought hoine. Q. 1-Iuw ]ong did he rem!lin in bed a.nd in the hot~se? A. 1 'voul<l say he \vas in bed six: weekK Q. H.ow long did he re1nain around the house, just going

out occasionally, nfte1· getting out of the bed? A. I expect-rectlly~ I just. don't kno'v how long, it was, hnt

it was ~ometime tltoug-ll. Q. Hn8 your fntl1~1· J'('(·.oveJ•ed ft·on1 those i-nju.uie~. or 11l(!)t.?

[6fil

63

A.. No, ~ir. Q. Does he :-1tHI :-~uffeJ·, ot· no1·? .A. Yes, sir.

Q. 'J'ell the jur)· how he wn~ injured~ the nature of hit'4 injuries?

A. ·He ~nffN'R with lliS right arm and hiff chest a.nrl l1i~ hack.

Q. \Vouid he suffer intensely, or not? A. At times, ye:;;, ~it·, he r.annot use his arm nud his fingers

nre stiff. Q. DoeR he ~till suffPI·, o1· not.? A.. Y~~ sir. Q. How do yon know it.?

1 ..\.. He saJs so. and talks about it all the t.ilne. ffis · arm

giTes him a great ti<'nl of tronlll~, hi~ arn1 is still sore, and pain~ ltim a -great deal.

Q. _ Before r~C>eiYing this last. injury was he net~~ou8, ot• not? 1.

A\o No. !'lit·.

By Mr. Gihner: I aslc your honor to tell the jury to dis· l'egnrrl \Yhat. he r.;ayR t.llere. '

By the CouJ't.: Of r.ourse wl1at. the plaintiff hiluself says ahout it is not. admissible.

13y ~lr. Drapet·: [: Q. Independent of his eompJn.ints, could you tell, knbwing

him aH you do, wlwther be wns suffet•inp: or not? A. Yes, sir. Q. Ho\v. cou 1 d you tell it? 1 ·

A\. By hhn getting up and down, nnd nt t:lw tabl~~ and thing!'! likE.l that.

[fi7] Q. Did hP hnn· nn expre~~ion or pnin on his face, or not? •

A. Ye~, sit·, at time~. Q. You ~?an ten "·hen a ma u h; suffering~ ean ~t .von. rtigartl-

le~s of w·hat lw sa~·~. if you I' now him well? ~

A... Yes, sir·. l .

Q. ~l'heu t<~lJ thP jur~· from hi~ appeurauee, iudepehdc1tt of llis complainant~, whether he i:.; row;;tnntly l"Uffering nntl lws lleen since this injnr~·?

A. He ha~. Q. Is he nerYous now, or not?

. ,-/ A. Yes, sir, Yery nel'vou~. . Q. "'\Vas be nervous before this injury? .A. No, sir. . · -Q. What was llis general condition before this injtu•y .in

October, 1925?

[68]

A. I \Yould say excEllent. (l. Did he \Vork regularly? A. Yes, sir. Q. Was he able to do mnnnal labor? A. Yes, sir. Q. Did he have any disease of any kind or any ailment? .A.. :;No, sir. · · · Q .. ~ Was his appetite good? .. A. Yes, sir.. . ~ .. I • • • ,. ... ~ .... _. 7 •. -

CROSS EXAMINATION. -.. ~' -

By Mr. Kegley: .. :.) . Q. Your father had been a carpenter foreman· ··roi · some

years prior to this injury, hadn't he? : ;A. Yes, ~dr. Q.. iiad he had any oth~l' occupation·? A. Not that I kno\V of. Q. Do y()u know \Vllat lte did as tl. carpenter fot•ePmJ:.~ m· ·

\vhether· he did any manual In bor? ·oA. No, sir.

Q. You don't know anything about his activities~ wheu he '''"US out on the road wit,h his gang?

.A.. No, sh. ~ ~ .. Q. His w·ork waR out witl1 this carpenter force~ otu oH the road, wasn't. it?

. ..:~.· Yes, 8ir. Q. How· long after hi!'; injnrie!i! wn~ it before he w~n~ hntk

to work? A. After_his l_a~~t injut·y? Q. Yes, ~ir. A. I don't rep1em ber the time, some tlu·ee 1nontll~ o1\ m H'll.

9· Before he went. lm<'k to work? ..c\ Yes, sir.

Q. And did he go back in the emploYJnent of tlle rail· [69] road cmnpany as a cro~sing· watchman at Christiansburg

ot• Can1bria? . -A. Redid.

..... ·.

Q. He was capable of performing that work, I ~uppose '! A. I don't know w·hether he \Vas capable or not. Q. Do you know 1\"hether he applied for the work? A. No, sir, I don't know about tha.t. Q. You don't know whether he applied for the position a'!

carpenter before he took this j~b, do you? A. No, sir. Q. N O\V you say lle bad completely recovered fro1n tlus

.August accident. Do you know what ha.ppened to him in t.he ~1\.ugust accident at Kimballton?

A. :No, sir. I kne'' he had a fall, or sometliing like that. . - Q. Do you know that he had fallen pff a trestle over the1•c front n. height of about 13 feet and fallen down in the rock be.t of a creek there?

A. I kne'v he had a fall~ bnt I didn't kno'v what distan~o iie fell. ,

Q. You knew he had been laid up from thal. accident for a n1onth or six weeks, didn't yon?

.. (. Something like that. Q. Something like ~ix weekFC.

[70] A.. Yes, sit·. Q. But you Sa)· he had completely recovel~ed front tba.t

accident? A. So far as I kno"~· Q. You know that he went llaek to "ror-k and took cltarge

of his carpente1~ gang, ·went back as foreman of that gang'! A. · Yes, sh·, he went l>ack to wor~k. Q. 'Vlter·e had he been in the mfl..antilne; nt hon1e? A. Yes, sir. . . Q. .And that accident inJured hun to sucl1 an extent that

he was unnhlfl to ~o ua(l}~ to work· for n mont.b or allOut. Hh: w·eeks? ·

A. It wa:-: proball1y that time or n mont11 or something lil<~ that, I just don~t rememller. ·

Q. · In fac·t, he had only been back on the job, I believe he · testified, ei.ghf~ flA:vs, :1t thf~ time lte hAd lhis accident up here st.t · Pulaski? ·

.A. I don~t rmnemhel' just. the date. Q. 'Vell, it had onlv he~n ~u!'Jt. a· short tin1e? A. ·Yes, sir. Q. Was your father contplaining of this soreness and stiff.

ness a.nd nerYousness at the time he was e1nployed ns a crossing 'vatchn1an at Christiansburg?

,---

66

A. Was J~e? Q. Yes, sir.

[71] A. Yes, sir. Q. H·e was complaining all along at that. time?

.A. When he was watchman? Q. He was complaining all along during the time lie WM

watchman at ChristianRbnrg? A. Yes, sir. Q. What were his hours as watchman, do you recall? A. No, sir, but it was from sometbpe in the afternoon until

12 o'clock at night, or ~;omething like that, but I jnst don't re· member the hour.

Q. He bad several hours of night dttty as watchman, did he! ·

A. Yes, sir. Q. Did he have that all the time he was employed as cross­

ing watchman? A. I think so.

By 1\Ir. Dt•aper : Q. Mr. Kegley has &sked you about his being able to got{)

work, when he did go ba<" k to work at the crossing, you say he -was complaining durin~~: t.hat period!

A.. Yes, sh·. Q. 'Vhat is his condition now? .

By Mr. Kegley: We object to the question 1,ecause it has been gone into in chief, and it would not be a proper question anyway becquse this is a non-medical witness.

By th~ Court : I tl1ink he can testify and lie bas alread~r [72) , t.efjti.1ied about his suffer4tg.

Wit.n~sR stands aside.

DH. E. T. SMITH .

. Dr:. E. 'f. 8mitb, swnrn for plaint.iff~

DIREc.l' EXAMINATION.

By Mr. Rhudy~ Q. "1tat are y\1ur initials! A. E. T. Smith. Q~ I 'Jelieve yon are a doctor!

67

A. A drnggist. Q. Whet·<' are you in busine~s? A. At Galax. Q. "'1iat school nre you a graduate of? A. The Medical Co liege of Virginia.. _ Q. Are you a son of A. L. Smith? A. Yes, f.lir. Q. You r•~tnetnbe:•r ahout tlte time the accident occur1·ed 'll)l ·

het•e in Octobm• when yont• father ·wa.~ injured? A.. Yes, tdr. Q. How soon afte1• tlm.t injury did you see hbn? A. I saw hiln ~\t 10 o'clock t.hat night. Q. I believe krs. Smith, the nurse, is your wife?

.A. Yes, eh•. [731 Q. Did you go FJhere with her?

:of. i-es, sh·. Q. And -you saw hint about what time that nightf A. T(ln o~clock. Q. '\l1lat was hiH condition when you saw hiJn? A. ·He was unconscious at the time I saw Illm. Q. Did you examine him as beE;t you could titat night? . A. I did hot make au atan1ination, only just looked at ltim,

because his head was tied up, you couldn't see him, only one eye. Q. From your knowledge of nim and wha.t you observed

after that, waR he unconst·ious from the injury, br front the mt!d .. icine he was under the influence of?

By lll•. Gilmer: 'Ve object to the question bec.ause it js purely an expert question.

By the Oourt: I do not ~uppose he would be qualified to answer 'vhethet• u n1a n was unconscious ft·om narcOtics or something else.

By Mr. Rhudy: Then ·r will withdraw the question, an•l ask this question : · Q. HO'\\' long Wet·e you with your father afte1· you saw ~J1n

that night? A. I left tb(l next morning. Q. 'flien. wlten did you see hitn next? A. On Sunday.

~ .How n1auy days were you there? (74-] A. rt 'Was se\'e!·n1 days, but I just don'i! rec.all how

68

many da.ys, but I saw hiin the next Sun~ay. _ Q. How \\·a~ lle tlw. next Sunday when you left.? A. He was asleep then because I left early. Q. "1tat "pus his condition when you saw llini next? A. He was ,·ery sore: and he didn't have any use of hint­

self, he cou1dn"t mov(l himself: well, he could n1ove probably his Jtead.

Q. \VheJ·e ·~id tlle pain ~een1 to he at the time you saw ltim ·next?

A. It wa~ in his ar·rn, leg a.nd in his chest. . Q. lfow often did yt.m see ltim from that time on until he

got out frmn his honte? · A. I 'vou1d generali.v go down on Sunday. , Q. How long did lw semn to suffet• from puin that ~?ou have

just referred to? .. .. \. lie is still suffering from thnt. Q. 'Vhere does be suffer now? .A. He suffers wit11 his right ar1u and l1i~ left leg · an{l

through ltis bacl.-:. Q. 'VItat is his JJhysicnl condition now: .i~ he able to do any

wot·k? A. No, sir~ not 1nanual labor. Q. Has be been able to do so since llis injury? A. No, sir.

Q. What is his nei·vous condition 1 [75] A. He is Dloi·e nervous at tinleS tlmn others.

Q. Is be Yer:v nervous, 01) not? .A.. Yes,. sh·. . Q. Was be nervous before this injtu·y? .c\. No, sir, he 'vas not. <l. -What was his health just prior to the last injury?

·A. Good.· (t Do you relnembet a bout the time when he had an acci-

d~nt at ~intballton? . A. ~-o, sir, I think I was in Richmond at that time .

. Q. Did you see him after that accidetit and before this ac­eidenf up here?

.. \. 1-e~, sir. Q. Had he, or not~ recovered. fron1 tl1e injury at Kimball·

ton? .. l. He had recovered. Q. . Do you re1nember of the injury he bad in Roanoke

69

'- about 191.5 when he fell through a stairway or son1ething? A. Yes, sir. (l. Had l1e recovered. fron1 that injury? A. Yes, sir. Q. What was your father's health then just prior to i.b itR

injury up here? · A. His health was good.

·Q. Wbat i~ the condition of his health now'! [76] .\. lt: is ve1·y hnd.

Q. lias he u ny inc01ne? A. Not nny. Q. Has h(l nny trade or profession? A. Not anything that he can 1nake a living at, no, sh·. 't'!. And is he ph~vsically able to work? A. No, ~ir.

CROSS EXAl\IINATION .

.By }ft•. Gilmer: Q. You nre not a physician? .A. No, sh·, I a1n a (lruggist. Q. Just a druggist? A. ·Yes, sir. (~. Do you recall how soon after this accident your father

visited your home a.t OalHx, or 'vas it soon afterwttrds? A. I don't ren1em ber· exactl:v·, but it 'vas s01net~me after·

'''ards. Q. Ife visited your lwme son1e tilne afterward~o;; do you re~

1nember about what thne it 'vas? A. No, sh·, I don't:o fw·o ot• three months afterwards. Q. To reft•esll your 1nemory, 'vas it afte1• this accident at

Christiansburg? A. You are refrrring· to this accident up·here?

[7"7] Q. No, sir, I an1 referring to tile crossfug. accident at Christiansburg; You can possibly place it as to tliat, was

it after be bad accepted· mnployment there nnd Ju1d left that em-. ploy1nent? ·

A. No, 1-jil', he vh;ited me before that. Q. Are you sure of that? A. I 'vQuldn't swear to it. Cl. But i:Jmt its ,your in1pression now~ ot· that is your best

recollection?

70

A. It was two 1nonths probably, I don't remember exactly the tin1e.

Q. If it wafo; before that, he was then going about 'Yhen be , was up there?

A. He could go ahout some~ but he couldn't get around Yery welL

Q. Do you know how he made the trip to Galax? .A. Yes, sir. (~. 1-Iow did he make it? .A. I. took hhn in an automobile.

'Vitnes~ stand~ nside.

[78] C. ,V. HISSON.

<'. \Y. ~h.;~on, ~worn for plaintiff.

DIRl~(Jl' J~XA~IINATION.

By :sir. Draper: Q. "\Vhat is your full name·! A. C. ,V, Sis~on. (!. \Vllere do you lhe~ and who do you wot•k fo1\? A. 1. work for ~h;. Creasy. . Q. Iiow long 'verc yon wotltiug fot• the ~ot·f•Jlk & \Vest-ern

Railway Co.? A. Ten :YNtr~ this enming J ununry. Q. Are yon ~till wm·kin~ for them. ot· not·?

· A. Yes, ~dr. Q. "\Vhat department are you in now? A. In the bridge tl~pnrtlnent. Q. 'Vhat depnrtment were yon in on the 6th- of October~

1925.! . .\. (..!. A. Q. A. Q.

In thl' bridge de1,urtment . 'Vllo was y<mr foreman n:t that time? In lP2u? Yes, sit. )[r. Hmit11. You rnean Air. A. L. S1nith'!

A. Yes, sir. tl. 'Vbat hi:·idge wel'e you W(Wking on here? A. Q.

Bridg-e 250. About how far \Ytl'lt of Pulaski is Bridge 250?

---·--- ---------------

71

.A. .-l. bout. three 1niles, I should say. [79] Q. \Vhat is the character of the road ft•onl Pulaski to

- -this bJ•idge 250: is it crooked or straight, I 1nean the rail· road?

A. Very crofl ~d. Q. About what tilne did Mr. Smith assemble his force on

the morning oF Octollm' 6th. the day of this :wcident, to go to work?

non.

A. About 7 :lu. Q. "\Vhert_~ did ·he assem hle them·? .A. At the camp cars. Q. "\iVltert~ were the tamp ears'! .A. Sii.ting- ove!' lterr.- at the Norfolk & vVest.eJ•n ft'eight stn-

Q. 'Vh<~N~ did ·M:l'. ~·mith go, if nnywhere, to get orders to to taldng the n:en frmn het·e to Bridge 250?

A. I-fe wPut to the telephone, at least he said l1e was going. Q. Did he: stft rt in thnt direction? A. Yes, ~h·. . Q. From what flirection did 11e cmne back"? A. He cmne haek from the depot right to the cmnp cars. Q. "\-Vhat did he tell you when he came back? A. lfe toJd me tltnt .n would meet 52 at G-rubb. Q. He told you tlwt Jl wonlfl meet 52 ot n·rnhh?

.A. Yes, sir. [801 Q. And what cUrl you do then?

A. A~ soon as ~u pulled out w·fl eranlcefl up tlte n1ot01· (:ut· and fol1owed her up the hiil.

Q. ·Did .ron st.a ~· thP regulation cURta nee he hind l1er? A. Yes, ~ir. · Q. "\-Vbo l'an 1·.he mot·or cnr? ~l. I did. Q. l)id ,;ou rnn it nt a Rpeed wHhin the railrond t•ttle~? .A. Yes, sir. (~. ''iJ1ile ~·ou were r·unning that n1otor ear np the track go-

ing west, what train, if an~·, did :ron meet? .A. Second 90. Q. Did you get in sigl1t of it before it blew, or not·? A. No, sit•, we were in sight of it before it blew. Q. You were in sight of it before it blew? 1-\. Yes, sir·. Q. Ho\v close were )·ou to it when you fi-rst got in sight of

it?

72

.c\.. I 'vould say 200 yardH. Q. You were in charge of the motor cat•, weren't you? A. Yes, sir.

<l. \Vhat. did you (lo \vheu you ran around the cut·'re [81] and got in sight of second No. 90?

A.. I cmnmenced tl·)· ing to stop. Q. Did JOU have suffkient space to stop before it hit it,

or not'? A. Yes, sir, I got it stopped before it hit it? Q. You got it stopped bt~fore it hit it? A. Yes, dr. Q. Ho'v close to it ,lid you stop? ... '-\.. I would say in about 75 feet. Q. 'Vhere did you ~et the car st9pped w·ith reference to .

Bridge 244? . . A. I stopped on the \Vest end. Q. On the west end of tl1e bridge? A. Yes .• sh·. Q. On the bridge or off the bridge? A. Right on the far end of. the bridge. Q. This hridgc, No. 244~ i~ about how long? A.. I "rould say it is about 100 feet. Q. What is on tl1e ~ides of this bridge 244? .A. Girders. Q. "\Vhat kind of girders? .A. Upright iron girdet•s. Q. How high do they stick up above the h·ack? .. A.. I \vonld say a bon t three feet. Q. Ho\Y n1any men w·ere on that motor cat• and trailer?

~\.. ..About 15. [82] Q. ',Vhere did tlwse men jun1p off?

A. I couldn't. say a bout that. Q. Ho\v 1nany were on w·hen you stopped? A. Ther~ was four when I stopped. Q. If there \VnR f'on1· then there \Vas 11 that jumpe<l off be-

fore )'On stopped? .A. Yes, sir. Q. 'Vhy did they jump off? A. I rec~{Oll they thong·ht it wns :';afetr first, \Vas"tbe reason

(hey jutnpecl nff. Q. 'Vhere did Mr. Smith jun1p off'? .A. He jmnped off on the bridge. Q. Now: is there· anj-thiug ])et"reen those steel gh•ders and

73.

the ties on tbe bridge? .A.. There is cross girders. Q. When he jumped off on the bridge how far did he fall? A. ...\bout nine feet. Q. . '''hat. is the character of the ground that he fell on! A. It setlmed to be very rough stone. Q. How quick did -you all get back to hiin? A. I didn't come back to hin1 just exactly right at the min·

ttte, but I "·ent down from the end of the bridge· across t.he hrancl1 and w~nt under there to where lle was a.t.

Q. 'Vhat condition did you find him in when y-ou got, [ 83] there?

A. H:e was don bled up under the bridge. Q. 'Vas he bleeding·, or not? A. Yes, r-;ir, he had .-. gash cut in here (indicating) and one

on his lip. Q. 'Vas he conseiott!'; or unconscious? .A. Unconscious. Q. 'Vl1ere did you bring llim? A. To the camp car~ o\·er here at the freigllt. it.ation. Q. 'Vhere did you take him from there? ... -\.~ "r e sent him home. Q. On what train? A. On No. 14.

OROSS l~XA~IINATION.

BJ Mr. Giln1e1·: Q. Did ~~ou see D1•. DiverH that morning? A. No, sit·. . Q. ~ ou s~y ~-on took l\£r. S1uitlt hack to th~ _cnn~p ca.rR? .A. Y es, su·. . _ Q. 'Vas he taken to tlttl doctors office here before Jte went

home or do yon know? A.. I don't know· " .. hether lle was or not. Q. Yon 'Yere not. wHh him all the time nnt.il he ~ot on No.

14? [84} A. No, sir, I went hack to the bridge to work.

Q. You went hac.k to the bridge? · A.· Yes, sit·.

By l\fr. Draper: Q. 'Vho w~re these 11 n1en that went across there; were

t~ey railroad .men, or not?

74

A. Yes, sir. · · Q. Ho'v Jong had that gang been t9gether? .A. I would say they han l>een-well, there w·as hvo extra

men, two pulnp repairmeu. . . · Q. But t.he balanc.e of them had been w1tl1. the hrtdge fo1•ce for some time?

A. Yes, fair. · · Q. ·And there ·was 11 men that juntped off about the place

Mt•. Smith jumped off? A. Yes, sir.

'\Vltness stands aside.

[85] ~T. 0. IRVIN.

~f. C. Irvin, sworn for plaintiff.

DIR-ECT EXAl\IINA'fiON.

By Mr. Rhudy: . Q. Mr. Irvin, what are you follo,ving now? A. I ain't doing anytbing, I am on the pension and relief. Q. About October 6th, 1925, what· were you doing? A. I was working under Mr. S1nith. Q. For the Norfolk & "\Vf'ster·n RaiJ,va.y Co,! A. Yes, sir.

· Q. Wer~ you in the rrew Hu1t st.at·ted to bridge No. 250? A. Yes, sir. -·Q. Where did ~Ir. S1nith assemble his cre'v that morning~

where did yoll all assemble at? J~. Over here at this crossing. Q. ...~bout what time, do you recall? A. About 10 or 15 minutes before 7 o'clock. Q. Befot·e ~~ou sta.rted out did lf1·. Sntith go anY'vhere t.o

secure informutiou 'vith reference to the trains? A. ·Yes, ~ir, he went to the office, to the phone. Q. And he can1e clirect. front fhe pbone back to wltere ~·on

were? A. Yes;-sh·. Q. When_he can1e back, what information did he give you? A. He said 41 would meet 52 nt Grubb and follow 41 up

the hill. · ·. [86] Q. Follow it?

A. Yes, sir. Q. Did you all do that? A. Yes, fit•.

75'

Q. As you went up there did you stay within the speed lintit of the motot• ca1•? ,

A. Ye~, sh·, I tltink we did. t!. ·Before you got there did ~·ou tneet another train? A. Yes, sir. . · Q~ Where did you nteet it? A. At Bridge 24:4. Q. Did the train whit-;tle or tlid yon see it first! A. I don't ren1e1nber, but just about the tin1e it \vhistled

I guess I saw ·it. • Q. About that tinl(~ ~·ou sa'v it? A. Yes, sir. Q. When you first saw it about bow fa1• was it ft•om you? A. I would ~ay a couple of hundred yards. Q. When you .fit•st sanv it, which ~:;ide of the bt•idge ·were~~

you 01;1, this side or .the far side? ~-\.. On this side. Q. And the train that wns apJn•oacbing you was on tlle fai·

side? A. Ye~, sir. .

[87] Q. How ntany were on that 1notor cat• going out thet•e? A. .L just forg~t now bow n1any tlle1•e 'vere? -·

Q. You don't recall just 1tow many there. 'vere? A. No, sh•, I '"·on't :~ay just bow tnany, but something like

12 I guess, maybe tnore di• tnaybe less, or sontething 1ike that, I (lidn't pay no attention to it. ·· ·

Q. Mr. Irvin, do yo'!J remem her 'vbetbet• any of then1 juiup~ ed off before they ct·ossed tlte bridge; or not?

.A.. Yes, sit·, I mn ohe that jutnped off befo1;e they· ct~ossed the bridge. · ···

Q. Do you t•etnembet• llow n1any more jumped off? ·A. I re1netnbe1• four tnore. Q. Wlty did you juiup off before you crossed the bt•idge·? A. I was thinking it. would catch us ou the bridge; ·uid 1

would get off on the ground,. is the reason I got off~ .. Q. From the distance the train approaching you, au•l the

speed it 'vas tnaking, you thought you would tneet on Uu~ l~ridge · if you stayed on the tuot.or car? · .

A. Yes, sh·, I tJtought it was n. longer bridge than ·wl~~~t it.

was.

16

Q. A bout: w·hat Jcngt.lL is it? ..\. llehn-.en 120 an(l 160 feet. Q. And it was for l:hnt reasotl you jumped off? 4\. Yes, FJir.

Q. Did Mr. Snlitlt jump off at about the same tim~ -] YDU did?

A. I won't sny. 1 don't know as I paid clo~(~ n ttention to ~r. Smitll, I was paJing attention to what I WHJ~ ·loir•g.

Q. You were lookh•~· out for ~,.ourRelf? A. Yes, r:ir. Q. 'Vbere wus llr. Smitll the next thue ~-ou sa'"p h !m '!

'·A. He was under· til~ ln-idge. · Q. Did you go dowu there to see llim ? A. Yes, sir. Q. What 'vas llis condition when you got dow·n tiwr<~';

1

~.\. He was laying tlwre a.nd t1te lllood was (•.orning out of hls hea(l. b_ere (indicating).

Q. Was llc con~ciou:-; or unconscious? A. I wouldn't say, but he never said but" a 'W)I.J. 01.• so. and

I don't ·know ns I heard bim say ary word. Q. From his general eondition did he appea1· t:> you to he

conscious or unconscious? A. i -tell you I don't believe he knowed much.

· Q. Did you exam in~ to see wl1ere all he_ was cut o1· bruised: or did you pick him np and loud him ou· the train ;uFl lwiug hi Til

bac1i? ~\.. I helped to :•)ick llim up and put hint on tii~ pt.t~c (~<~ r. Q. And wltere dill ~ron bring li'im to? A. To Pulaski.

Q. Wllo did yu,t delh·er lliln to het~e?· [89) .\. I don't know, I never can1e with thern tlowu lleJ•e.

Q. Did you see him afte1· tlwt, on that day';' .A. No, tiir, I never ~uw bhn any more that day. Q. 'Vhat hecame of the ear you were riding ou.., A. After the train got by and everything we pur it on and

brought it ba:ck het•e to tlw depot. Q. \Vas it injut•ed in an~r way? A. Yes, sh·, it was.

No ct·oss exan1ination. 'Vitur~ss stands nside. Plaintiff rests in chief.

77

· EVIDJ~NCE INTUODUCED ON BEHAJjJt, OF DEPf~SI.>.A }1,.t.'.

(90] DR. U. 1~. l)EYTON.

Dt•. C. E. Peyton. ~'"\vo1·n for defendant.

DIUEO'r BXAliiNA'riON.

By Mr. Gilmer: Q. You are a practidng pllysician? A. Yes, ~h·. Q. How Jong have ~''ou been so engaged? A. I ha,re been working· for the Norfolk & 'Vef.\f.<:t.•lt Hail·

way Company for 45 ye-clt's I reckon. Q. A large pat·t of the time 1tere in Pulaski? ..t\. I have been J1ere all tlte tin1e except t'vo yeal'~ <.~fr in the

ai·n1y. Q. On or about October Gtll, 1925, <lo you recall gi\'ing any

1nedical attention to Mr . .A. I.~. Smith, the plaintiff here? A. Yes, sir, they ln·ought him up to the office; my office h;

ri{{ht opposite D1·. Diver~~ and tl1ey hroug·Jtt ltim there, and I took hinl over :u Dr. nin~l'l':' office, nnd we dreRsed np ]tis "~ounrls over tltere.

Q. "'hat became ot' him after he left there·! .A. He went off on .No. 14. vVe got tlu·oug·Ji with llim in

time for hin1 tc go 1lon1~ to Christiansburg. Q. )Vas )l(l hro•tght to yout· offic:e first'!

· A. He was brought U}l in the hall and I too]\ hhn to J)r. Dh~ers and W(! ures~~cl his wounds up. Tie ltad on~ on lth; fore-

1lead and one on Ills bead and one here (indicating) Hlld

(91] 've fixet1 up all his wounds and let lthn go off on the tt·ain . . Q. 'Vas lt·~ etirJ·!e<l out of the office, or clid he walk

~nvay?

fke?

A. · I do not tliink lle was <~art·ied out, I think lte walketl. Q. ''ras l1e uncons(~ious wl1en tbeJ~ lwnught llim to ~~mu.· of-

A. No, sir. . Q. Was U1ere anything about ltis eoudit.ion at. that time io indicate any, what you considered, sevet·e injuries at alJ, or not'!

A. No, sir, tbet·e was not, just thest~ wounds I spoke of :tnd they ought to lte-al up and not cause any trouhle nfterwartl~.

Q. l'bat is all that impressed you~ "ras to flx up l1is "·orm.fls,

78

and he went away? A. That is all. (l. And you don~t know where he wa::; taken"! A. .Xo. sir. that h; the laHt I en~r :o;aw of him. Q. Th~ ~et:,·iee that Jou and Dr. Divers rendered him ther~,

were they just the u~nal treatment that you would give? A. Ye~~ .;.;ir, ju:.;t. st~wcd U]J the wounds, dre~sed them, n.ntl

treated them and lmndagr .. d l1im up and sent hilnllome. .He said ·he 'vas going to ChristianHlnn·g· where his home was, and theJ hafl a ho~pital down thm·e.

[U2] CHO~~ EX.:\.}flNATJON.

J1y }fJ·. Draper: C!. You had nen~r ~e<::u llr. ~1uith before, had you, doetot-? A. I don~t t·emem 1Je1· ever Reeing hhu, I n1ay have seen him? <!. And you lut~n~f" ~een hiln since? A .. No, sh. (~. lie wn~ brought thet·e to your office for first aid trent-

Jnent"? A. Yes, sir. (.}. .A.nd then to be sent to his ltOine at Christiansburg"! ..A. Yes, sir, that i~ where he said he was going. Q. And you never made nnything hut a :-;npcrficial exanli-

nation. of llim? A. ~rhat i~ all. Q. And just <lresto:ecl the wounds in sight? A. Yes, sir. Q. You did ll()t utuh·es~ hin1? A. No, sir. Q. You (lid not attempt to diagnose hil!!l ease? A. No, sir, we just fi,xed hin1 up in shape to go hon1e. Q. You got him in ~hc.qw to go home? A. Yes, sir.

<~. _ And he ''"as led out of your office by two men sup-[!)3] pm·ting Jiim on either side, wasn't he? ·

A. He walked out, and I don't know 'vhether they were supporting l1iu or not, I reckon thev were.

Q. ~l'lterP wet·P t-·en~ralnwn \IP, there, with him? A. Yes, sit·. ~~: .And Jte W«:LH le<l down the steps and put on No. 14? A. A ftel' he got down the steps I didn't see any ntore of

/

79

hhu, fr01n that tilne ou. · 1Vitness stands aside.

(94] DR .. J. G. DAVIS, ~TR.

Dr .• T. n. DaYis~ .Jr., f',lWOI"n fol· defendant.

DIHECT EXAMINATION.

By llr. Kegley: Q. Where do ~·on live? A. Roanoke. Q. ''1'he1'P were JOU in October, 1925? A. Christiansburg. Q. '''ba.t. is your profession? A. Genet•al practitioner and assistant surgeon at that

t.iJne to Dr. Sho,valter. · Q. At Ch1•fstiansburg? A. Yes, sir. Q. Did Dr. 8hownlt,~r then have a general hospital in

Christiansburg? .A. Yes, dr. Q. 'Vere you in t.lw~·. hm~pitnl as an assistant surgeon? A. Yes, slr. Q. 'Vhal expe~·ie1we lwve you had as a general practitioner

and surgeon? A. Four J~ears. Q. 'Vere you ca11ecl to see ~Ir. A. l.J. S1nit1l about the first

of Oetober, 1925? .\. Yes, sil·. Q. Whel'tl did y·ou see him? ..:\. At hi~~ home in Christianslntrg·.

Q. .Just state to the jury what condition ~von found (95] )Jr. Smith in when you saw him?

A. \Vhen I saw 1\fr. S1nitl1 he had just a.I·rh~ed in Christianshn1·g and he had been put to bed and he contplaiued of suffering severe pain nll oyer. His "~mtnds alJOut the head ·nnd face were dressed an(i I exmnine<.l ltim beneath his clothe!':, ~nd one of his knees had a fresh wound on it, his elbow was swollen a littl~, in other words, he was hruisecl up pretty general­ly aU over and he looked like he had gotten a fall and hit all over and wns suffering intense pain, he "ras not suffering enough though to give hin1 a hypodermic tQ relieve his pain, but I

---

80

thought he required ~Oinething and I gave him smue cal*lle.t ·containing cocJein, etc., to r(llieve the pain. There was no evi· dence of any 8erious injuries that I could see at that time, no paralysis anywhere, his reflexes were not usually like we have in a severe injury, were all not•nutl except a gener~bruising all over, and I suggested to ~Ir. ~mith that he could either go to the J.Jewis Gaie Hospital or to Olli' J10spita.l if he liked, because any­body. rec.eivin~ a fall of tltat much, there might be son1ething se· rious, but I didn't think ~o, and he said unless I thought so, he prefer1•ed to sta~~ at llon1e, so he did. I dressed the wounds for hiln the next day, and repeated the prescription for 1nedicine to relieve his pain on alternate or every third day for about a week

later. I did not see ~f•·· Smith after approximately a [HH] week fcllo,vin~ ·hi-3 inju t·y, hut- he was some better whe11 I

saw hi•u: and I snAgested to hin1 that the stitches would have to be removed, and if he 'nts not able to come to the hospital to have it dont~, to call fm· me or Dr. Showalter, and I . hadn't heard anything 1nore from him, and i 'vent out of to'vn, and when I came lmc·k I r-:poke to Dr. Showalter about }Il·. Smith, and ask· ed ~bout the stitches, andlte said "he didn't send here," and after D1._ 8hownltet• fold !ne that, I called Mr. Smith over the phon~, and he said that D1·. Bramn1er was in and he baa Dt._ Dt•ammer to remove the stitch(l:;; and lw wm~ doinJr all t•ight. and that I need not come to see him.

Q. 'Vas that the last con,;ersation )~ou h~d with lft·. Smit.h following this i nju r~· a ft.lJ· ~·ou returned?

A. Ye~, ~iJ•.

Q. Did you remoYe «lllY of tlw handages the nrl'lt. tim<~ you ~H\V him? .

A. I remoyed part of them and inspe<~ted the \Vounds, so I eould make m_'l repm·t~ rmd T put a second clressina m1 them the next day. . · · ···

Q. You found llles'" euh: on tlw forehea;d and i'tlp of Ute l1enu n nd on t lte lip? -

A. Yes, ~:ir.

Q. 'Vas there nny (,ther wounrl~ that. we1•e drt~R~etl ot· r•· quired dt·essing?

.A. The t•ight elbow wns swollen as well as I reJnemiJet•, aad we put :t bandage :n·ound it, to llold, a ""et dressing·. there

[97] wasn·t nny cut, it wns jus~~ a flesh wonnd, ·and Wfl Jt~E!t put some autiscptie solution on U n.nd on either the t•iglJt or

left knee, I ant not sure which. .... Q. Did ~·tJu exnminl· bi~ hack or shoulder?

81

l\. }i"o; sh·; -~ tlid nbt. . . Q. \Vas Lhere any- comp1nint Hhout that? . . :. . . 1\. _ Iie dirl not c.omtihtin to me bf nhy paii(inJtje H!\ck. · l.t

i~ possible Jt~ c~ott¥plu inerl of som~ pain hi t-h¢ :~~q,u~t~#t-~t~t-~~~~ his chest; ·he ~nid lie nr1t(l i thh~ugh his. ebes~; but I e_pi'-1~ ~~t -~e­tect nny ft·acture or broken hbnes br dit·ect; n~ii\t {if t.end~ril:~ii

Q. -vrtts thet·e n.iiy cohiplttint of hi~ t·ight foot ijt aft,- ritlrer part of his body e:fC~})t Iii~ . .-lbc>w?

~.\.. N"tlt fhat I i'(;ht~1~hN·. . Q. ·Yon uHtde ho g~riet·al exdnHhation. of iH~ hoaj~ Eit t~Ifat

time? A. Xo; ~it·. Q. Not at ~·h(r t.ime? .A. No, sir. . . . .. . Q. ¥tin ~tlY yctti ga n~ hiin .some ined~cih~ or bap~tHcH of

soirie kind~ Vv"hat did ~rott giYe Jiliii them .lo1•? . .. : . . A. ~lust to relieve:~ the t>aiu, a capsiile of .c~eill itltd .pUin­

t-et.ine, tt.~. well ns I reiuetilber, jtist to rell~ve th~ pditi"~ ~· 'Vhat effec~ would that haYe on liis sl@~phig?. . . ~\; · H would imtttl'ally tend to t)t'ilattt;~ slOOp or tend to

(08) t-elie\:.e_ pain.an(l H person 1\•ho has beetilitii•t; Aft~t· );.OU re· HeY~ tht! piUn~ t.bP~~. usually go to sleep tt_tt; ~y! .

Q. Sleep comes natut·nlly when tlie pitiit t~ feli~tefi? A. Y(l~~ i';jl'. and of r-onrse n larger dose \VOtild put tbetit t.()

:deep. Q. Stat~ to tlte Jttr·y wheth~r Ni1·. Srliiilt -i\~tt~ tttli~T consciou~

nt. the time y<ln RAW him? A. Ye~. ~h·.

Q~ wMHd ttwre Iwxe been ~tn.r reason, ~o iur ~~.J:~u _could judge frmn yout· (~xamination of hin~, for h_hnto l~pseinto iincon· sc\ousness as a res1tlt of his frt.Jl, I iriecui ::tttei; tiUH.?

.A. 'l'l1at is a right luu·d ques~ion tonnS\ver. .A.uy injury, HJlY lick on the hea<l; Hiere is it f>ossihilit)" of getting unconscious· ness front it an)· time for a week afterward~~ hut. he was alll'ight the next. morning when I saw hint. .

Q. .Jiow long ~ottld t.hat l'lneon~ci.oii~n~~~ cf)fitrrthc Jf .it (lirl emne ·witltin u. 1\Teek afterw·nr·ds?

.A~. As n t'ltle, it m'igJ1t ~iH1tinite n i1ttle ,\riJif~; ahd fiiayhe n long tilne. . · ·

·- Q. It ,,.mild li~dy eontinue for~ ~on1e appri!ctribfe tfffie any wa~? ·

A. As n rule when it emne~ latei', yes, sir·. Q. 1 n ~rour practice a~ a general practit-ioner and as·

·.···:•

82

[99] sistant stu-geon nt the hospital, have you had oeeasion to examine any ~.-onsidet•a ble number of personal injury pa·

tients? -~ . . ·A. No lilOre than the average p~titioner would in four ye~ws' time: or an avE:rage man connected with a hospital would jn th~t time and of course, they have a rather heavy percentage of industrial surgery cnsc·s in a hospital.

Q. You Ray you baYe a considerable numbet•? .A. A considerable pe~centage of accident cases there. <~. 'Vas -;:here anything in Mt·. Smith's condition at that

time to indicate a permanent or serious injury? A. I did not see it if there was. Q. Fron•. your ~xperience could ~ .. ou see or. anticipate any

reason for pe<·uliar ne;.vous condition or highly nervous condi· tion following injuries of this character?

A. Well~ it depends entirely upon the type of I>atient you are dealing "\\-ith. One accident 'vill make a nervous wreck out of a patient, and in other~.~, as soon as they at·e over the physical

. part of it they are all rig·ht, it juRt depends on the patient you are dealing w·ii.h. . 8

Q. How would .it he "ritlt a n1nu who survived two previous accidents, one a fall of 28 feet 'vit.h a general bruising runil

[100] breaking up and nnoth-r.r a fali of 13 feet, 5 or 6 weeks prior to thi~ time? .

By l\[l'. DrnpeP: 'Ve ohjer.t. to that.

By the Cotut: 1 don't know whet.bet• he could anR.wet· that question ot· not.

·~:. ·· By Witness: [ couldn't Hnswer that question intelH· ~;·:·.· gently.

•• • ~~ \o • -·

,.';";! :.. ~·.

By }[I·. J(egley: All r.igbt, I "rill witbdra:w it .

CROS~ EXA}liNATfON.

By 1Ir Drape!': · Q. Doctor, you nt·e not l\ft'. Smith's fatnily physician?

A. No, sil'. Q. You ~ay you made a report of his condition. To whmu

did you make t:he report? A. TQ the Norfolk & \'Vestern Uailway Colllpany. Q. You ·,vere sent there by the 1'forfolk & Western Railwa,

. t

83

·company to make a report? A. Yes, sir. Q. At tlt(l time you :;aw bim, 'vhat time of day was it?· A. It was around noon, it was tight before or right after. Q. Say the accident happened at half past seven o'clock or

before eight o·clock, he wus still suffering acute pain. when you saw hbn? ·

[101] 1\. Yes, tsir. . . -Q. 'J~be pain would ,indicate that he bad received·· a

-vet-y severe slwek, \vouldn't it, considering tlie lengt1t of time which had elapsed si.nee he had the a:ccident"? ·

. .A.. It d.er,ends ,~~ what you mean by "snock," if you menn the san1e as it means to )ue, not necessarily. It takes n severe injury to 1nake very 1nuclt pain as a .rule. -

Q. And the severer rlte injury the gt·eater the shock is to t.he nervous system? ·

A. Yes, sir. Q. His head bad already been stitched up? .A. Yes, sir. Q. Did you stl·ip bi,u and 1nake a thorough exa1nination of

ltillt? A. I dill not take the dressings off. Q. Did J'OU take lli8 clothes off hhu? .A.. He had on a shirt, and I lifted his shirt up and looked

at his back and looked undet· the arms. Q. Now this injury on the el]?ow, it after,vards developed

that a bone was ln·oken in his elbow, didn't it? A'" Yes, si;l". Q. You did not distover that? A. No, sit·.

Q. An injury in'the elbo'v is in a kind of a nerv• cen·

- --------,

[102] ter, isn't it? -· · · A. The net·ve~ m·o~s through t~1e ar1n, yes, sir.

(~. Is it sometimes called tb.e funny bone? A. Yes, $h·. Q._ And it 'is a net·ve center? A. It is uot nerve center. Q. It is sor~ of a net·ve_ sub·station? .A.. No, I wouldn't &:'ly that. _ · . . Q. " 7hen is it then? · There are nervEl~ hl: th~ ar~a,.large _

net•ves go across there. ~·ow there is no accounting for the ef· feet of a sevei·e shocl{ or ""ound on· the nervous f(ysteJn of any

84

particular individual, is there? A.. Ask that question again? Q. 1'he•·e is no accounting for the effect on the :nel~V.OQ;S sy~­

tenl 0~ ~~y glv~ acci~~uf(~r {nj~ry on any parti~uhu~-h.~hi~ual, is there?' .. r;· . • . . . . • . '" .

· .~. '. I q.ou!t know that tbere is. Q. t.6u 'luive··seen people 'tluit became nervou~ wi·~cks from

i.1~j~r!es less· tllnn t11is. hrnen't j·on? · - · · 4· Y ~s, ~·i~. Q. An~ YQ\1 llnve seen people who have been sho1; a!ll to

p~~~an~ ~tlU i·etain.tl:l.eir n.erv~s a.Qd poise? · · · ·~ · · ·· · ~\. · Ye~, sir.· · · · Q. .Al\U it: 'is la1·gel r personal. e<tuntion with each patient?'

.. A. . ~; sir.. . ~ . . .. ~ . . . ..

[~~~ ~'.'\~~~~~~: ~t~~,4~. ~lil~~·

DR. A. li. SHOvVAI..jTER.

J)r. A. M.:. Showaltet'. ~worn for defendant.

lliUEO'J' EXAliiNA'flON.

BJ lir. Gihner: · ~~. ~~t\\ ~~~- ~ l!~~~~~~iqi), ~t Oh,~·is:~i~.W~~v.~~?:- .

. A. Yes, sit·. · . ~ . ~~: ~'/~~ ~\Y" ~-~~ <:OJ),~\1?~ ~ ~o~~lt~\ ~~~·~.? A. I o'vn n1ost ?~ \~' y~~' ~w- . . Q. How many yeai•s~ expei'ience have you lu~d, 1~ t~e ~f:.:U·

· eral practice and surget·.~ '! .l~. About, 21 •

. ~. J?~d ~P.:~ ~~\~: ~g~=~~~VP, W. U~,e cour~~ ~~~ ~R~J ,P.r~~~s_i~n~l du~e~rto make an exanunatwn of A. I.~. Smtth a~ ~Y. ~W1~. fi~\W~ Oct~ber 6t~, ~~!7:~~? · · · · ·

.A. Yes, su. Q. l wifh you would tell the jury what ex~M\l~~tipn :W:U

rnade, and under what cil'cumstaq~~~ Y.Q\1.1\1~«¥\\t?; · A.· I weJJt to lll". Smith's hon1e 9~~ J;l~~~~ber.. ~~-~~"' ~~5,

. f9llowlng this injury \\\ ~t.~~~~: o,f. ~~-~~ I~~~' ~H\~ ~ h~ h

[1Q4] con\"ersation witllllhit and ~~~Whl~d ~\~ t~jgh.~ ~Jb~\~: Wllwn \~ \~~~~ •;~~lJ1#1W..W.~. o~. ~ ~e~p~es~e~ I:t_il)}~ W: ew:a.1~ ·to ~lt{~

hosJlA~~.\ ~Wf:. ~~t~ 1NRJ~~iR¥ fp..~ ;lt\ ~-r~y ~xa1~~ti9;t;t, Qf t\'-t ~~­bo'f: W, ~~~~- q.9.~ (~li~Ytt l:Q.~ o:c~r.~ I}J. the 1}\<l~W~~ ;\1-J,f}r "Wi:~,

85 .

cutn.(J1~dning at that lime of pain ov-er the right elbo ,~-, ·.t1•ont che~t, and tight slionlder. I striJJped l1im off t9 t.:b.e waist. line, as be wa~ making no eontplaint of any tJ'onhle below this po.int, in fact. he said 11~ was feeling perfectly well, and after l1e said that, I. made n (~areful examination of t.he shoulder unci front che.st, eollar hone and tlw nu·iou:-; points .that might llaYe be<~n injul'ed to any <'xtent in that kind of a wo1nul, and I fou1~d no lo· cal evidence of nny a·ouhle prese11t ahout the ehest or shonl(ler

· at ·a~IJ, though lu~ complained of it beh1g sore, and paining him . . On tite rig·bt {~ibow _tlt~t·e wa:o; a point 1·ight on the tip of that.

hone, right in th<~ nifff~c there, t11Ht wn~ swollen and still souH~· w.hat. qiscolored, and UJl]:'eared to he very tender to touch. I took an X-ray pictul''~ of tlw right elbow l.Jecause of the fuet. tlint . it indicated thert~ w~H; some troul,Je there, and I found a littl() tip of. tlmt. bone, 911e of the hones of the fore-urtn where it contes up to .the elbo·w here (iudirating)~ a Yery small tip -broken lo<;)SC from ~he u1ain lJone whi<.·h did not appeat_· to he loose, that i~, i~ di.<l :uot i,uove, au<l tile ~-l'~ty picttne, ''rhiclt I will be· glad to s~1ow· ·

.vou if you wisi1, ~Shows that it has partly grown back~ not [105] g'l·own hack enough to become solid, as a fi·acture ·,yit"l. · I

took no X-ruy pi<·ture of the shoul~er and c~est f«;>r the simple reason! could tfnd no indication for it, and it is custOJ.nary in oth~r word~, to smnew hat l(lca_te the point in«:l:~c~tiug frn~­tut•es ~efore tHking X-ray· P.ictitres, a.s it 'vould he a rigl~t expen· sive nnd unce1tain job to· ~hll't :X-raying a person at the l;mck of the head for a general injtnJ <?f ~b:at kit.:td, ~n.d the reaso~1 I oi~ly took oue w~s ~.-ecause I :s.aw ·no iridicatiot~ for takhig f:HlY otl.1~r.

Aftet• tbe examination I (·~ressed the right elbow with gau~e a~rl adhesive clt·essing as n pt·o~El(.!tion i~gainst touc~i~g it or hitt.~ng it aA"ainst anyl:'hiug o1· J•n hbing hi:-; Cloth.ing·, simply for rest n_nd pro.tection. ·

Q~ Did Y'>U see nnything in that ell;l~w t}J~t 'YQ.nld ~ndic{\te that Jw would ·11ot re(!OV(\J' from thaJ injnrv l:lu~re'?

·.~ • . • 1 ! : .; • • ~. ' ,• ,•, •

A. ~~-•??. s,~r, 1 ~'\c) 119.~· . · Q.. No'y 9..~(1, ·xou e\~er -~;t;Ja~~- ~J.1Y statement to Mr. Sntitl~

there that li.e n·;1gilt ·11ot to 'i~~~,;~. ~ :X-r;ty 'nwde of ·a~ty part· of )Jimse)f because it \VUS too expensivP? .

. ..-\. No, ~ir~ nor to anyone else. · Q! ~r?,

... \... ~~~· r9)~h\1 f!.l' :.~1.~xv:ne ~:~~- . Q~. '6\t~ q.p., ih~·. f~C,Jl;tl'f}.SY X<.Hl u~at~tf at,t, X-r~;ty, if 1: t}J-:l.Q.~r­

[106) stand ~·on f~ort·\~c~tl~·. of ever:vthin~ in ''ounPe.tinJ.t wit11 th.at

8G

Irian's injury that jndieated a necessity for an X-ray? .A. Yes. ~it·.

Q. \Va~ h<} eomplaining ofltis spine to you? A. Xo, sil', he ~~aid he felt pcrfeetly well, exeept this sore­

ness through nw ft•nnf of 11 i~ c-hP~t .• right. ~boulder and right el­how.

Q. .Now. d<wtot·. yon ha ,.c dP~erihed in some detail the ex-a ruination Yon HHL<lP of ~lr. ~m itl1 on the llth of December. l whd1 ~-ou \\:onld tPll the jury whether you uutde a. sufficient ex­mninatiou rlu·t·e to H<tfj:-;f) _rour·self aH to the nature nnd 'vhat ill your jnd~ment wonl<l he the extent of tl1is man·s iujut·y; w·aH your exnmination ~ufficiently i1mpl<~ for thnt purpoHe? · · .. \. \es, 1-'il', I :·.bought ~n. _ Q. From tht• examination which you n1ade, I wish you

would tell thc jm·,\- wlwthl'I" in your judgment or opinion as ~f

phyHic.~an auy1 hing wa:-; di~eoYered there wbiclt would lead yon tu believe t1iat tlti~ lllan had ~uffered nny pet•Jna.nent. injut·ies fr·om the .aecidt•nt of Oetolt(lt· fit h. 1 H25? .

..:\. No, l (li(l not-. (!. Do you reeall lmving tt·eated ~fr. Smith or exmnin~d

hhn for injuric~ whidt lw rec·eiYe<l about fh·e or six weeks before Octo be!.· 6th, lliUHely: An nc.eident wltiell he had on Augu~t

f1 07] 20tll, ).925, clo you re<.~a11 having t.teatccl ~h·. Smit.h pc~t··

sonally fo1· inJurie:-; 1w t•ec~c·h·ed in that :t:(~(~hlent? A. Ye~:~, ~it·.

Q. })() ;vou N~eall how long ~Ir. Smith was disabled; or rath­er waR J~ept from hi:-: work fll-: a result of tliat accident of August :!0~ 1.925?

A. .Xo, sit·~ .I dou't rememhet·. I do u.ot keep the final dh;­eharge records of tho8e pntien1 s, l am not required to, and I Iiave flo way of telling exeept ft•om HWlllOry, nnd I don't kno'v just when he went luwk to work.

Q. T \Yill a~k yon tl1is question: How would you compare the injurie~ yon ohse1·n)d resulting front that accident with the iujuri(l~ l'esulting from-thf• aeeiflent of October 6, 1925, as to their f•ffect on lir. :~m ith~s gpnr~ral eondition.

By ~lt·. DratwJ·: \V<~ ol,ject to tlte qu~stiou.

B)r tlte Cotu·t: 1 r is not a q uestiou her<~ of the result of these otlu::J· injuries or whnt they w·ere at aU, but it is u sinl· pie questi.on H8 to injuri~~ in this last aceident and I sustain the objfwUon.

87

llefendan t exeept:-;.

Bv }fJ•. Gilmer: 'Ye waut. to avow for the record that the (\n~wer of the witness would he that in his opinion the injuries rt~cPivPrl in the nceident of Octoqer 6th~ 1925, were not of anv more ner·manent nature or serious nature t.han the

injuri~~ whieh ... he m:amined him for nfter the nccideBt and [10~] m·ising out of that arcident. •

By the Court: All right~ ;von can make that avowal.

.BY ~lr. Gihn~r: · Q. Doctor, in yout• examination of this ph1sintiff here on

Dt~emher 11th, did you see anything· that would indicate paraly­:-~is or partial pitralysi)"o; of his fingers or his bands or anything of that sort?

A. No, sir. Q. No\V fl·om tlte knowledge you gHined of this mau~s con­

dition, fron1 your examination and treatment of him, I \Vish you wolild tell the jury whether in your opinion, n's a physic!an, he sustained any pertnanflnt injury h~~ l'Nlson of 'the acciclent of Oc­tober 6th, 192r.?

A. I dicl nut think so nt that time. f' c•ould not find any evidence of ~u:y fracture or injurie8. Of course he had those scars on hi.s fnrehead and lip there whieh ·the histot')~ indicated were acquired on Oetoher Htl1, thong·h T could not. vouch for that .. nnd the only evidence of any injury t:hat I could find was just th~ tip end of this bone right on the elhow, that lays back at a point away from all ner,·e.~ Hnd blood ,~e~seh; mul everything else that are importnut fuuctionnlJ;v, and coneerned with tlie hand. ~Iost

of the nerves that contr·ol the front of the hand a.nd thnt give you thn n hility to ~t·ip, eome down on~t· the front of the elhow ller(l·

find)eating:)~ way. way from that, and directly opposite (109] from that. It is tene there~ h; one netTe ju~t hnc~k of that

hone, hut that. il': some inch mul a half a way fron1 the point where this fructtu·e took place and that only supplies th~ little ftnge1· and 1talf of that nt. that particular point \Vhere that fracture took place. tlte bone comes so neat>lv out ~:o the sk)n t.bere that it is likel:v to. stn~:-- sol'e a long titne an~l painful and to tak~ a good long H~1e for· it to clear up, but. so fell' ns impairing the a~tixity of the m·m is concerned~ in 1ny expPrience I han~

nevN· seen an injury of tlmt. kind produce nny disability pernut­nently, and Ct)nsequently J clicl not think hP ·would get a.nr per­lnanent disabi.lity from H.

Q. Did you see anything on t.hat examination that would

cause yon to think tltat t.ha t little ft·acture, or wj1ateve1• it 'vas, '\vould Iiot heni 1ip ali Hgilt, or \nls tliere any iildicaHon t1tere of any complicaUons of an~~ ldnd?

A. No, .~1r, none excet)t. ~ol·enei•;s a~d teh~~Hies~ whiclt coines fr(nil any fracture that lieat• tiie surfab~ of til~_body, tend~ to reii1ain soh~ and t.enu~i· roi: q1iite ri "\vhiie, blit wlU e~entually dear up.

Q. Now:. doctor~ ~·ou lw~li explained nfbbttt t.ite elbow in ~ome detail. .·\.side front that. did you observe any ot11.er wot1,nd~

·or injuries to l\'Ir. Smith that in your judgment "\toti.id pfod\i~e any jiei'iiulheht <1isahiins of nny kind hi 1iis systeiti?

[110] A. .N'o, sir, I <lid not. . . . Q. Diu yott see anything iil the iiijuHe§ thai he rece!v­

ed, fron1 your exmniuation of him, that would indi~ate fila! h(~ n1ight suffer nervo.usness, or that a normal maii; i:r .he ,\·as. a nor-1rtai nuin, wbultl sliff~r nervoliHriess as a result of l.liese ifi}uries?

A. No.

By Mr. Drapet: . . . . ..... ;. Q. l\[r. Gilrilet' nsked yo1t n number o~ iJ.liest.io~~ abo~t frh~t

yon saw. Onn yo\t see an injtu·y to the nei·i~otis systeni {viUi tlte nakeil. eye?

A.. it depend~ on the nature ~f t~e i?.jrtr~·. ·.. . . Q. 1Vell. inj'uries which prodttce nervous ~lis~i·~ets, th~S

·\"(~ry oft~n OCClli~ throUgh shock and tbronglt WOllDdS that haYe en· t'ire1~· lu~aled up, d:on~t the~·? .

. A. Yes, ~ir, hut. 1 tnight. answer JOUr question t}) ~n~ke it • tltorougli. 'Vhnt we gNwrnlly fin<l is orgaliic. Aity fiuictional

tUs'turimn(~f' of tlte nervous ~ystem, for instance, ~~ j·ou had, a nerve here (ilulicnting) torn loose, ~nid the ,\round open, and that ,,;ould rertninly lle n visihle jnjury hut another type . of nerve shock, might l)e n sl10ek to tlw ilervous· ~ysfem arid dat11~tite· doiu! ,,~hi(~h might not be ,~isilll~. .

Q. Or discN·nihle at a11? [ llll ~\. Yes, sir.

Q. fin"· long w<'re you exnm.ining- hinl ori the ltHi of D~cf\ln her? .

A.. I mntfe a vei'Y brief call at his hon1e· on the lith, I saw· him at hiA house at that time and T don't fhink I n1ade any exam­ination except. tile elbow.

Q. ·How long "·~re you exnmining him in tile hospit.a·I ?-

.A ... I couidn"t answ.e.l· that q]lestiml detjnite.ly,.but I pre· ~unte in the neighborhood of an hour or an hour aq:d· a ba.llt .front the time the X ·ray picture was taken nnd the "\Vo·uqd dressM,, it was about an hour pr a little .bit 9Ye.r. ·

Q. He WftR not on the operatinp: table foJ•.$n) .Ju:nt.r and n J.inlf? .

A. I dmft tbink we tookltilll .t~ tlw o;p~r_atigg r.wm ~t.nll. lmt.D»ly to my.of.f~ and the X-r~y room~

Q. He-waited until tltc X-l~ay pi.ctul·e Wa§ dev~lope.t)? • A.. Y~ .1~ir_, I think .so, the· b.es.t I relllelllb"er h.e. did;.l know

1ae did, ller..am;.~~ I .dress<>( I h-i!': elhow hffQre he. left.

By l\Ir. Gilmer: Do yon want t.he X-r~·-pif:ttl!ft·mtro-rlnr.ed in evidene(l? ·

~y M1· .. Dr.a p~r : I f you ~ re goi.ug t9 d9 .RQ, 1·on Jind bet-ter do .it no"~. ·

By }[r. fHim<~J·: 1 think we had ~hettet1.do );6;.. .

By liJ·. DJ>(l:per: Or you can .i»tJ•oduc~ tb'~m ]at~. ,Just [1121 f.W nll.~Jl.d and inb·oqnc~ them and let J~ s~~ tb~

By the COU•l~t: Just let the x-ra,~ picture be·~f.9llSi4ered n.~ int:r . .odn<"ed in ~'·i<lenee.

By lh\ Draper.: ·very 'vell. Q~ Now, .doctor, y.on b.ad not seenl\Ii•. Sndth be!.9.re tl1.q ~th

of October. ant1 the 1l th of neceml>et•, had ~~o~~ or.f.o.r n.~rJr tiWO month~? .

A. ·No, s!r, I l1a<l not. Q. ~ .. lnd he was still complaining at tile tJme ;¥011 $fl:W hiln ·

:1 bout soreness acro~s It is cheRt. an.d Efh9lJlder? A. Yes, ~ir. Q. I~n't that ra.ther a long ti1ne f<w .a :lll.all.i<J .ha.~~ .. ~~~g

about the eltest, nnd shoulder unless .he Ju~s received :.a ri,ght- se­rious disarr~mgement or d isorrlex· o.f sotne .of t.he'·.muscl~SJ, liga­ments or nerves?

A. It is _a rather long tinu~, ye.~. Q. .A.n<l you don't know, and you a.re not in a .. :posit_ion to

-~t-ate that that sorene~s bas not continued .toth~ dayi are~~ou? A. No, ¥ir~ I don't.l~now, I'ltave .not e~n~d:¥r~- &nith

since that tune. I don't ]\now 'vhether l ,ever .Sa\\r .him ~fter the · 12-fb ·of D·ecetnber ot• not. ·ne 'vent hack to w.orlcso,m.eti~ ~it.er that, aud l.kno"· I saw hilu on the l2ti1, .but WM~r l.e,·er.$3W ·him·after tiiat. I don't know, I know I have not·recently.

·:~·

. .. ~ ":.

90

Q. ·You don't kno'v whether that soreness continues, or [113] not?

A. No, sfr. Q. Or 'vhether the cause of it continues? A. No; sir. Q. And at the time you did examine it which \Vas two.

n1onths and four· days a:fter the accident, you did not diagnose the cause of that sot•eness, I n1ean on the 11th of December.

A. No, sir, I did not find any cause present for the soreness. Q.. Doctor, there are a number of important nerves and

musles and ligan1ents around the shoulder and across the breast, are there not?

A. Yes, sir. Q. Perhaps the most important in the body, are they not? A. I ciou't know, but: when you come down to a compa.ri·

son of their importance, they are certainly vitaJ a.nd important. Q. Tiley ·are·vitn1? A.. Yes, sh·. Q. .And ~rou couldn't tell what injury a man has received

l>ack ·there on October 6th througll tlwse portions of his body, could you, I 1nean two months afterwards?

A. It would be in1possible to say that there had been [114] no injury present there~ hut I could not find any evi·

dence, Yisible evidence, or any evidence on examination of any troublr- there to acconut for tl1e symptoms of which he was «'omplainiilg .

Q. The visible eYidence, the flesh "'oun~s, had healed within a week or so, haden't they?

A. Yes, Rit·. · ... Q. But n ~ a rule wretiches ~i..~.nrraugements of the mus·

cle's and injur~r to the net•ves arc not discernible from a casual · ·obseryatlon. are ·they? ·

A. No, they are not easily detected. Q. And they mt-ty exist and the canse for then1 mav exist? A. Yes: sir. · _Q. And be undiseoYN·ahle on P-Xamination?

. A. Y~s) Rh· . .. - . Q. You, of cour~~, did not see }fr. Sn1ith long enough to

·c -: ·~t"Dline his nervOl!S eondition at tlllit time, did you? · .. ~ ·'!: ·····A. You <'an get some id(la of a person's nervous condition

by seeing th(lm. a.s shot·t a period of time as that, but I did not detect anything \vrong with his nervon~ system at that tim(l,. ot·

91

I did not .notic.e anything. _ Q. You :iuade no ob~ervation of llin1, covering any period

of t.iine for inrlication~ of nm.·vous disorder, have you? A. No, sit-.

(115) Q. You cnnnot ~ay that his right ar_n, bas ~ot b~il wcakt,ned bv n wrench or disarrane:etnent of the nerves· or

... u . . .••

tnu~wles, cun you~ I mean tn~ldng his elbow tllere? · · .A. No, sir. Q. A n1an of ~Ir. ~m.ith'~ weight~ falling 9 feet clear <l;rop

on a rocky ~urface: tllct·e is no telling what happens to hhn, is. there, so far as sllock is coucet•ned or injury? · ·· ·' ... ~·

A. It would be pl'etty hard to tell definitely. Q. Jfaveu't ~7ou had cases or rea<l of cases whet•e a ntan

simi)ly miB~ing his step and going clown even a foot in which it so jart•ed or slwcked or disarranged him as to permanently in· jure him?

A. I .. 1on~t recall that I can reco1lect any individual expe· rience ·or any indivi(lual (•ase of a tuan falling like that.

Q. I mean even falling a fe'v inche~? A.. Ot· falling a few inelles? Q. Any sud~eu drop or ~hock that oceurs witlt force

enough. to uisarrang~~ ~OllW Of the ligatnents 01' lllUSCles or the net•vou8 system can p1·oduee n permanent. nervous w~akness and disability?

A. It would be quite possible. · Q. · And not at nll improbable in a sheer dt•op of 9 feet?

A. No, sh•;

(116] By ~l't·. Gilmer: Q. Doctor, there is one question I want to ask you in

reg~rd to t11is _.accide'nt for which you attended Mt•. Smith on-­August 2Qtb. Did you make a report of that accident?

.A. Ye~, sir. Q. Is that.your l·epott of that. accident? A. Y C'i:;, sir.

· Q. I \"lant to ~ftc,w· ·the injuries you reported in that acci~ dent, the l•)cation, uutut·fl and extent of the injui•ies. Does . it ·show that? · -

A: Yef.l, sit-.. Q. Tl1is report shows that the injuries he sUffered froni.

that 'v~t·e e:t sprain a-ad bruise of the right hand pifid 'vrist, left foot an4 a~llde, wrenched l>ack hetween the shouldet•s and tnus· cles of rigl;t ~capula !·egion. What is that? · · - ·

92

-4\.~ That is ovet· the back of tHe shoulder, right ht!re ·(indi· eating).

Q. I tlwugltt tl1at was the scalp? . ! ·

· .A.·- No. si.r~ tlter·t! is the scapula. and scalp. Q.. In t'egar.d to the ner-rou~ness and pain that Mr. ·DrapeP

has questioned you ft l:otit. pain in his chest and all tbat,. could you say that these p~iiil~ (•ould be accounted for by the accident

.. gf .:\.,tgust 20tJt. l!J25, a~ well nR the aecide1it of October [111J fftb, 1.923!

Uy ~Ir. nt•a,JJer: \Ve object to the question.

By Ml'. Gilr.ter: !t h~is n direct l>earing on the :u~~ident o.r Octo llel1 Gtlt.

:By til~ tOout·t: You can a~k hhu what he thinks caused this pain· in his shoulder and his chest, but I do not see ho:w :be ~oolt ·uu~.-er whether .it occurred f~·on1 the other ac.cident.

By M:t·. Gilmet·: I was just asking lthn bis opini~1

whether these p31ins could be as well explained front on• 00: those accidents as frotn the other.

By Mr. Draper: I will -witlldrnw tlle objection.

By Mr. Gilfi'let\: Q. How about that, doctot·? .A. Bead tbe question. (Question. read.)

lh' Mt·. Gttmet•: And I will add thi~ to tlie question: i\ssuming thet•e is claitned to l1ave been injut·ies to h-is chest or baelr on both occar-;ions? ·A: If .:you omit the history of thits condition here I would

say J'CS; ill vthet· \vords; if you take simply the ~~1.npton1s as out· lined in. that queJSt.iou an•l .t.h~ nature of tile injut·y, I wou-ld say yes.

Q. That is whai: I ineau, would the nature of the injut•y in August havf~ tlie same tendeney .to create a pern1anent nervous conditjen, if it had any t~nden<~Y iu that. directi9n, .a.s the injuey

ae ~~ei\~-ed -on Octo her 6th? . . . [118] A. I think ~o, unquestionably. .

Q. I notice ber·e in tltis ·report there was a sprain and bruise ~ the· right httnd and wrist in the August 20, 1925, acei­dentf\. Do )·ou. consider tlt~lt a.n injUl')" of tliat kind, as described het·e by you_ }VOtdd aet~ount f.or any def<.lCt in "rorking the. fingers of the right hand or p.n:y sort of stiffn(l .. ~ or ~lowing up of mo·

93

tion in those members? A. I think it is Jnoi·e apt to have caused it than the frac·

ture to the tip of the bone in the elbow·, because in that accident on August !!0, 1925, he had a. right severe sprain of the 1vrist and ankle, as outlined in· t-hat report; I don't remember which it is, wbetller it is the right ot· left, ·but the report will show·, and if it is the right wrist, I think any trouble is n1ore likely to have occut·rGd ft•mn the injury in A.ngust to the elbo1v tl1an it. was in Octobe1·.

Q. I helieve ~p: .. ain:; of au:r kind are rather slow in heal· ing; isn't that so?

A. Slo1vcr tluut a ft•acture a~ a rule.

Uy ~Ir. Draper: Q. You hnve tel:;tified that h1 the August H!Ccident there

was a s1n·aiu of the right band and wrist. If .that is what pro­duced the stiffness of the finger,. tl1e sprain would produce the ~1iffness iinmediatel~", wouldn:t it?

A. It should Ji·.:ve don<' so, and the faet is lie had a good deal of stifftiess itniuedi.ately follo1viug it.

[ .1.19] ·Q. Assutuh~g that the right hand a.nd wrist wer'~

sprained would that <'ause pain across the chest? A. It 8hou1d not have affected the chest, no, ~ir.

Q. A8sumirag, Hs a matter of· fact, that the 1nan had fully t•e<;ov~red from the injuries of August 20th, to what would you attribute this stiffness now and his pains a\fld nervousness? 'rhe first ot· last aecident?

A. .You tuean now or on tlle .llt1t of December? Q. On the 11th of .December and now·. A. On the 11th or 12th of Decetnbe1· I would assume th~1o.l

came f1•otn t:he accident of October 6th, but not having examined him since that time, !t would be right difficult for 1ne to say, it woulcl be .only a guess us to what is Ntui-:;ing th·em now, I don't kno\\·.

Q. Suppose it had <·ontinued without intermis~ion, thi~

nervousnes'3 a.nd this pain, since October 6th, the day of the ac­cident, and -that that nervousness and pain did not exi~t iniot· to Octobei· 6th, to wlMt injury would :you attrihute this pain and -nervousness and disability? _ ·

.A.. I think you would he justified in attributing· it to the injut·y of Ot~tobet• 6t.J1~ UJ25.

By ~It·. Gilmer:

94

Q. As~uming that IH.• does not suffer any injury front the August accident, you wonld attribute it tQ the Oetoller nccidentt w·onldn't yon?

.\. Ye~, ~ir.

fl20] Q. It might Yet·~· well haYe come f1•om both'? A. Yes.

(.~. I r you eou~jderecl both. 1 sn~t that true·? By :l\lr. Drape•·: I object to that. lly Mr. Hilu1Pl': I:-; 1-llnt true, or not?

.A. Yes. Q. Huppose we eon:~ider hotl1, tonsider this u1an in liit-l

present con.Jition~ <'PU ld any 1nan say from the nature of these two injtniex nud :.\~~umiHg- hi~ own !'ltatement, ancl ~~ou 1teard ltis ~h1tement, didn~t you'?

A. Ye:-:, sir. Q. .Assit.nting his own state1nent as tt•ue, and knowiu;g

what you do about the nature of tlte ac:cident, and of both inju: J·ies whielt he ~ays l1e ha~ }:Uffered, nnd both of which you E~Xal'a · ined him fo1·, can auyhodJ say to what extent either of these in­juries, of it~elf, cont;·ihntt~cl to l•i~ pr~sent r.onditi.on~ if he i~ <.'.ot·· rect in de!'.K~l·ibjng· it •,t ·

A. It w·o1.llfl he imJwssihle to suy definitely, of ~ourse. Q. Now if he had stiffness there .in his l1a11rl and fingers

HH you sa.y l1e d}(llt<ne from that sprnin und injury to his right. hand an{l "right, do you know wltether that stiff1~ess w·as there at fil·Rt. in tho~e fingt•J·~'?

.\. No. Q. From tlw .-\ u gnst 20th accident?

[121] A. 'Vbat do you mean by •~first,~' do you 1nean frmn tlt.e tinw he w~f:s first hurt in August?

Q. Yes, 8ir, from tltr- i:hlH~ of tha.t sprain? A. Mr. ~mith got hurt .on the 20th of August, and I did

not see hhn until the 2 h;t. and when I f~rst saw liiin his riaht hand. and right ankle. wet·e very much swollen and stiff n.n<l ,~~t·y pninful nnfl s01·e to i.<,ndl and I have .the X-ray pictures of both of them~ taken at that tillle, and I took the .pictures fot• fear ther.e ntight lJe a fra<:turr JWesPnt, but 've did not find any. 'rltere was right much damage ::lone to the l'ight httnd in that August accident, lm.t no. fra•?tur~. . .

Q. 'Vould it he in line with 1nedicnl experience that if the stiffnesH w:ts ther~ and dne to a ~prain, on the 21st 'vhen you saw it, that it might 1·enmin tltere for Home months aftet• t.hat?

~----- --,

95

A. Yes, sir. Q. 01~ even to the present titue, in respect to a bad sprain? A.. In respect to lmd sprains it is not only possible, but it

is more likely it would occur, because sprains heal1nueh slo'11tet• tba.n ft•actures. The nYerage fracture will heal over in !lb: \Veeks or two months, for functional purposes, but the average ~pt•ain tends to go even longer tl1an that if it is a very severe onP.~

Q. 'Vould it he in line \Yith tnedical experience that [122] there is remaining some stiffness in tho8(~ fingers f1•on1

that sprain e\·en up to this time owing to the age and the nhility of tlu~ patient to come hack to nornull conditions?

B[MI'. Draper: 'Ve ol)ject to tl1e question.

By the Court: Both sides seen1 to he absolutely deter­tuined to go into all of these other accident~, just go ahead. I \vill overrule the objection.

J?Iaintiff except:":.

By M:a.·. CHimer: 1. mn going to stick to the A\lgust acci­dent. Read the quef<tion. (Question read.) A. 'r.he on1y intelli?:ent an:o;wet· I could give to that \Vould

he t.hnt in n eerhtin 11ercenh1\ge of eases they do· exist for u long time, or tiwt. .len~th of fime~ bnt not in all cn~fl~, tl1e majorit~Y of tlrem I should sny would not last tltis long.

(~. 1Vonld the ngP of tlw pntient haYe nn)thinA" to do with 1"-ha.t feature of it? -

. .A. Yes, sir, a great deal. Q. In what way? A. A person at the nge of ~It~. Sn1itlt there would not re­

cover as quickly as n yoltnger person would. Q. Now in rega1·d to tlw~e X-rn~.- 11ictnre~. the~~ were made

on December 11th? A. No, these were pictures that were made of the August

=:' ncr.ident, and t.hose three 'vere made after the August accident and this picture wns made of that elb(}W after· the October

[12€1] accident. This i~ taken ]ooking right straight through it, with the e~how thrown i~ this position (indicating-)

and looking through here (indicating) nnd not this \Vay ( indi­cnting), and it shows that little tip of the l1one fJ•aetnred .

. ,Vitness stands aside. Court adjourns until ton1orrow· morning, Tuesday,

:\fay lOth, 1927, 9:30 a. m.

[124] TUESDA.Y. MAY lOth, 192'7. MORNING SESSION.

Cont.iRllitt-ion of Eddence on Behalf of DefadaJlt .•

C. I. J{ERR .

. 0. I. Kerr. ~worn for defendant.

lllRECT EXAM~ATIO~.

By ~[r. Giln1er : · .. Q. You nre employc.d h~· the Norfolk & Western Railway

Company? · A. Yes, sir·. .

Q. 'Vere you emplo~·etl b~· the Norfolk. & _'\V~ Railway Company on October 6th. 1925?

.A. Ye~, ~h·.

Q. In 'vhat capacity? .A.. A;~; train dispatcher~ Q. How long had yon heen occupying that. position prior

to October 6th, 1925"? .A. Since March 16th, lH1.2. Q .. Since March 16th, 1912? A. Yes, sir. · Q. Stationed at Uonnoke?

··.A. Yes, sir. · Q~· Ove1• what part of the raihYny lines doid 3--onr jurisdic·

1ion extend on Octol,er 6th, 1925? .A.. Front East Radford to 1-lri~{)l, and the N ()rt.b Oa1•olina

Branch and Saltville Branch. Q. Tell the jury what. your duties 'vere as a. dispatehel'

with reference to trains or any rolling stoclt ·passing over tl1e.., Jmrt of the line that )"Oll ha"le itese.rlbed?. Wba.t wer,

[125] your duties, gene1·n1ly speaking? A. My duties as trnin dispatcher is to give rneets to

·opposing trains, instruct about picking up stock, give proper lay·out to S£lc>tion foremen, hridge foremen nnd signal main­tainers .

. ·Q. ·In connection with your duties then \Vas it necessa1•y .for :yo.JI to ha1·e at an times kno,v1edge of tne loention of an trains? · · ~· -4 .t;._:

A. Yes, sir. - ..,. · · -· ....... ~ii&,_..Qo,,

97

Q. 'Vithin youi· t~t·ritory? . .:\. Yes, sir. Q. .And n1l other rolling ~1.ock, motor car~ or n.nyt.hing of

t.hnt ~ort? .A .. Yes, n1otor ca1•s culled up for lay·outs. Q. That i.~ ,vbat I mean, of course, they are not train.l3, but

it ,vas necessary for yon to have ~11owledge of the position of all trains, engine~ and r.nrF: that J•un over theRe Jines that you l1a.ve <lcRcribed?

A. Yes, ~il'.

Q. Now ·will you teU Ute jury wltat 1net.ho~ was in use ~y you in your office for the purpose of handling these trains and fo1• the purpose of enabling you to know of t.he loca.tion~ of tile trnin~ witl1in JOUr territorl·?

A. :r bnve n record of all of tlJPm in n1~· hand, tl•e t.roin · ~heets.'

Q. ~Tnst open thnt sheet up t.bert~ and expla.in to t.hCl '(126] jury how you lwep a, record of the trains?

A. Now tltese n re the original sheets uRed by three Hets of dispatche1•s. ~

Q. You mean hr t-hree :;;etro; of ·dispatclters, throughout 2~-bonrs?

A. Yes, sir. Q. Or eight-houJ• f.lltifh;? A. Yes, sir. Q. Just explain briefly the method· of keeping the records? A. This is the sheet of tlte 5tb and ltere is the eastbound

n1ovement, passenger trains, and here is the 'vestbound move­ment, passenger· trains: n nd here is the eastbound movement; f1•eight trains, and here is the westbound movement, freight trains. ThiR train we hn.Ye referenr.e to here was by Cla.rk nt 0:59. ~

Q. 'l'his, where your fingm· is pointin~. is a record of.t.bat trnin on thttt morning? · "1'

.~.. Yes, sir. · ·: Q. I ·want. to as.k you, in keeping the record, how do you

nscet•tai~ the facts ill orde1• to ma.ke t.his record of oppo~ing trains, lw"p is it reported to you? · ·

A.. For instance now, that train t·ight tllm·e, No. 31, the operator at Pulaski reported that train by tlJCre. at 6 o'clock and · · the dispntcher immediately puts that train doWll.. [127] Q. That is l'eported to yon? ·

.A.. Yes, sir.

BS··

Q. 'l'hen .rou innnediat(~ly put ... it OUr tllis,.shfl@td·' . • ~. Yes, ~ir. Q.:{~.so·that}10ll know.exaet1y where· .. it-is?:J . ..:\. Yes, sir. . Q .. Now t.ake·Clnrk :Stm1n1U, how do·~·ou .. get-that.? . . A.:~~ Thc.,opera:tor -reported· that hy there- .at 6 :59~·T: <}~ :. ; Her-reported that :to you? .:\.,.:.Yes;. tdr:.. Q. And 'vhat do you do about it?_

· A. I put it on tbe sheet. Q.il:. Immediately? A:,·:" .Yes,; ~ir •.

· Q .. ~ .. :In ;other words, this is a. running' record ~of ·the :mo .. : Jnent of trains, all trains? . A.:·~--~ Ye~tSil', ·all tl;ains. rrherc cannot-be -a·tJ!ain.leav.ing a.

terminal w.i.thout getting an order or clearance cnrd from:;the· train~ dispatcher.· ·

Q. This i~ an imtnediate and· continUous- ~ reeord·);: of J th-e trabl~t:as -they run? ·

A. Yes, sir, for the 24 hours. Q.:-,~:Now. I- 'vant you· to tell the jury. whether on ;the.morn·

ing of October 6th, 1925, you had a conversation over the :. dis· patcher's telephone with A. L. Snlith, the plaintiff:1n tliis...case,

I mean on the 1norning of Octoher,6th; .1'925?· ·: [128) A. Yes, sit·. · ·

.Q .... ~rom ~rotrr end of the line; 'OI~·froin:what· .. point was that .. c.onv.ersation conducted by you?·

A.':. , .. From .. Roan9ke. , Q ..... :From .yout• office? ·

. A. Yes, .sir .. ,.. . Q .•. ~~t :the. time of' that;conversation;what .infor.ination~~did

you have before you ats to the position of the trains on the•Rn.tl· fordrdivision. and· especially of the t.rainsdn thev vicinity. of Pu· ~ili? .

A. My train 1•ecord. Q. ·"'·Did .you l1av~ tl1e ·information. that· is· shoWil on tha~

sheet?., · A.· Yes, sir. Q. .Are tlw&e sheets that yoll have.'in:your·:hari<lther~, and

that .yo~ have shown nnd .. illustrated· to · thEf-~ jur-y; tile· original. train· reco:rds;? ..

A. ·Yes;· sir.

·99

Q. On file in your office? · · ·· A. ·-'···.Yes~ :sir. . . .. _ ··;. Q~ : .. :Now I··wish-·you wonld· take:tlia:t" rec~rd,and.~p~t:;:Out

~o the jury fron1 it, first. the position oCthe trains-, ·-sn.y petween· Radf<ird·' and::-l~urul Retreat or Grubb· on the Jn·ovnirig··of. Octo· b~; Gth/1925~. say ·bet,veeil the hours of six a. 1n.- and 7\-30 -a:~m.

• .A.. 'l'his sb('et was almost con1pleted .~xcepttng. -~this [129] train right here and this trahr.right here·'(indieating.)~ all

passing tt·ains were within ~the tertninal except that tram ·t•\tnning:t•ight··~there -~fndica:ti.!JtC) .

. r.Q .. :-·::w:l\'af/is:~tlla1P...,.._? · .- ..... ·:-A.-~ T-hwt--eovered. No. 488·west, and I did not--have any.-.e'On·.

neetion · \\itlf!;tbat;·u··,vas: at Glafle· 8prings, but· -this- tJ.ftllin right here was the only eastbound at that particular hour-, ·second~ :No. 90, by Clark at 6 :59. That' sheet was placed 011- ;·the':t•ack, we have a··.raek·,ahd l 'vant·to··explairi to the jut•y that we -havEFgot a rack whicti:-. is a little· bit longer than· the· train sheet·· llnd· 4this train~·sheet was·?spread nut full length on,this -rack. ·This train sheet liere ·was .. :folded up just like that (indicating) . and , . .that gtWe~the tr8!it! :dispatcher a full view 'of the m<wementj.of ~r~s train~, you see.

r~iQ. ·"~How -did that rack j';et: ·at ·an angle something1like~-tliat (iRdicatiug) ?

·.A. ':J;ust·.-l:ike·that; and the train dispatcher·isjust\lik~,this (ind1ca~ng)~ he-is sitting··right there a.ild·the train sheet is~:here.

.tSQ. :'~:Whet·e· -is· your·;pho1ie? :~~A. ·;.:.Bight--on.tlu~·side~of·me; on a table. . ...

Q.. Do you have to move your view of this·sheet~in bt'dei··to talk over the telephone?

~A. ·No, sir. [180] :Q. · l·'Will·ask you :first whether that t•ecord· sho'Ws"No.

i 41~:-was. til at· morning, a bout that. time; in tile ·vieihitv· or Pulaski? · ... · ~

A. 41 wa~ by Pulaski at r·z04. Q. Can you tell fron1 that record there whet•e the Ct!ipple

Oreek· passenget· tt·aiR ·was ur~ wheJi it left.? ' · A. Rigltt thet•e it is. 7 :23.

~,-Q. .~ That\iS"w-hen it·left Pulaski that:ulot·nmg·? A. Yes, sir.

r'ij. (You-.-.ha,·e·· ah·ead,·· ~tated.- frotn that 'l~ooord•Wher~JSec· · ond No. 90 Wits at (i :59, that. it was l•y Clark up bere;fl(hidfcltt." tng)r ·

100

A. Yes, sir. t}. Now does that rccoru show that tllere was any other·

train· in the vicinity of Pulasld between the hours say ef 6 a•d 7 :30 a. In. tltat Jnoi•ning~!

A.. '.rile. only tra.in wn~ one that wa~-,; due to leave there at 7:55 a. ru., after No. 4.1., and that is a local ft•eigbt which origi­nates at Pulaski.

Q. 'Vhe1•e does it run? A. It goes to Glade Spring. Q. Then fron1 what you have stated fr01n these origin~l

records here when you had the conversation with A. lJ. Smith on the morning of Octob~r Gtb, you 'vere in your office and you

had beiore you this train record that you haJve testifietl (131] a.bout?

... ~. Yes, sir. Q. Wilt you now please detail to the jur·y just what took

place in that conversation between you and 1-Ir. Smith? A. On the 1norning in question, Mr. Smitl1 caJ.~~l me up

and asked 1ne for a lay-out, and I gave hint the lny-out as I us­ually gave hin1 the lay-ont, and which I had done heretofore, of a.ll trains that 'vas due in that vicinity.

Q. Just detail wl1at ~ron <lid give hirn, w·hat inforntation .yoa ditl give him? · · A. I told him No. 52 would be at Grubb ot• Wytlleville for

No. 41; lfo. 72 on the usual time, and the reason why we say . "usua.l ti~e," some days No. 52 gets into Pulaski ea1•1ier thtm otlaer days on account of mainteuan<~e .,..o1·k~ that iH, unloading Htone and thingW e£ ihat description.

Q. All right, go nl1ead. A. And No. 71 out of I.Julaski 7:55. That wn~-,; on tilue <n·

the schedUle leaving tilne, nnd I think I 1uade n1ention of No. 4l . bt lfr. Smith, and he told me that train was just by a.nd I told l\im that second No. 90 was allout Pulaski.

Q. Second No. HO about Pulaski? ..:\.·· · Yes, sir.

Q. Do you recnB about the hour of daJ · that -Mr. [UI2] Smith called you?

A. ~rhere are too ultuty of these lay-outs giveu, and I coulcln:t tell the hour of Hte da)·.

Q. But· you told l1im t.hnt. ~ecoud 90 H1wuld be about Pu, la~ki tlle.W · . ·- - ·

A.. Yet, ~1' •.

Q. Or in Pulaski? A. Yes, sir.

101

Q. At the tilue you gave hhn that inforntation did ,-.u ltave these train recor-ds hefore you and in sight of your eye.~~ ·

A.. Yes, sir. Q. Tell the jury whether or not tha;t is the purpose of haY·

ing these records before you in o1•der that you might give hint the correct infol'llla.tion? .

A. It i~. Q. Do you rec~ll whether Mr. Smith told you 'vhere lte

·was going? A. I think he did, Bridge 250 I believe it was. 4. lfow under cb•ctnnstances. of that kind, when a motot'

car operator <'alls you tip and tells you 'vhere he is going, what, in the dischaq~e of your •iuty, itre you supposed to do, and ''~hat

information are you supposed to give him?

[133] By Mt·. Draper: '\Ve object to the ,question. It ~s not what he is supposed to give, but 'vhat did he give b~m.

By the Court: I will let him state·w·hat he is supposed to give him., He has a duty and let hint state what his duty is, of cotnse. ·

By lfr. Giltner: Go ahead.

<=J. \Vhnt is your duty as a dispatchm·, 'vhen an ·opera tot· calls you up and tells you whet•e he is going and what he is go-ing to do? ·

A. 'l.'he dispatcbm· always give8 t.lle trains iu that· vicinity~ ' . (~. Tbat is your <lut.y·?

A. 1.,hat it; my duty. yes, l:fir. Q. Tell t11e jury whether you perfot•nted that duty? A. I did. '- llow iong nftet .vou gave t.llat inforn1ation to Mt•. ~ini•h

on the morning of Octob~r 6tlt! did you go off duty dow-n there ... off YOUt' shift? .. .

~-\. 'l'he sbiftH itre fr on1 8 to 4 and 4 to 12 and 12 to 8, and quite frequently u. dispntdter relieves anothe1• one 5 ot• ~n tnin­utes ahead of those tin:tel:f~ but it 'vas in the ·neighbo~·Jtood 9f S o"clock. .. · ·

. Q. l'Jtat you went a way from yout· office? ~-\.. ·ye$, sir. Q. Did :vou he~ll' ofA.lrls. accident? ..

.: 1 • ~.

: .. ~ '- . - .

102

A. No, sir. [134] Q. .After\vards I mean~ after you got ha<~k to your of-

fice, or when did you hear of the accident to llr. Smith's Inotoi· car?

A. It was that ~Hllll.! night when I returned to duty,. to go to w<n·k at 12:01 a. 111.

Q. l\fr. Kerr, are yo a acquainted with the ·general nature and operation of the tlispatchee~-; phone or of the phone that Mr. ~mith was supposed. to hfiVC used on tl1is n~orning?

A. Ye~, sir. Q. I wisl1 yo~ would exphtiu tp tlH~ jury how that phone

\nn·k~:

.\. 'l'he phone that ::\Ir. Smith was using is enclosed in a little steel hox: about tfutt wide and about that high (indicating), und there i~ a little pu.~-;h button in that box and. the man using that telephone he has o push in the little push button so that he can talk to the train disr,atcher an<l then as soon as ·he :gets through, he ha.s to relea8e that push llutton to enable }lim to 1tear the conYersation fronl the train dispatcher.

Q. -So 'vllile he i~ talking to the train disp-atcher he pushes the button in and when t.he train diRpatcher- is ·talking to h1rn he relense~ the pu~h ·button·!

A. He lets it out, when the ti·aht dil'o:pat~hm·. i!:; talking to ltim he~ ··~leases that pusl• button.

Q. 'Vhen the trnin dispatcher is talking~ to him the .[.lHfi] hntton h·: t·elea.:o;P(l'?

.. \. Ye~-;, sil·. (-1. Do you know how the 1·elease of that button affects the

vhone Ht t.hh:l end of Ute line'! A. rt knoeks out nl~ noise, JOU uligltt say. tlw b·ain di!:;­

patclu.~•· cannot hear anv r\oisP of nn:y descriptiou when yon Hl't:l.

tu lldug to him. -Q. ·\Vhen you at·<) b!ild11~ to ~Juith? . .:\. -No, sir. (l. You eannot lu•HJ· nnythiug· f'I·om Smith'~ Hnd of tlw

line'! .. \. So:- sir. ·.Q. You eould not hear any convel'sation or a nytbing eb:e

from S1nith's end of Uw litH\ when ~von are talking to him'! A. 'l'hat is rig·ht. · (~. Then when he says t.he fi.rHt part of hi~ t'(>ll ,·e•·~n.tion to

;n .. u~ l1e i::-~ supposed to pn~h .in the lJittton?

108.

A. Yes, sir. . . . Q. _.So that it.will transmit. hi8 eon,:ersatiori to you?· A. Yes, sir. Q. In other words, it h; just. the move1~1ent of that puslt

button- .,vhich uepends from which end of the line the conversa­tion is cmning. Is that coJ•rect?

A. ·That is correct.. Q. ~Ir. l{err, you have stated that 'When you·· can1e

[136] back on duty that n~ght., or whenever you did come bac1t on duty-,vhen did you corne hack· on duty on the next

8hift after you had given this information? A. About ll !DO that night.· Ci. Do I understand that. is when yon heard of the acci-

flent? A. Yes, sir. Q. I 'vant to ask you ·whether or not at that tilne, 'vhen

you heard of this accidep.t, you re<~nlled any independent 1•ecol· lection of the conversation 'vith Sn1ith in regard to the trai~o,; here in this vicinity, independently of the train sheets, ,\Thether yon recall anything that you had said to him?. ·

A. I in1mediate1y kne·w that 1ny lay-out 'vasn't. con1plled with.

Q. II ow did you know that? A. I could ·figure out the Iay-oi1t without even looking nt

tbc train sheet. Q. Di4 you recall the conversation you had had witi1 him? A. Yes, sh·.

. Q. By the ""ay, thet·e is a question I omitte~ to ask you a. while· ago. Had you had conversations prior to this with Mr. Smith?

i\. Yes, sh·. Q. Inquiries n1nde by hin1 al1out trains, etc.?

[137] A. Yes, sir. Q. In those conver~at.ions lu1d second No. 90 ever been

1nentioned? A. Very nea.r f.lYery Jnorning. Q. It has been· testified ltere that Smith 'vas back on this

par.tictilar work for probably. a week after his injury in August, f\nd was "\vorking up ther·e in that neig·hborhood, I don't know· ·whetlter it was on Bridg:c 250 or some lwidge .near there. At•e you· d'efinite in your ·recollection H1a.t he called you up during that time he was ·"~Ol~khig .there nearly every JUorning. allO'llt these trains? ·

104

.A. J;~very morning·. Q. And tbnt you g:.tYe hin1 tl)P whole lay-out then just ns

yon did on this morning·! · A. Yes, ~ir.

Q. What n re tlH~se pa.p\~r~ mHl did ~~ou have anytllin~~ to do with haYing them n1ade?

A.. Those arfl 1lhotog;raphie copies of the _original train sheets.

Q. Or these sheetjO; that .von have t.e~tified to? .\. Yes, sir.

By Mr. Giltner= If ~'our Honor please, I want to file · these instead of the or~ginal.

By 1\Ir. Draper: All right.

(1.381 OROS~ EXA-~IINATION.

By l\[1•. Draper: Q. You went on clnty what ti1~1e on the dat~ of this arci·

dent? A. You n1ea.n the nlot•ning of the 6th? Q. Y.es, sir. A . .;\.bout 11:50 p.m. Q. On the 5th? A. You can say the 5th or· 6th either one.

· Q. And you had been on duty from 11 :50 p. m. until wlutt t.bne?

.A. Say eight o'clock. Q. You had been on duty for seven honrs or mot·~'? A. Eight hout·s. Q. How many ca11s did you have in that eight hours? A. I-I ow nut.ny r.a Us'? Q. Yes, sir . . A.. There is no tellhlg·. Q. The dispatche1• i;o) t.llc central for the whole raihorld? A. For the whole entire district, yes, sir. Q. And there is no telling how· many calls yon !lad. 1 )O

you. ••ecollect in detail any other conversations :you htvl on tllat day in rega t•d to calls? · ·

A. Just die san1e a~ nlwnrs~ train dispatching. putting out 1ueet orders and giving general information to myeryhot!y

.[13!l) asking for it. Q. So you cannot have any independent re~olfection

105

nand/,vou have to rely on your tra~n sheet? A. T :rei~· on tlle trni~ sheet nhsolutPl~· for t.he mnvement

of trains, ye~~ sir. Q. Now this accident happened in 1925. You c~)uld n.ot

attempt to give tlte {l~tniled c~nversation~ in tbnt length or time, ~ould you?

A. Yes, sh·. Q. 'Vllat detail~ flonvm'satiQll clid you bavQ with plohn

Smith on that flay, instead of A. I;. Smith? A. The conversation I ha£1 with him ""fi~ whnt l tohl ~[r.

Gilmer. . Q. I sa.y wbat. detailed conYersation di<l you l\nve wit:1

nny otoor n1oto.rmau on that day, I just ealled him J()hn Sn.l.ith. A. 'rhe section men eall up all over the dhTision.

. Q. I know tltey do, I kitow you have numerot}s- call~. No'v please detail n single other conversation you had on that da:v with any other man hut A .. l;. Smith?

A. 'Vhat has that to do 'vith this Smith husme$'!' Q. T think it has n great deal to do with it. NQw e.an y.o.u

..----aetail a. single other conversation yon hn<l on that day w.ltb. ~ay .. hod~r eb;e except A. IJ. Smith? Yon cannot. no it:, can ym1 ~

[140] (No answet·.) Q. Now you f.tH.J you g;n·e him the .Pro.per lay-out? A. Yes. sit".

Q. You knew· at th~ tim~ tbat you ga,~e that lay-out thee~-act location of evet·~- tl'ain on tbjs division, di<ln't :von? ·

A. Yes, sir. Q. Then please explain to tbe jury why you t~ol<l bin:t that

second no was nllont Pnlnsld: wily .diiln't yott teU bim wltcre 1t was?

A. ·"Ahont/' i::.: just ~qniva]ent. to tlle h·ain being ln Pn-1nski.

Q. And ••abontr 111eans '"in~: tlnd~r your eonstr:acti<t». J.f you knew where second No. 90 was, why .didn't you ·. tell biJn. You told him that 5~~ \Va~ at Grubb or would be at Rruht• .or 'Vythevillc for No . .fl a.ntl 72-whattrain 'vas 72?

A. 72 was a Joc~al freight out of Glade Sp:rings. Q. If you knew wh<~re .Bridge 259 "~aR what did you ten

him wllerc No. 72 ·was fot? A. Because it is a i·J·ain that he harl· to look out. f.m•. Q. 'Vhere was jt at that time? · A. It leaves Glade l';pring ou sehednle tinl(l. Q. What is scll('dnlP time of that train out of Glfulc

- - --,

106

Spring? .A. I cannot recall t.h•~ figure for -1925. Q. Here is the srhednl(~, look at it and tell me. r-·

A. 8:57. / [141] Q. Explain to tJIC jury why yon told him about No. 72

leaving Glade Spt·ing at 8 :57 when you lme,v, or rat.her you did know whe1·c HJ•idge :!rlO was, didn't )ron?

A. Yes, sir. Q. Then why did you t·el] llim about No. 71leaving Glade

Spring at 8 :57? · · A. That is the genernl ln.y-out that I give all seetion nH~n

over the division. Q. Regardless of whether it affects thein or not? Ilow

long 'vould it have taken No. 71 to run from Glade Spt•ings to here?

A. Son1e davs it is a sh<n·ter tin1c than other•s. Q. ''7fiat ti~e is the schedule a1·. Pulaski"? A. 2 :15 I believe .. Q. And before eight o'clock in the tnorning you daim that.

you told Mr. Smith oYer t-he phone where No. 71 was, at Glade Spring? ·

A. ;Not_ 71, no, si t•. Q. ""here No. 7:!. wns then, n:nd that it was on the usual

time and at Glade Spz-ing·. :xow why was it necessary fo1· you · to give llillj. that information in gh·iug 1lin1 the proper lay-out to go from Pulaski three mil(ls to Bridg·e 250, 1vhen ~o. 72. ""ou~~n't have gotten to Pulaski until 2 o'c~lock?

A. 'l'hat is the genrl'al lay-out that we always give the sec· tion fo1•en1en and signa.l mainta.iners. we give them everything

on the division. [142] Q. You tl1ink .ron gan~ them that because it was the

general lay-out? · A. Yes, sir. ~ _ Q. And there was no reason or' necessity for it? A. Certainly there was necessity for it. That train cmnt~

by his bridge, didn't it? Q. It would con1e by l1is lwidge "rithln six hours. Now

l~q'v long would it take him to run the 1notor car to that. bridge 250; it 'vouldn't have taken l1b.n 20 minutes, 1vould it?

.:\.. Of course, the mf·n 1utve to use ··their motor cars on the 1nain t1•ack~ you understillld, when they get up there, it is not just goin~ up there, but it is using the car and handling n1a· terials backwards and for""ard!'; on the lwidge.

107

_ Q. And you gave him that general lay-out for information fo1~~ivork on the bridge?

A. Yes, sh·. Q. And not for the movement of the trains. Now you to1d.

hin1 or he told you that Xo. 41. 'vas in Pulasld, didn't l1e? .~.\. He told me that 41 just passed there, yes, sir. Q. .And just before or .just after he told you that, you told­

hin1 that second 90 was about Pulaski, didn't you? That is true, Isn't it'!

A~ Yes, sil·. [143] Q. How did you expect, if second No. 90 'vas about

Pulaski, how did you expect second N 9· 90 to pass 41 6Ii a sil1gle tl•ack? - ·

A. I didn't expect ~ntythiug of. the kind: I expected -Mr. Sn1ith to stay at Pulaski for second No. 90, that is what I did, I ·expected hin1 to ·stay there. -

Q. · If you Iiad the t! ue lay-out 1Jefore you, why didn't you tell hilu, instead of sa:ving tl1at second No. 90 was about Pulaski, why didn't you say secon•l no is w·a.iting for No. 41 at Granite?

A. "\Vhat dlffe1·ence would it have lleen if I told hiln second 90 was at Granite, Jw would Jwve had to stay at Pula~ki anyway.

Q. And wouldn't he have stayed--- · A. He should !lave stayed. Q. But he :would hav-e ·known definitely where ·second No.

90 was, 'vouTdn't he"? X 0w you said that you called him up se'"­eral times and gtl.ve hhn lay-outs about second No. 90 the week before. '\Vllat was second Xu. 90!s sehedule during that 'veek at Pulaski?

A. No. 90'~ schedule~ tlue at I,ulaski 12:01 n. 111.

Q. Second No. 90 wu s in the Ita hit of being l)ehind time? A. Second 'No. 90 (•ouldn't po~sibly he on tilne, the · :fi.rst'

section couid be on time, but the second cmu1ot be. · Q. The second section u:sually follows in.close proxim­

[144] ity to the first Recti on, doesn't it? A. No, sir.

Q. Jio"r close? A. Anywhere front two to three or four o1·· five or six hours. Q. If second No. 90 then the week before "•as three hours

late, it wotild put it 1Jy I)ulaski four l1ours l,efore 1\{r. Smith would start to Bridge ~~0, won ldn't it. 'elutt is simply a inatter of calculation'? -

A. Yes, sir·:

108

Q. And "'hY were you telling ltiln about second No. 90, a tt•ain that had already passed the ,,·eek before. E:'tp"tain. tlutt to the jury?

A. TrainH do not rur; on the smne schedule e\"et·~7 uay, ~rou Ulldet•~talid. ·

Q. 1 know, IJut the.Y at·e supposed to~ and unless yon tt't.

llletnber specific lnst.anc:es of second No. 90 l>eiug mo1•e than sev­en hout•s la:te., wl1y were you telling llhn about secoucl No. 90, the '~eek befot•e?

A. The week before? Q. Y-es, sh·, ot• the day hefore, or twG _uays befQre. You te~·

. tiJWed here that you told ltin1 a bout Second No. 90? A. ltr. Smith has asked 1ne if all tlte ni~eties lwd. gone. Q. He asked y()u if aU the ninetic.'l had gone?

A. Yes, sit·, before and practically every .nwrning. [1.4G) Q. And it is your uuty to tell bim nhout all trains 1·~

other tt-ain when it is your ·aut~~, as you have stated, to give hiln the w·holc lay-out~

..t\.. Rule No. ti93 t'eqttires the ln·idge for·emen b) .inquire t'Nnn the di~patcbcl.· wltat the la~r·out is of tNdn~

Q. Yott say that h; Uu1e 693? A. Yes, sir. Q. Rnle 693 reads as follows: a69H. '\Vhell pN:tc.tif:il ble, l>efQre Hhu·ti ng on :1. tt"ip InQto;·­

ntam shonld infor·n1 ltim&-elf ltf.ii to tinw on over-uue trnin~ Slle· f~btls, etc., fin(l ascet·tain if tt·affic is normal by communicating \\-''ith the neal-e~t telegraph operatoi.· or dispatcJte~·. ·

'~lfotor car:-; 1nnst not be operate<] a~ainst c·urrent of traffic:. ou flou ble t.t"Rck uu les~ ~ome form of tn•otel~tiou i~ prnvidc<'t. ··

-Nuw wlt~Ht ht~ co1umunicate~ tlo<~H lw have to e:·o~-J·exunthu; you l'l.bout the trainf3 ut\ do you lun·e to A"in~ hint tile la.V"lJUt. ·?

A. i give ltbn t-lu.~ lay-out. Q. The-tt Wlty dn :run t·ecall ~it·. ~mith a~kin~ Y'.lll al>ont

second No. 90? · "' ·- " .:\. It. was ltis duty. Q. 'l'o ask specifically auont aJJ train~ r~'al'(Ues~ of tlw

la~ut tJ\at you give ltim? ,·\~ Yes, sir.

[100] (~ And it is -your duty to tell him about all train~ t~-gaf.-dlet:ts 1lf his nsking ,·on. i:sn't. it'?

A. Yes, sir. ·- · · Q. .And a.ll that. would huxe lJeeu ~uffiden4 as f1t~· at~ ~h·.

-----------------------------------------

109

Smith is concerned, 'vas to haYe asked you that nwrning what 'vas going east, wouldn't it?

A. No, lle 'vanted the genet,allay .. out and! gan~ ir to l1hi1. Q-. · H~ put you on fnll notice wl1ere he wn~ and where llc

wus going, didn't he? A. Yc·s, str. Q. And tl1en it becanw and it wHs your duty t11 gi \'e him

tba:t fttlllay.:ont? A. Yes, sir. Q. ..A.nd you l1ad before ~you this Hheet witfi e\·ct·y trai11

mal'k-00 on it, and notwithstanding tltat, you think you told hhu thnt seoond No. 90 was nlmut Pulaski? Now you Ita ve got it 1narked down tllere G :59, wl1at doe~ that tnean, where wn~ j!·.

then? .A.. .At Chu-k. Q. Ail(} yon lta'\'"e g-ot an ernstll'e or somcthin~ there, and

right below it 6:28. "i'JWN~ wn~ it at. () :28? A. That is 6 :3~. Q. "\~11ere was it tb~n~ A. l\[ax ]\[eadow~. f';econd Xo. '}0 was at ~fax ~Ir.adows

for 37. Q. \Vllat tlot.~s Hwt menn 7 :38, nnd whet-e was it tl\(lu·?

(1~f.i1 .A. It urrhed a:. Pulaski nt 7:38. Of c.mn·sP, haYing that accident, if it hadn~t been for that. accident th~re he

s1tonld ha,~e been at .Pula~ki nbont ·7 :25. Q. \V.hat is that little erRstu·e there. A. Just a little dirt got on the train sheet, dirty finget•:-; tw

something Jike tllat, tba t .i~ all it i~. Q. . You think tlmt ·::nme ft·om dirty fingers? ..:\. Yes, sir.

By ~Ir. Dra]wr: J want the jury to cxmnine thaL (Said train sheet is ltanded to the jury for examinuti<m.) <=!. 'Yhat was that ii'gure there in that little soiled pi:1ce

i1ntnediately belo'\v the ''9"? · A. Just a dirty finger, a spot ot· soutething like ti'JJt, ot• a

drop of ink ot· s01nething got on it. Q. Did you tt·y tu scratd1 that out? A. No, sir, but in tl1nt case tl1e figures of when a train goe.s

!>r a station has to be put down here and if you don't get it e~­act.ly rigllt here you have to era~-e it.

Q. What station Iut.l thHt gone hJ? A. Clark. Q. What·did you hnve t-o er-tuse it f<ll'·, 01· what i~ t.1tc~ fi~·urt!

110

6 :3R below there? [1.48] A. That is at ~Iax -:\[endows.

Q. "Vha.t did you l1an~ to rnake an erasure heb\'een Clark and ~fax 1.fea.dows f01·?

A. There h; no erastn·e between thc1·e except evidently a / drop of iuk and they had to scratel1 that out.

Q. Look at that carefully, i~n~t tl1ere another indistin<.~t

.. gure lJelow the figut:r. "!Y'? .A. .No, ~ir. ·

By l\Ir. Dt·aper: 1 \Voul<l like for the jur~~ to see (hat. (Said train sheet:-; nre handed to the jury for exnmiua­

tiun.) Q.. You Hay thil-: i~ tl!e original trnin slwet? A. Yes, Hir. <-l. 'Vho made those figu1·e~~ wlto made 6 :59 and :? ::JB and

G:B8? A. Charles B. Baltl. u~. Q. '\Vas he with you there nt the time? A. l-Ie was tl1e one that relieved me. Q. IIow did he mnke those fign1·e~ excevt. ft·mu nwmo1·y·

when yon left there at 8 o~clock? A. You understand. l\Ir. Draper: t'11at. train art·ivefl th.er~,

hut it ha•J a lot of Hhifting to do there~ and I clidn't get the a._. J·intl nnd leaving tilne of that train, I was away ft·om the offk!!.

Q. If he made the 1igul'es, how tlo you know alJmn. H·? A. 1'lmt train nrJ·ivcd at Pulaski. Her·ond 'No. no at

[1·lH] 7 :3~ and left 8 :LL Q. Sow the!-~e au~ your figures iu the cl:11·kt>t' ink, a l'f~n~t

Uw~:?

4\. Ye:;, sir-. · Q. And these are -~lt·. \Vhost> 1ignres in tlw lig-hter ink·! A. ~Ir. Balthu~.

Q. llow did ~vou know Uw lueiLtiou fro1n the n·ai11 :..;lwct. of l~xtra No. UO at G :59 \Yhen :\[r. Baltllus made th<· fi~.pu·e~ '?

.\. liL". Balthus didil't. mak(l t-he fignrt~s nt ( 1htt·k.

Q-. 'Vho nladc the111? ..:\. I made those flgu l'P~. Q. \Vhicit ·? A. G :5{). lt i:-; sorter l,lott:ed ot• scratched nut. I herP. Q. Yon ~tatcd a little while ago nw.t M1·. Ba I I hu~ m;uiP

tltem? A .. No, sil·. I ~aid )w utatle t.he Pulaski figures,

1.11

t-1. .And the last tigurPs ym~ 111adc on. there was 6 :59? A. Yes, sir. Q. And he made 7:88 and you n1ade G :38? .A. :No, I (lidn~t nu-tl\e no ·7 :m~. T told you. Q. 'Vho made thnt?

.A. }fr. I~a lthus made 7 :38. [1.00] Q. Ancl ron n1iHlP G:fi!l?

..-\.. Yes. Q. • Mr. ~mith had aJwa~·~ fo1lowed your. lay-out before,

hadn~t he? A. Yes. sit·. Q. Pro~nptJy anrl to t.he letter. .Now you eannot haye·any

independent recollection of this except tllat train sheet, can you? A. I have it in tny mind right today as clear as it was the

day I gaYe it, to him. simpl~· because it was r.ansecl by the ned­dent. ..

(!. But you clidn·t come back to the dispa.tcli.el"'~ office un-Hlll o~c.Iock the same dny, did you?

. .!\.. 11:50. Q. Had yon thoup.:ht allout. it any that da.y? A. No, sir. (.}. How many ca1Is ha<l you ll~Hl before that, between ll

o'elock and 8 o'clock? A. I wouldn't sa:r. Q. You had lntnclt·Nls of tlwtn. didn~t you? A. Yes, sir. Q. But for sonlCl re~1son t11is exact conversation tllat yoa

had witl1 ~It'. Smitll indelibly stmnpecl itself on your brain nncl ren1ained there frmn 8 o'clor.k nntilll o'clock at night?

A.. Yes, sir. [ 151] Q. How n1nch of tltnt tiJne were you asleep?

..A. I usually skl:lp about 8 or 9 lwurs. Q. Did you drean1 n l1out it during those 8 or 9 hours? A. No, sir, I did not. · <=~. But.)·ou kept it in ronr 1nind and you rEm1en1hercd dis4

tinctly that coin·ersation, "~ord fo1· word. Now· you did t(lll Mr. Smitl1 that No. tj2 was at (}rubh, didn~t you? ·

A.. Grubb or 1VJtheYi11e .• for No. 41., yes, sir. Q. And you claim tl~at you tola l1im 'vhere t.he Ceipplc

nreek train was? A. No, sir, I didn't Q. What is No. 71? A. That is a. local height, Pulaski to G1ade Spring.

1.12

· Q. 'Vhat 1 imc does 71 leave Pnluski? . .A. 7:55.

Q. Goinp: which wa:y? A. To Glnrle Springs. Q. That 1s g.1ing; ,,-rest., the f-1~· rit:· wa.y ~e ·was going? .A. Yes, sir. Q. You testified a while ago that you had the wholt! sh{~'4t

before :rou and gave hin1 :be \vhole lny-.out.. The C~·ipple Or·eek train is on the lay-out, isn~t it?

A.. 'Vhat {lo the Cripple Creek train~ ha,re to tlo witlt the tnnin line, pray tell me. ·

Q. ,lust as n1ucl1 a:.; No. 72 would have. [152] .A. I beg your pardon, they have nothing 'vlwh~,·et· to

do with the n1ain line. . Q. 'Vhat was sai(l n little while ago about this Cl'ipple

Creek train?

By ~Ir. Gilmer: I saw that it was on the train sheet: nnd .I ~aR the one t.lu\t said that.

By tl1e Court: Yer-;~ l\Il'. Gilmer mentioned that.

By Juror·: Q. 'Vhere is this station, Grubb? A. Between 'Vytbeville and Crockett.

By 1fr. Draper: Q. liow· far is it frotn here to Grubb? About 40 odd mile,iJ,

isn't it? .A.. No, sir. Q. Look at tlu~ ~cherlule nnd ~nd out? A. 24. Q. Fron1 here? ... .:\. Yes, sir, frmn Pulaski to Grubb. Q. 24 miies front Pnla~ki to Grnbb? .A. Yes, sir. Q. Did you conside!' that distance in ~dYing· your la.V·t>nt? A. I certainl)r did. Q. Now it is 29 1ni1es frmn here to "\Vytheville. .How ra1•

heyond 'Vytheville is Grubb? .Tust look at your sehe(lule again nnd see if you hnve given the "·rong lay-.out?

[153] ..£~. It is 25.8 to be exact. \Vhen I said 24 I was just n'lakiiig a roug·h guess at it.

By Mr. Gibuer: Q. l\Ir. Draper has asked ~~ou several questions as to why

113

you stated in your conve1•sation with l'Ir. Smith that second 90 shOuld be a.bout Ptilaski. At the time you 'vere talking to him, £.hat was the last report you luul on second 90, when you talked , .. -

~-to him? A. Dy Clark a.t G :59. Q. A.s sho·wn on that sheet? A ... Yes, sir. Q. Is there nn~· telegraph Rtation bctw·een here anrl Cht.rk? .-\... No, sir. Q~ 'Vhat kind of a siding is Uutf P.;t lle•t· tlWH! at Granite,

,,·hat is th~ railroad ··tern~cu1nrf· · · .A. Granite Pas~ing Sidil'.~!. Q. Or Blind Siding~~ A. Yes, sir·. Q. l-Ind yon any way of knn .. \ in~ t-lu~ exa•·t.loui.tion o\a rlo

rou, as a dispat':her haYe an~r wuy ;)f l\ n(•':" ill!! the \!~Hfl location of trains except as they are t•eported to the dispatcher from t.he f elegraph stations?

A.- That is all. Of e-oursc t1·ain m•e\V~ .rt•c~tJUeutry c:~H up f~·om these blind sidings ·and report in nw dent• f•ll' p:\ssenger

trains, they do that by telephone. ll54) Q. Had that beEn done on this moJ·niug~ m• not?

1\. Yes, sir.

l~y Yr. Draper: Q. Now at the f.ime JOU were tnlkiu~ in )h•. Hm"ith Recond

~o. 90 was going past 11 ~1t. G·r~nite?· · A. Yes, sh• .

. By l\Ir. Gilmer: Q. 1\11'. Drapet• &ts1H~fl yon why you werP. gh~ing information

as to train No. ·72. l nnderstoocl you to say that you cli•l that because 72 was a pa1•t of the lny-out of the trains on this nne or on yotn• diRtrict?

A. Yes, sir. _ ·' . Q. .And that wn~ ~·on1• duty. as a dispatcl~er wlwn n man·

called you _up that was going to use the main line track 'vith a 1llotor car?

A. Yes, sir. Q .... And worldug tlu.re all dn~'? ..;\. Yes, sir. Q. li1-. Drape1• nskc!l ~rou several questions as to 'vhy you·

recalled this particnlnr lay-out a.fter you came back to the office. after you had slept., and I understood you to sajr that. there wa~ ,

114

. nn- ncci(lent connected with th h;; transaction~ thiA-n.ccideflt? .. A. :Yes, sir, that was the eau.8e of .it. . ~.

Q. You stated yon receiYed many ot.het• call8, aild ·· I~ [155] don~t know, but l will m:k you whether yon receive· n_ny -~~

calls at nigJ1t f1·nm people who wttnt. to llse the·traek 'vtt~ . motor cars, I don't suppose t.h<w use the trn~ks nt night:( but.· if

···you had,. were there nn~· other nccidcnts in connection with it that you kno'v of?

A. None whatevm·. \Vitness ~tan(ls ::lside.

[156] DR. D. H. DfVER~.

Dr. J). S. Diver~~ ..;:worn for defendant.

DIR-l~f''r EX.A~IIN.ATION.

By .Mr. Gilnter : Q. · You are a 1w:wticinp: physicinn bflre in :Pulaski'? A. Yes, sir. _Q. Do you recall ~1 nutan hy the name of A. L. Sn1it.lJ~ . the

plaintiff in this cm;e, 1~Cling· brought to ~·our office, probahl.V ·by Dr. Peyton and some mer.. in the early pnrt. of O~tobe1•; 1925. and if you did an;ytlting fm· him?

·:.A.. I don't remember an~~tlting nhout the tilue·when·he wns brought there, but I 1·r-memhClr hi~ lwin~ brought thflre, httti.the tin1e, I don't remen1be1· .

. Q. T(lll the jury wluu: yon nnd D1·. Peyton did there fol~ ~im anil what you reran :-tl)()ut the woniuh: he had oil him.

-.A. · I do not rec·nll definitely about each wonnd, hut I 1'€.·

tnembet• that he .hnd S(·,·m~nl cuts or incised "\\'outul~ 011 his hody -n.fid fa~e, I tltirtk, ar-; well a~ I 1·eme1nl>ei~ we rnit some .stitches i~ them ~1nd <lressed his wounds •HHl I t·P.mP.mher thnt .. there "\\·as some question a.hout :tn injury to one of ltls hips, T don~r. recall

.:\vhieh hip i.t was, hut T rememher pnttinp: that do"rn, and he left ··rrty;office nntl ,,,.·ent to C1nistinnsburg to Dr. 'Sho"ralter, l.r.h.iuk.

Q. He wa.s in ~·on1· offit-f:l jn~t n little timP.? · A. Yes, sir. Q. And you nnfl Dt·. l,(~yton dPeHsed his wounds;? :~. Yes, sir, :first aid, tltnt is nhout nll ""'e did.

·Q._ ·Was thew} anytlting to indicate, that. you-. .::nw. on :[I'M"] ;that·occasion, or at that tin1e, that lw suffered .anv verv . ~ ~

serious injtn·ies, or permanent injuries of any sort? A~ Nut th3:t .I ren1ember, no~ sir. Q! WaS! lle consdon~ whe~ you saw him? .A... Yes, ~it-. . . -o#t' _

Q. Now how diu he leave your offite, did l!e walk Ol' _w~s ·he ~~rrietl out?

..t\. l don't rememhel·. Q~. Yt.lU had no fnrtlwr connection with the c~se, and ney~r~-

l!;aw ·hin1 any more? · · A .. No,- sir. Q. And you lm-ve not <~xmnined l1in1 ~ipce? A. No, sit·.

onoss EXi\1tiiNA'rioN.

By )[r. Druper: Q. You just gaYe him snper.fk.ial first ai(J. treatn1ent? A.. As 'veil as I rerrt<1m her it '''e cleaned the 'v~:n~nds ·out

pnd dressed him EUld pn t in son1e stitches and probably gave him ail e~o..mination for .f:·actut·es to the ar1n, ·bones o1· ribs .. Qr tq.ipgs of that kind. That is about ·the usual exan1ination y~u gi¥~ fl. patient nt that time.

Q. He was suff~ring considerably fron1 sltock at the time, wat:m.'t he?- ·

.A.. I cl()n?t renwm he1·. Q. l-Ie had to l•c Ul'i~iRted clown the ·steps to th¢, auto­

[158] mobile? A. I don't rememhc~r.

Q. And you are not in a position to testify about the pel'· maneney or e:x:tent of his .injl!ries?.

A.. No, sir, I don~t l'eJnemller whethe~· he ha.d any injury that yon could call a permanent injury, but. so fa1~ as n1y Jl~~Ip.pry goes, I don~t 1·eme1nber finding anything definitefy except tbere was smue question of somp injury to one nf his hips, I r.etnember putting that in my report.

f:!. That 'va~ n sJtort time uftet·. t:he accident? 4.- res, ·tdr.

'Vitness !o!tnnd~ n~ide.

[159]

e. 1. Kerr, recalled~

116

By )fr." Draper : .. Q. You have testified tlwt the erasure between tbc figur~h

6 :59 and 6 :38 was a dirt :;;pot.. "\"Vill yon lool~ at this point ou your train dispatcher's slleet through this tuagnifying glass an«l · see if you can discet•n any figures there, or not?

A. (Witness does so,) T tl1ink the 'vay that occurred was that I got it too high in reporting the time a.t Max l[eadows~ 6 :as, ·was n1arl{ed in thet•c, and I got it a little too high~ Train dispatchers· will do tltat~ nnd that evidently must have been the cause of it and I et•as(ld tllat 6:38 out and put it do"~ where it. belonged at }fax Meadows.

Q. Then it is not a dirt. spot'? \Vhat are those figures (in­dicating)?

i\. G :38 and it ~hon1d have been the figures at Max 1fead­O\\ys. J. got the figut·es a little too l1igh here, you see.

~y M1·. Drapet·: I would like for tile jury to exatnine that tl1l•ough this gla!-:s,

· (,fury c.xmninefo; f:atne.)

~ ~ · ·Q. This train· that ;rou changed that tilue o~, if that is· true, was the tra!n that causerl this "rrecJ\?

A. Yes, sir.

By Mr. Drape1· ~ If your llonot· please, I now ask that this original train slteet he• left in tlie record instead of the

pllotogt·apbi<' copy.

[160] lly Mr. ]{egley: 'J'he~<· are ol'iginal sheets and at·e mat­ters. of origina 1 ~·er.iH'd8.

Uy Mt·. ~)t·apr~·: ;l'lle.r can he retut·ned later.

· · · ·n~~_Witne~~: TIH~ photogt·aphic copy shows tlw ·thing.

By the Oour-t : I 1-hink it doc:-;.

By Ml'. JJrapN·: Very well, then.

same·

By the Oourt: 1'he o1·iginalf-: eau go back to tl1e files of the railroacl con1pnny. ·

By }[r. Dt•ap(lt•: But -1 would lil\e to keep the1n bet·e dur~ ing tl1e tria 1.

JJy tlie Court: V m·;v well, ~~ou cau_d~,.t~~t~ ___ --

l}Y Mr. Kegley: / Q. Mr. Ker1·, this train sheet for each telegt·aph station as

/f I undet·stand carries two ('Olumns ac.t•oss the sl1eet? / A. Yes, sir.

-· (~. \Vhet·e there is an arriving and a depai·t,ing thne, the a.'l'· riving titue is sbo,vn on the lower line and the departing tilne on the line above?

A.. Yes, sh·. Q. No'v for the next station west of 1\Iax Meado·ws the 3:1':·

riving time appears to be here 6 :12 and the departing titne 6 :3~. Tbere is only one figut•e shown for the station at Clark. '"ny is that?

A.. ·That means that the train went by there without stO})· ping. __.·

Q. And the op~rator there 1nerely reported the tune [161] that the train passed t}je telegraph station?

1\. I think the 'va.y that occurred there is this way, I . got the lint! a little bH too high for the leavii1g thue at Max Meafl­ows and I erased it out, just as good a~ I possibly could, and when the tr·ain went by C(at·k, I put it by thet·e, it shows almQ~t. like two figui•es, and w·e on it<' frequently do that. You kno'v ·a train dispatcher is busy.. nnd he hasn't got ~Ye minutes time to put a train on the shc~t, he has to.}>Ut it down rig·ht now·.

Q. The figures ,~rasecl there appeal'ed to be 6:38, do they? A. 1.'hat is what.I think they are. Q. And that was th(\ departing tune at l\Iax }feadows? A. Yes, sir, an(l I jnst got the line too high, lleing in a

hut•ry. Q. Did you lta\'e hf't'ore you the tl<~}Jut•ti ug . tbne at Max

~lca<lows whE-n you nta<le this report? A. No: sh·. C~. You lu1-vc~ not heru·<l my question. Di<l you have befot•e

you on t.llis sJteet. the (lepar·ting tune at 1\iax Meado\vs wlten you 1nade the r~p01·t to }ft•. Smitl1 of the lay-out of trains?

A. Oh, yes, sh·. Q. l'llose figures had been put down before you made that?

.A. Yes, ~ir. [162] Q. How about the departing ti.Jue or passing· _tinle at

Clat•k 'vhen you· mnde .YOUI'" ·repot•t to Mr. Sn1ith? · A. It had been recorded ou the sheet. Q. You mean it had been recor<le<l just as those figure~ at•e

tllere now? .. , . __ f;. :~" • • '·

118

A. Yes sir. ' .. ' . Q. .t\.nd wllate,'er e1·e~.sure was made, was made b~fore that..·

report was made, wa~ it not'?

< )IJjection. ~nstained.

Q. I will aHk y<ht thi!:-= <1uestion then. Has any change bee11: mnde in that sheet situ-e JI 1·. ~mith ea11ed you and you reported the lay-out of the~e t1·ain~·!

A. Xo, ~ir. Q. Now l wau t to ask you another question. · You have

Htitted f.;oJnething n:hont tlw passing of No. 41 and Secon<l 90 at <1-ranit<'. ~tate to the jtuy whetl1er you learned that Second No. !)0 was in Uranite before or after No. :11 ]tad passed Pulaski; I mean that :o:t .. cond No. 90 waH on tlte ~iding at Granite, b(~fore or nftel' No. Jl had pasRcd Jlulaski? ·

A. 'rhe conductor caUed me up as soon as he arrived there. Q. 'Vas that hefm·c ot• a ft~er yon ltad tile conversation "ritll

~ir. Smith'? A. 'rhat \Va:s heforl~.

Q. '!'hat was hPfm·p ·you htul the eonversation with Mr [ l63) Sn1ith '?

A. Yc:-:~ siJ·. (~. Can you give 1'he distance from Clark to Granite•? ..-\. It is n. little oyer three miles. Q. 'Vhere. i:.; the telPgraplt :-;tation through whi<·h the l'e­

port of the pa~sing· of No. 41 at Pulaski cmne to yon? ..:\. 'L'hut i~ the y:u·d office at the east end of Pulaski )'arcl. Q. Ifow· fn1· is that from the telephone f1·om w·hieh l\fr.

~tnith cnlled, or do yon know•! A. l would judge. about a mile. Q. 'L'lle phone from which ~ir. 8tnith called !l'l smpe 1 it.tle

di8tauce west of tlte p:tlo:':-:Pnger stntion? . \. Yes, siJ·.

\Vitne~~ staudl' asirl<-'.

H. H. Sl\11 T J-T.

H. H. Hmith, ~wol'lt f(n· defendant.

l>IHl~CT BXA~flNA'fiON.

By l\Ir. K.egley: Q. ,,Vhnt po~ition do yon hold with the Norfolk & \V<~l'\t<.•J·n

../ ... i

11!)

~ Hailwas 1.Jo.? A. · Division 8U{lt~rint.endeut. q. How long lulYe :yon heen divi~ion snpel'intendent for ·t.llf:

Xm•folk & 'Vest.ern Rnilway Co.? A. Since Decen1her, 1922. Q. State . .to tlw jury the e;'\.tent. of ~~our Jurisdiction a~ di­

. vh;ion supet•iutendent. nnd over whnt cli\·jsion ~·ou cll'f:l diyjsion 811ptwintendent?

A. I have chnr~e of the operntions of the line ft•oni Hoa­noke to Bluefield, nnfl Bristol~ 'itwhu.ling the lwauches I have general jul'i~rlic·tion ancl !':nper,·i~ion oYf:lr the employee~ in that territory. .

Q. Yon mean l,y that all employees in the maintrnanee ancl operating department~ or n 11 ilepartments?

.A. Yes, sil'. Q. That inf'.lndeR the earpetHeJ· gangs a~ wPll ns the·train-

mP.n. d<,es it? A. Yes, sil'. Q. You also h:n e jnl'isdietion on~r the train rlispatahers? A. Yes, sir. Q.

[IHnJ

You, of eonrse a1·e familhll' with thr rules of tne rail· wa,r company?

.:\. Yes, l'lir. Q. Did t11e rmupa.ny ha r(l in Oetoher, or on the (ith oi

October, 1925, any rulP OT' rule~ t•f:lgarding tlu~ operation of motor ('HI'S over the road?

A. Yes, sir. Q. I will ask you to designate those rules by ntunber ·Hlltl

if you ha.ve n hook of 1·nle!'; T ";11 nsk you to rend the ruleR to the . .Jury?

A. The rule~ fo1· the guidance of men eharged with the re­R}lOnsibility of the operatton of 1notor cars are rules 691 to (;98

·inclusive of our hook of rules and regulations for tl1e govet'litnent of our operating department, whieh was current in October;·l92o, nnd still is~ nnd the two rules most specifically otltlining the du­ties of motor cur operators with respect to keeping in touch with the train mon•rnent nrr rules mn and 693. Rhnll T renrl tltose •·nles?

Q. Yes? . A. "H9l. }[otot· .car-s ntnst not be used hJ nnyone except

upon the company's business or handled hy unauthorized pet·· sons and the presence of unauthorized persons on tltetn i~.: strict• ly- prohibite_d.

'~The opera lor nntst be familiar wj th the schedule ~f tra~n~ on the district on~r which he i~ running and 1nust .prov1de htm· self "yith currenf·. Hme-tal>le and stcuulard watch."

"693. ·\rhen practicable, l efore starting on a trip n1o· (166] torman s'tould inforn1 himsr-~f as to time on overdue

tr·ains, specials, etc., and as(~('~·tain if traffic is normal by colnll)unicating with the ne::.rest telegraph operator or clis· J.>atcher:

1\Iotor ca.rs must he Ol)erated against current of traffic on double track unless some form/ of protection is provi<led. when is that report mad~?

They must clea1• ·the 1 im~ of all passenger trains ten (10) minutes. · · -

They :will not be permitted to follo'v a train tht•ough a dou· hie track tunnel untll it is known to be cleat• ot• enter ~ double track tunnel where there is a train on the opposite track."

Q. Tho.se a.re the hvo I'Ules specifically covering a case such as the one on trial now?

·A. Yes, si~. Q~ This track from I'u laski to Bridge 250 is single track~

.I believe? ·-·A. Yes, sir. Q. Now as to scheduled train, the operator will be inform·

ed by the schedule as to the running time of trains, n;s I under· stand·you?

A. Yes, sir. Q. As to overdue tl'a.ins~ how woulcl he get his informa4

tion? ... '\. By consulting the tt·ain register 'vhich is maintained

at all open telegraph offices or by questioning the dis· . [167] patcher ot· telegraph operator.

Q. In this case the calling of the dispatcher at ·R.oa­uoke "~as the a.ppropriat~ method of ascertaining the lay·out of trains?

A. Yes, sh·, that 'vas the one n1ost readily a.vailable. Q. Now the rights of a motot• car are necessarily illferior

to the rights of train!'~ operated over the line? · · A. Yes, sir. Q. 'What r lll~'Ul is, a lllOtol• car can only be operated b~·

.tween the running of t.r~Jns, 'vhether ·regular or ·special, or what not?

A. Yes, sil•. Q. You hnve stated thnt. the dispatchers come under your

121

jli,risdiction as superintenih~nt of the divi~ion? .. ·· · A. · Yes, Rh·. ·

Q. -Are .you familhu· witli t.he dut.ies of tbe dispatchei· in c~nReS of this charncter?

A. Yes, F.ah·. ·q. l)o you ],now- lt(\w thf~ re.oord~ of 1novenient~ of trains

at•P kP-pt hy the dispAtcher? .. A. Yes, sir.

Q. · I will nsk you to ~tnte to the jury ho"r t-h~ .. ~e Jtoonrda n:re l'~quirecl to he kept nnd how they are kept? '

... -\ .. Do you. want me to go through that detail or tfi· give· ... you a detailed· explanation ahont ho'v the train-sheetA aWt mo.dD

np? (lOS] Q. YeA, 1 wotllt.~. lik~ for yon to explain it?

... \. .:\ dispa t{·b~r hns an. office with an inclined tft.illc in front of liuu on which is kept a train sheet so ruled and. print• ed: as. to provide spac(l for registering tlie consist, engines, and crews of roll. trait1s, anti their ru•t•iving an<l leaving or pasting· time at (tach statioil on the (livision. The dispatcher lia8 direct telephone cmnmuitication with ali telegraph offices nrtd• in,: adl dit.ion to. that .there ~t·e phon(lr-; located at conVtmient points jtl()ng the "lhie so that those einplo3~ee~ whose duties· require· it inay c01nmunicate "tif-h the dispatchet• to get information: about ~.rain. movements. "\\Then a train passes a telegraph office- the operator t•epotis to the di~pn teller the passing time of t~hat ttraiit· or the time the train arrh!cs and-leaves his office and the dis· pfttcher tnnkes nn· immecHate t•ecord of thnt in ink on the proper p1ac~ on tht~ train slteet..

· Q. \ .. ott menn by thi~t in th~- coluntn op}losit.e t.b('. nnme· of the st.ation?

.-\... . "Yes. si 1·.

· Q .. · No,\r 'vl1erc a train lms ~u art1lvin~ an£1 dfl_t)ni•tintt tim{{,. ·wb~tl H: tllat tep_ort nmde.?

.A. tt ]s ot•ditmt·ity mad<' ·when tJ1c tl•n.in leaves dtu stAtion, unless tbc ~ispa1tc~ber, 1nigJtt. ~peoifieall~+ af'k t.h_, oparnt.ttr if~ tha.t trnin Juttl rtr·rh'ed there ve·:·. ··

Q. 'fhat is, the op~rator wonld then report t.Jle time of nr· rival ntid time of flflt)nt·tttl'e ftt one ~~ort?

[ JtlQ] A. Y e~, sir. · Q~ lf n traiu shoul~ remain nn~· consldatdble length

of tim(\ nt n ~tation whn1: wou)fl be t.J1e nAnn] cu~otn in·~ ing?

A. Ordinarii~~- t~1e ~~nne procedure, the arriving and \~Y.~

122

ing times are l'eported t!)gethel~ _unle&s for. ~o~e re~sQn t~e ?W~ patcher should ask dul'inp: the time the tratn ts at that ~t.~t~~' \vhether it is there. .

Q. Mr. Smith, .-lo you know Mr. C. I. l{err;· the dispatchel' wlto has just been .on the 'vitness stand?

A. Yes, sh~. Q. Ho"r long have you kno,vn }{r. l{err? .A. lf'or about 12 ye~us. . .. Q. Yon stated Jf•U have been division superintendent

since 1922? A. Yes, sir. Q~ 'Vei,e you connected with the railroad prior to that

tin1e; if so, in what ca]Jac.ity? A. I "ras counech~fl wit.J1 the eng.ineeriug depat'tment of

the railroad on ·a clivi~ion "rest of Bluefi'~ld fr01n 1910 to June, 1913, and.after that, fot· four years~ I was assistant road master and road master on thf' division between Roanoke Bluefield ·and .Bristol, until 1.917; then as assi~tant superintendent· of the 1ines west-of'Blue:field for 2 1-2 years, and since 191~ to date, as

aflsistant sup(\ritttcndent of the lines between Roanoke. [170] Bluefield and Bristol. .

· Q. · I belim·e it. has heen testifted that l!r. Ket .. r ·has been a train dispatch~r !'ti.nce 1.912 or for about 1.3 years. 'In these different positif)JW that you have held, how long l1ave you been know in~ Mt•. ·}\err :1 nil heen familiar 'vith his work as train dispnt~het•? · . .. '

.A. He was a di~patc.lter wbeu I came to Pulaski as assist"'. nnt ro~d tnastet~ jfi l.!Jl3 nnd I first knew him then.

Q. I will ask J"(IU to state, l\Ir. Smith, in a general way, what at•e the qualifications required for a t1•ain dispatcher? ·

A. He tuust ha vca n t.hm·ough knowledge of the operating rules, pai,ticularly tho'::tl. ·govm·ning. and respeeting the ·niov~ ment and llandlii1g of frnins, nud he must be a man who has ShOWJl hy erevious SeJ•\•icr tlwt; Jie is car~ful rind dependable, nnd of good character. ·

Q!: I will ask yoi1 to stnte to the jury how Mr. Kerr st-ands in meetings tltese test!'-;'? ·

By lfr. Drapcar: lVe object toJ~at question. ·.· . .

By_ the Court : That is not th~ usual question to ask to p1•ove his genernl reputation.

By Mr. ](egley:

, Q~ ·Do you know his general reputation as an operator. in . the. ·depai;tment in. which he has served and his general reputa­

tion as a cat•eful, painstaking· and dependable man~ [171] · f•J:ojaction. -Ov•.t"ruled.

fl. Do you know ~Ir. Kerr's ·general reputation in tl1at t•espect? ·,

A.· Yes. sir, -his repittation as a train dispatcher is good ~nd to my knowledge be bas nevet· been responsible for· a·. train ticcident of any so~·t~ ·. · · . · · ·

By-Mt·. Draper: I move to ~t.~·ike that out.

By the CoUl't : 0 r cout•se tltat i~ improper. ..t~ man nlight .be-1.00 pet .. cent efftdent· for 25 years· and then make

·a· mistake. · · · ..

By Mr. KeglE~y: Q •. ·Do ~"on }{now Mr. l{e•·es genm·al reputatioq as a man

of . .truth. and veracity'! A. Yes, sir, it .. i~ good, t=J tlle best of 1ny kno-\vledge. = I

· never heard it questioned. · Q. Mr. Kerr, I helie,~e, hns been directly under -your -juris·

diction as assistant s:upea·intendent and superintendent since 1919~ Is tlutt correct!.

A. Yes, sit· . . Q. Do you -nnderst-iUld the oper:ttiou of these telephone

lines referred tons th~ dispat<·ller~s pllon<~ or line connecti~g tile box in Pulaski with ·the dispai.•~ber's office in Roanoke?

A. Yes, sir. · .. Q.. I \ViJl a~k you to explain to the jury how that is-·oper·

ated and es})ecially wi.th reference to the man at the Pulaski end, and the one :1t tlle diSJ.latclter's office end; tJdking

[172] .. over ·that line? . · A. -·The particul:ir tf!lephone which ~Ir. Sn1ith used on·

the day in question .'\\'as a phon~ enclose<] in a small metal box lo· cated over here al)out baH wny between out' fi·eight and passen~ ger station hung on 'l tel€:phone line pole u~nd 'vas sintilar to a. series of phones of tlu~ same natare whi~li we have loc.ated at con· venient points all along t.he line frmn East Radford tQ Bristol. It consists of.an eat· Jliece· tba~, the man geti:; the conversation frQ~tthe,.othet• ~ud of the line ovet·, and .a receiver into which· he .. talks. It luu.; a push button, cut out deYice :whicn n1ust be press­.ed ~. w~~u th.~ ~ser i~ talking in or(fer th:at the telephone may

124

r~~iv~ P.i.s sound and tr~111snlit it to ·the pe~'ISQn to whom ,he is t"'n .. -:- · · ~J.· . ·'"...

"Q. "f_ou l\lltd.U .the 'llso· ut! tltft tole phone here. tQ 'tranm1dt to·\. · the dispatcher at the <~tl1PI' en<l of tlae "line? , . . . :

A:, ¥r~tt. ·HU', ' Q. .Allt·igb~: go n:h •. md. A. .ADd <Vice ·vcu~u. lle t1eitmfles tbat push button ·when the

.diftpateluw ·iM tatlkiug to him. rrbo -object of ·that is· to ·ke~p aU umiecessarv noise~ off. Uw Jine hecarise there arQ betwoeu!fllnnd 100 of those p)loue::; Oll that one dispat!~ller's circutt .. aiMl accumu­lative effect of a nuJ~l ber of srnalt· nob;es coming ln -on the line ~ ~triou~ ittlephoues wotJ.ld uu:t~e the line ~useless.

:Q. Aa :l·mtdftrsttnld, tlliH is what you 1nigl)t Ctlll a.--one­[113] way line, that. is: !"hat w1leu tiLe party is qpeaking ·from

· this end he do(ls not hem• ft•om tl1e otllet• en~? ~<\.. Yf!S, sir, tliat is t·ight. -Q. ¥nu ·eamlot lteat• ·from the othel' end, and wben the

pu.1•ty ~fi spealdug ft•otn tbH ot11er end, tlle one spea~i~ at .that end; ·enunot. ·ltea1~ nuyt.11h1:~r -going" on nt this end .of t~1e line-?

A. No, sb·, he cnn11ot~ lP>t unless ·both )la"e tbeh--pusb but· -tons Pff~~sed in at hlt~ ~t\me tbne and tbeu there is a eonfliet.

~- Vou -say ·if llotlt puslt llUttous "~ere pushed itt at ·the san1e time t11(:1r·e woulil lJc• f:onf.u~ion and a conflie~ o"e~· tile line·'?"

A. 1 .. es: ~i_t·.

:.Q. .Cmi-ld a coln;ul'H"l.: ion be ·cart·ied ou tbat wuy? A. }\~t ·inlellig(~lltl,r~ no~ ~ir. ~'he ,di~pateher_· has the same

pu~oJh but.oo11 aJ•t•ang-eluent' at his end uf the line wlrl~lt lte ~'Orks wi.th a foot _l>eddle leavin~ his lmuds ft•ee. ·

~· ·~Plte dispt-tt.dler· ·is I·H~eiving nud . transwittiu.g . a.nd reM (jtJP4blg all ·along· \\"-bile h~ il-l tm uut~r?

A.. · Y-es, si1·. Q. llt·. S1nlth, in fvHowiug out the rules 'v}lieh you have

1•eatl ~the jlll'Y win: yon ~tate to "the jury 'vhetller 'it is ~he duty bf 1he disputehet· t.u give -tlte lay-out on this mot·ning say

[Uf&~ 1lt -ttttthl Nu. -~1. wll.ielt was au ea~tbound train. due some tin-.e .afte1~ the taU ·\\·as made by .Mr. Stnitb? . ,

:A• i~b~ di~1""W!ii4.11Ler iH ~h-h1g tlte lay-out tries and it is hi~ . <lu-ey ·.if~. give :inf&I~matiou abnut all train~ whiclt ·ntav affect tlte

~1' • • •

upevation.t&f the -motu1• ca1· on ·the tt·ip ur in tbe ~iCintty tp the. jltiiBt ~l!e the inqailtet· i~ going to "~or·i\:, and a~ No . . 1'~ was an eat&.t~UJlfl ti•a.in Whie]l \WJUld !-vet tllel'e ~on~e JioUl'S }ater,. it Wll$

~ pmettoo, .~Jw.ngb not. ab~&lu.tel~~ essentia-l f01.• that t•artif;~

1.25

lila1· tdp, to give .the time of that train or the location of it. ·-' Q. Is =the Jntor1natimt ns to eastbound tt•ains, giving the position of 'No. -7.2, No. 52 an(l second No. 90, did that cover east· bound freight truius \~'ttlt ln tl1e distl'ict ·ft•om ·Glade Spring east,

/. at that tilne? A. ·Yes, sir, until.late thi!t evening. Q. So if he gave the iufor1nation as to the location of No.

72 it was not necessary but good practice to give it? A. Yes, sit·. It was not ~ssent.ial to ·give infor1nation about

a train which would uot ~et there for about five o1• six llotu·s, but iu the usual procedut·e ir. is g·)Od practice to cover all tl'ains wlu~b n1ay be ~pected thet•e dut•iug tile time the inquirer wants to use .the ~tt~ack. ·

Q. .As. to passenger il'rtins, eastbound passenger trains, were ·tbose~scb.,duled tl·ains?

[175] A. Yes, .sir. · Q. And tlu: scl.edult~ infornwd the operator of t.he ·car

w.hen they nlight be ~-pe<:ted nt tltis place? · A. 'Yes, sir. -Q. "\Yn~ tlii~ train s(~<tOn<l.OO a scheduled .t~ain.? .,\ •.. It w·as a section ol' a ~cbe(luled train. 'Q. Do you koow,-in.n. gm1eral way,_how tllis ser.ond section

of No. 90 ran, th.at is, whflt]Ie!.' it t•au nbout on regular No. ·90'-s ~cbedule or uear that thne?

A. Fol' a nwntlt pre<:ediug the dnte in ·queMtiun the train laad been art~iving at Fubudti almost any time between about 3 a. n1. and 6 :45 or 1 a. n1.

Q. Undet• ltule 693~ wh:ielt you lta,·e t·ead to tlte jut·y, it is the .duty .:Qf an operator of a tnotot· .cat• befot~e starting ·on a trip to infot·utldnu.lelf as to the tinu: of overdue trains,-·specials. etc.'!

A. Yes, sir. Q. ~tate to the jury wllethel' thir.; ~ecoutl No. 90 eomes

witltin :the clussifica.tion of all Gvet~due or Kpecial tt·ain? · A. Y e~, sh~, until 12 ltours aftel' the schooule 1igures or tht~

fignt·e~ ~~~~wn as 'the schedule of No. 90 on any day, n section oi' No. UO should be e:tpected ·b)· 'utyone 'vho had not soon the train }JitSt; cu.t·1·:ring signals indkating that tltere ·wa~ a succeeding sec­tion.

(!. Ju CH.fole a t-og ,~et·~ation ~UCb US the Ulle lJetweeu the P..7G] plaintiff llere and the.dil!lpatchel~, that the man at tbis end

of tile line 'vas disturl.>ed l>y a. noise. of a passing train, antl uitlnot beat• the :'ult:mes~e :Cl~Onl the dispatehmo, waa tl!et'e nn~r

,-

126

way that the dispatcher cnnld know that there had been that di& f.urbance at this end unless the plaintiff or the man talking to\ hun had called hint and notified hhn of the fact? · \.

A. No, sir. Q. In other wul'd;~, !~o fen· as he knew, his message had

gone t h roug11? ~ Yes, sit·.

CROf-;8 EXA1IINATION.

By llr. 1lt«lper: Q. Suppose the tuan at this end was to call a second iJime

after the disturbance~ It~ would know, 'vouldn't he, the full ef· feet of ihe 1nessage?

A. If tlle 1nan at tlth: end told ltin1 tlu~:t he did not heal~

and asked hint to repeat, thett the di§lpqtcher would understand that he did not g·et it. .

· · Q. You have stated it i~ good practice for a·dispatchel'· to give the full lay-out fol' practkally the _whole day?

A. Jlot• a t·e;l~mw.hle wor-king thrte . . Q. Now on the tnot•ning of this accident, there was No. 52,

-and that was to meet at Grubb or Wytheville. [177] A. Yes~ sir.

Q. $72 left (Hade SI,riugs at about what time? A. · .A.bout 8 o'clo<~li:.

· Q. No. 71, tlu1t ·'.vns a \vestboutul train out of Pulaski at T :!'i5?

A.. Y e~, sir. Q. -.And second :No. no which wa~ reported to be about Pu­

laski 'Vere tho~ nll thP trr.ins that 'vere going east ot• west that lllot·ning? .

A. All freight tl•ain:s, only t.be usual practice uf an extra train that went w·e~t about fiYe or sL~ o'clock tliat ufte1•noon.

Q. Ifow alJout ra~st-nget· train No. 14: and the other pa~· :senger trains? .

A. Tiley "··ere sc"ltedn led trains, shown ou tlte schedule. and nsunlly rnn close to theh· schedule figut·e. ·

(!. \Vasn't No. u2 slwwn Ull the sclledulc? A.. Yes, si1· .

. Q. \Vaw.71 sllo" u ou the: schedule?· A.. Yes, sir. . (). And No. 90 '"·<"\~ :-:lwwu on the sch~ul~?

12'1' -<. '\ .-\. .. ¥es. . . ., Q~ . But the dispatclwr cUd not ment.ion No. 1..(! which rait

about that time? A. I think that at that. t-i1ne it rE'ached Pulaski ·about 9:45

or 9:50. [178] Q. Now· you bare read the l'Ules here governing the

ope1·ation of motor cars. 1\_nd the first one was No. 691. This motor car at the time of the acci<lent. was being use<l for company husinesr-:: 'vasn't it?

A. YP.s. . Q. And handled hy nn ~natborizE.l.d person, 'vasn't it? A. Yc~.

· Q. These camp car~ "yere locntecl that 1norning nenr the freight depot, were they not?

A. Yes. Q. A.nd where was the nearest ~fficial railroad phone? A. Tbe nearest offieial one available at th-at time was the

conductor's ~ffice, about half "Tay between the freight and pas-senger station. ·

Q. 'Vus that tl~e ph0ne ~lr. Smith went to? .A.. Yes, sir, I presume it ·was. Q. · Did he call up the proper party to ascertain a bout

overdue trains or schedul~s o1· lay-outs? .. \. Yes, sir. · Q. And it wa.s the daty of the opera.tor or dispatcher upon

being called up for this pur•po8e, to give him full and complete information, 'vas it not-?

.A. Yes. Q. You kno'v _nothing- ahont the accident yourself., or any·

tiling of that kind? . A. No, sir, I didn't see it.

[179] 'Vitness stands aside.

~T. S. GOLDSMITH.

J. S. Goldsmith, sworn for rlefendnnt.

DI~-EC'r EXAMINATION.

By lfr. Gilmer : Q. Are you in the· f!m.ploy of the Not•folk & Wes~rn Rail·

wa.:y Company? ...-\. Yes, sir~ .

128

"""" Q. "\Vere you in the emllloy nf t.he Norfolk & Westetn in_// . the spring of 19:!6?

A~ · Yes, sil·. . . (:!. '\VhilP .~. I;. ~mU.h was Wtwkin~ at (ja.mhrin. or MlriR­

t.iansburg station n~ u !la.te "Tat.chtnnn? · ·A. ·Yes, sir.

Q. Ilow Ion~ h.lrl .nm h()(m there at that point, at Chris· fiansbttt•g?

1\. Abont 2 1-2 yE~rs now. Q. In whnt (~npncit.t? . A. Ag.e.!!t.

Q. As ag·ent of t.Ju· ·Norfolk & Western. Raihvay Co. [180] there?

A. Yes, sir. . Q. "rere you acqnaintefi "·it.b .:\, L. Smit-b· befor«l he· came

there as a gate 'vatchma~? A. Yes, sir.

· Q. How long lun·e you hc~en ncquaintecl with- biin-f A.. A good many Jears, J>robably 15 or 20t 1 cottldn't· sa.y

just exactly ho"r long, but a number of. y-ears. Q. How has yom· aCfJUaintanceship 'vitlt bim been formed,.

ot• what oppot·tunities had yo11 to know him? A. I had come i:n contact with him, I saw son1c. of · him

when he was a carpenter foreman, I believe, and would see him when lie would come nround with his. gang ot. men, doing wor.k.

Q. Were you evc~r agent for the Norfolk & Western·. Bail• 'vay Company at Sale:m, 'ra..?

A. .Yes, sir. Q. Was that bef·Jre you 'vent to Christiansbttrg.?· A. Yes, sir. Q. You were Uu~1·e f<w mnn~T yenrs?

· A.. Y()..s, sir. Q. Now how ft•Equ,•ntly did you see- Mr. Sntith while he

'vas in the discharge of his duties the.re at Christiansburg as f.l.

gate watchman? · A. I think I saw hhu u~.arl~· every day. ·

Q. How far wa(rf tbt~ plac-e-]ie stayed· in,· the t.ower t.hn t. [181] he r-;tayed in ns watcltman, f1•on1 youi· office?

A. A.b<;>ltt 1•00 feet ,H. a little 1nore. Q. ..:\.nd you ~a"· ltim nlnwst. daily·? .. .:\... Yes, sir. Q. Did you ba,·e any conYel'Hations with bim dttJiing. the

day, casual or otherwi~e, while he was there?

129

.A. I don't 1."emenlb(ll• anytliing, only· speaking to him as t c 'vp~l\cl·pass.l>y; jtist.pass n word or t'vo. . _ ~- ----~Q~-~-As agent ther·e, do you lla.ve local supervision over the general iay-o\tt of die business of t.lle rai1road · company, the ~a.tes and the freight hou~e, etc.? - .A. TJ1e gates really rlml"t conic u~de1~ Jny-jurisdictio~, but T kinda keep a 'vatcll over them, you kno,v.. .

Q. That is one of tl1e agent's duties, if; .f.o · have general ovPrsigbt. of wl1at. ito; al)ont the station?

A. . Yes, sir. Q. Now during the tune illat~ l\ir. Sn1ith was., ·wat~hman

there, did you hear him make any complaints of.any·sort_? ~t\., ~ No, .sir. Q .. -Did-he make any c01nplaint.s of any-sort. to you about

having diffictJ.lty .. in )Jt~rforJning his duties a.~-a 'vatchinan? A.. lie did not. . Q. Did you obscrYe nnytbing about hint tbat indicated any

difference in him dtu•iug that period while he was~theve, and dur· ing the time ~'OU -1uld known him prior . to · · Jrls coming

· [182] there? ··c-. .,~~

.. t\,. .No11e ,,~Itatc,·m~. · ;· .· -·- · Q. Do you rP.call ha,~ing~a.n.y. communicat.ion with him or.

t.alk with him immediately following the crossingJaccident there?· A. Yes,-sh·. I had just gone.home, had just·gotten home

up in Christinpsburg 'Yh~n t.hey_phoned to nte·thatt.h1s accident had happened. ,.

- - ·n-y the Court: I do1it f~nk 'it is· neeessary to· go into a.ll of that.· Just tell what conversation )you had ~ith ~ ...

. 'lJion't .. care whether you ilad gone home or anythi4g. about' that, just tell the c~nversation? · , ·: .. ~-:, i

..-\.. \Ve11, I retnl'DC!! to the place nnd-it sh·uck me that prob· ably 1\fr. Smith won}{{ l>e nnner,·ed frc1u having an accident of t~is kind and I sent fl man up~iuto his box to relieve ltim and he ~ent the nunt hnck and sa iii be was nll right and did not ne(ld any relief. ·

nr lir. Drap(;'r·: _ Q. Sent Whfif niail r.ac){?' -. A. Seud the mnn bttt"!k that I sent to t•(llieve him.

n:v lir .. nrapel·: 1 ol,jeet to that.

·- ·· · if~-'Objec.tion' overruled.

: . -~- ! ·- "

130

,. !lY }!r •. Gihner: . _ · -Q. ~Did you see hint ~hortly afte~rd$? . . •

. _ A. I. s.ent this Jnan ·llaclt a ~ecQnd 'time- u.d ~ t'otd:-·him ·t&go ··up tllnd take his place and .ten l'lr~. Smltlr:to· :come:"dQwtr~to my · bffiee and tell us how thiA. a.edden~. happeueif .

. Q. l)id he ·~mne down? {l8i-i) -.. A.. ·-He eame· down.

Q. You sa"~ hbn then? -A. 'Yes, sir. · Q. 'Vhat was his condition? A. He 'vas just as cool and collected a~.yqu:nr~tright now .

• L Q. · ·! Did you see any signs of nervousness? ~A. -; None~,vhate·,rer. Q. In explaining the ac~ident did he make·. a~ :elaim that

, ~8" Was due to· a.ny· defeet in his- ann? ~A. :~:No,· sirr he· didn't- say a ·word about:: his·. aria Q. Or his inabiUty to lo\Vel' the gates?

·-~A. ''-No, ·sir. ·flQ. !·~id·he-

r:By !}fr. · Drll.pet•: Don~t lead the wi·tness~.just:a:ek~Jdm what he did. _

By th~ Cou::-t : Go ahead, we want tQ get l thro:ugll- ._with · ,:i~ lead hin1 et• al:IJ -other .way;. just._go.ahead, · :!By ·Mr. Giirner: If your- honor p_lea~e. :th:ia i.'ic:e~tltemel.\"' : important, ;to on;? defense. ;r·.lQ. ·-~~iDid· he. mak·e any :clahn- on tbat oeca.sioli?

A. No, sh·, be did not--.,Q. ~ Wait.a.ntinute, nn.til I finHih my.;qnestion. ·:ilid.he make

. ~y .claim on that .occa~ion that his :inability. ·t0:4ow~Jth&~·gatef wa~due to any det(·ct in the,mechanism .. :of@.e-·:~?

,. [184] A. No, sir, lw il.id·not. · No cross examinntion.

· Wit~s ~tnnds t:JAide.

· 0. W. SUMPT!lR ..

C. "r· Sumpter~ sworn for defendant.

DIRECT EX.A;MIN4~.

By Mr. Gilmer: Q. Wer~ you iu.the empltly..ofthe·'Narf~llt ·&:Woe~ern Rail·

wa.y Company in the spring of 1926;-'JW.hil~-Mr.-;~fli~~fSrnjth here

was~tlte: g~te. watchiu~. at: Chdstiansburg? A:.~ Yes, ~tr. Q. Did you -:;ee hhn occasionally wl1ile he was ther.e? .A . .-,... Probably.. once or twice ·a 'veek. Q~ · WJiat '\vas your <'onnection with· the railway company7

A. Assistant agent. [185] Q. - Do you H!cal1 about 1ww long lle was there? ....

A. No, I de;~n0tt·- I .,vas uot at-. the- freight station when he was employed, :t ·'\vas at the passenger station, and I don't l'emember the circumstances or .about the time he first went. on .. thea gates.- .

Q. But you sa'v hhu probabJy on an average of twice·,- a"·: week?

AL Y-,!sir. Q. ·· Ha.d you •kno.wn .him ... priot·- to his accident. on .October· 6,.~

1925-?-. A~ Yes; sit•. ~. I·wish-5Y9U ~'vould state whethet! you saw -any difference

in lrls appearance O~'!·ltis:a.ctions..while he. was- tl1ere emplo~ed-ta3" a gate watchman frotn bis general condition as you knew;it p11ior to ()ctobett ·6tb,..·1925.?,

A.: I ~hoticed no difference. Q;, .. Did .you Jlotice any ·signs· of.-nervousness about.hiJn? · .:\;' No~ sir. · Q .... "' Did:,he:evel!, . .iu .. any convet•sation 'Yith you; make aaty

coatplalnt::about tiie. inju.r:y affeeting . .the- dischat•ge of·· his: dutie&:·­as watchlilan there? ·

·A.t No(tdv. Q. Di(i'you see llhn rig-ht shortly after the accident tbfWt·~

iu~whieh these-p,e~l(-1 were injut•ed? A. I iluagine wjthiL pt•obably 2 1-2 hour~ after that.

[18G.l-. · Q.· ;;-. How-di<l·:vou,ha.ppen. to .see hhn? A. I was taking. his stateme.nt..

Q. Itid he t~om<· to g'ive a statmnent about it?­A.. Yes, ~irs.:

Q. 'VJ1at ·was Ws con•Ution then? A. .[ was "·ery n1uell surptised, at. his .coolness_ and ·collect·

iveness. _ Q~!.:·~ '~~H,.tltelte aU)"!'todfPls·of·nel-vousness· t1bout l1in1 at all"? .A. No, ~ir, not tltnt" I emJJld·notit:e. Q. lli<l l1e give you n. statement? ~~ .. ·Y~~sir~l~vrectly -cleaT~-

13~.

Q. In t•otmeetiou 1vith the.:-;i.atement did he m_!lk~~ -'~~Y-.e~~ ~ planation of the acciilent based on ltis inability b~-r~a._son ~f a

. defecti~c arn_t_, t9 J~wer. those ga~es? . .: :. A. ·No. sh·~

· . Q. Or· malce anv co.mp1nint about the mechanisrn ·of tlu:~ gates? I •• ·• ., .. -

A. ~9., -~-jr; ··r , _

Dy·Mr. Draper:-:· -Q .. Did. you know t'!l.lt h·~ ~ad a broken ut•n} or£' broken·

bone mlii~ afih'f"'~~·"''· r· : . . . . ' ! .. ' ,.. ··- : ': J ._,_ ...

. A.. No, sir, I did not. . __ , Q. You saw hin1 about once or twice ~t "\veek for a·bout

[1S7) a ntonth 'vltile be was at CJu·istiansburg? . A. I really don't remetnber the exact lengt't of t.im~ he ·'

wa~- o~t-~,~P.~~~-~!?r~_~h(l. aceid~ut. . . _ --~ .. , .... · ·· ~· Q~ It~-has de,relo}lei:l ft•om tl1e evtdence that 1t wus about' a

m6n~h:-a.n(t ''you 'siiw "him '>.n~~ ol'. ~'\vice cl w~~k ?~., .. .. . . . ·:· ... ~~- Ye§/sir. . ., ' '

Q. Then you met hhn allOut eight thnes ·a_nd );OU just met hint casually in passing? - · · . · ·. -· · ·. _ - ~

A;· "\Ve would stop and sr•enk and £liscuss .. souie_mut~~rs, ~ut I had no length con,ret•sation 'vitb lthii. · · ·

7rrQ. ·roll just' casuaii:{nl·et hiin ana ·pi!-s~ed· the' t~rie of '<iay nnd would go oli"'ciiltl fi•oin your observation "he~w~s :not ne~vou~? .•

A. 1 not!ced no change n.t al1, no differen~e. r' :- ... ·. _.,. ·

Q. · And frmn yout· observation he was not cripple{!' in any way? -. r- - r· 1 ,. ~ .. • • • • • ..... - ~

.A. I paid no attent.jon to it· if. lie was, and l'nevei· noticed it. ·· · .r• ··.~ '~ •· -- · .. - . .

Q. You have neveJ: taken an r COltJ·~e in "nu~dieiue ul· an.r· tlting of tltat kind? •

A. No, sif: .~ ·· Q. 01• any special ~;btdy of ner,·uu~ diseases?· · A.: No, sir. ··· _,_ : ·

·· · ft.!'· "'bat 'is· Jfotlr oc~cupn tion ·? A.. A. ntilroad 1nan, assistant agent . ... ,~ Q. · .Assista~1t agc~nt for the Xol'folk & '\Ve.~tei·h Rail-

[188] way C01upany at Cltril'ltiatisburg? · · · · · A.. Yes. ~:;ir.

· Q. '\Vhat is· the size of ()bristianslipl'·g~·\vlf~t 'jij' the~ popula·

133

tion? . · A. i think tlle-towu of Ohristianshur;i ~has approxintat~ly 3,000 people.

Tl1e foregoing is all of the evidence of the plaintiff and (189] the defendant, as :"et fOJ~th in tbe heading of. this cet•tifi·

eate, including X-ray pllotogra])lts intr()duced with the testimol!Y of tlle wit!less Dt'. A. M. Showalter (p. 112 Transcript • of.~he ·Evidence)., and Train Slteet intt·oduced with ·the evidenc<~ of the witness C. I. I~err (page 160 Transcript).

'l'este: This 17th da,\r of Octo bet•, 1927. . . IIORACE SUTHERLAND,

: · Judge.

[190] CJ~RT!FIOATJi~ NO. II.

By Mt•. Gihnet·: --. ·' Q. ·no y01i' r~call li:tving; tr(~ated Mr. Sntitli or exatuined

hint for inJuries which he received about five or six weeks before~. October 6th, na,meJy: .An nccident which be had on August 20th, 1925, do you recall having freat.ed li1•. Sn1ith personally fit• in· jut·ies 11~ reeeived in that accident:?

A~- Yes, ·sir. ·- ,. ~. --Q. Do· you recaiT hoW lorig ·}It•. Sinith was · disabled,. 01·

rather was kept ft·om -his wo1·k as n 1•esult of that accident of August 20, 1925?

·A. No, sh·, I don~t t'emetnber. I do ·not- keep tlle final dis· cllarg·e •·ecords of tllose pntient.s, I am. not required to, an(l I lla.ve 110 wa.y of telling except ft•om ntemor,,~_. and I don't kno"9

just when lte went. back to work. Q. t 'viii ask ymf thf.~ question: How would you c·ontt}are

the injuries ·-you obl{ei-ved I'esu'lting- ft•oJn that accident. with tht~ injtu·ies resulting fr01n the accident of October 6, 1925~ ns to tlleit· erfect on lfr. Smith's. general condition?·

··-· - . Uy }It·! DrHp_~r · JY.e _object to t-he question.

ny the Court: It is not a que~tion here of tile result of these tither injm-ies- o1·'""hat tltey ·,vere at all, but it is a sim· 'ple question as to inJ•il'ies in 'this last-accident and·I su~i:ain

thc--·ubjection. - ·

[ 191) nefeudunt ~x:~ept~!-

lly Mt·. Gihner : \Ve 'vaut to a vow for the record that . . the answel· of the \t1hiess wotil<l lie t.llat~ in his opinion the

injuries:.a·ooeived .in -the accident. of ·Octoben·.G~··l925;·w-ere not of any n1ore pe1·tnanent nature or serioU.~ natut•e..thae::f theinju1ies; which .. ltc ~xanrlned him .fo1~ after..that;.ace.ideut. · and arisin~ out- of.tltat! accident. ·

By the- Cout•t: All rig~ht~ you can 1nake·tlta.tuvowal.

The: Jast= .fm·egoiug q t!.e~tion . pt·opound·ed: by. counsel· fm· ·.de~~ feu.dant to Dr. A. M. Showaltet•, a "Titne~s fot' defendant~· ~)n.his~ examination in ciL.ief, n s· tiet f~orth :on. page 107,. ()f:~ the: ·TI!ansc11}_}t of .Testintetty~ ·.wa~ ·upon ,tlle objection of counsel for the ·plain· tiff, ... tlisttllowed by tlte Court, and defendant excepted. Counsel at the tbne avowed for tlwrecord that the answe1• of the witness to the qi1estion exc~pted would be- as .hereinbefore set forth.;in: this certUicate.

Teste: 'l'hi~ 17 day of October, 1921.

[192l

HORACE: SU':l'HSBLAND; .· .ru~····.

CER'J~1FICATE .NO; III..

'l'he following instructions granted a.t the requ.~t.:of .plain­tiff, and ,:defendant; ~respecHvely; a81-hereinafter .. nGtedt--.a~:ae-alftthe instrueti.ons tltat~ wet•e granted on tlte b'ial :of -th~·case. :

Instructions Given fot'' ·Plaintiff.·

t .,·

·~ ~v'-tHven~ Exceptiolt,. ·

'l'he·<Oow-t itt~tructs: -~he jury that the law ·iilt'}Jo~es the duty on·"~evet•y ·upera,tor· of a "l'ttitroad ~to :use- reasoBahlt! etwe and~-~~ .. tiou coinlneusut·ate witlt t:lte drcunu~tances of·eu.clt·case, 'to ·pro~ · teet its eutployee.~ operating 1notor· trucks, on its tJ·acka~·: fl'Olll· euJlisiou with train,.,; on its truck~, and if the jQ.ry belilwe frum the evidence tluit the defendant con1pany failed iu thil'.i t·espect, nnd·· tfutt~ its Dispatcher Kert·; was informed b)~· the- plaintiff t.bati.lte·~v-unt<.'<l to -go to Cridb"e No. 250,: and askecl· "'What, have yon"coiuing_east?"" ·and H\,i;he'h~ :is- No. ·Fiftv-two?~~ u.nddf: theY fnt'thet· believe ft•mu the evidence that Dispat,~lter<Kert• ·faiJe;l to use reusonable cat·e to coinJuunicate to the plaintiff that tht~ ~t·ain No. '90, refet•red to in the evidenee was coming: eosl. and · th_at ~~melt ·failure ·to ,U8e ·rea~ouable cave to· co1muuuicate· to the

. j,il&intiff. of the- \Yh~renbouts· of: train ,No.- 90; Wtl:i· t lte .. J.H'OXw

[193] imnte cause of the plaintiff receiving tlie injut•ies descriiJ. .. ,~d-1li;biF.t"'·llfitice; i;hl\t they shoilldnnd forJhe;plirintiff;:nn·

· ·lesa ~they believe ·from the ev!denee ·thnt :said .information was so ~·--eoo.mnuni~.nted·to nnd• not. l•eard by -the. plaintiff.

. •· n~!-.flfve~Exeeption.

The Cour·t instructs t.he·-jut•y llmt if · the defeudapt relies .upon the nileged contt·ibutory negligen~e of tl1e plaintiff, to de·

·;· feat t~S'· action; 'tim t: ~the. burden :of pt·o\ri.ng · · 'the · ~n'brihutory ,-.negligenee· rests· on t1le d~fendant, ant.! ~it ·.will· not· avail~e:.-de· : ·fendant-uniP.~Rit: haR heen· est..-tblished by· a. pr.eponderanee;Df\the .. :e\riden('e.

'rhe Ccnrt instructs the jury that negligence is ;the. failure to do· what a reasona,ble and prudent pet•son 'vould ordinarily hav·e done under the circums;tunceS'·of 'the situation, or doing what such a person under existing circumstances would not

-;.·have dene,- ::the• essence, of~the ·fault -being in the· omi&.qo~ o1• com­.... mismon.

(194] ~'D"-Given-Ex~eption.

.'f-lle.Caurt:instJruct~.:the;jury ·that t.lie requirement -that. the T;plaintiff~nlust-prn.,?e. his ntse··by a: preponderance of .the ·evidence ~·.:haScto,do·. \Vith ·tbe·w~ight,f>f -evidenc.e,! and, if.after the;..jury .. eon· ;3siders.dtllt.he. e:vident'e ~-in· the ease, both ·.the· 'eVidenc·e :Jtor · .the

plain1iiff•.1llld .. the, evidenee-.for the··defendant; including; all--eir· ... enmstance~t.· as:well aCJ· dit•ect testimony~ .and fl'om · all this tiie : :jury:lbelieve ~that itlle ·eyidence ··in fa vot• of tlie plaintiff eutw:.eighs :)that ,.of 1he :defendant;: tw~..n .in ~the sli'ghtest·~aegnee,.· :then,. this . .re·

quirement as to the burden ef;proof t)B the plaintiff is fully.7met.

''E'·'~il:en-Exeeption.

"The Court instructs. the jut•y that. t.he credibility -o.f the wit· nesses is a question e:xclushiely .. for the jury, and the.J~w is .. tlla,t, "~here a number of 'vitnesses testify, directly opposite to each. other, the jury Js;.not~ bouoo to regard tlie· weight of evidence. .as equally balanced. The ju~·y haYe. the right to determine, from t.lte appearance of·tlte witnesses ou the stand, their interest and

: . .lliaSrJf ~y,Jnithe-outoome· of the .case~ .tooir. means'llf jnforma·

18() ... l.:

. .t.ion, their mannct• of testifying, and their appal•ent :candor and '. · fail'ness, their apparent il@telligence or lack of intelli·

[ 195] gen<·e, and frmn an the otlte~~ !'=tu·r·ounding circumstan002 appearinp: on the t.rial, '\rhich w1tnesses are more worthy

of credit, and tn ;rive oretlit -nccor(ljn:~'l~1•

Tlte CQurt in~t.i·uct.s Uw ,jur); that a n1an confl~outed with ··sudden pet·il, orcasioned lay tlle default of another, may net neg· : ligently, and his negligent act may cause his injury, yet his neg·

ligeri.ce in tbis respect, is not. 1n the eye of the law, the .pr.o~imate cause of the injury, hecan~e a 1na.n thus placed by the fault of another, is not t•eqnhiecl 1 o exercise the· ·presence of mind 'vb;ich is required of a rem;;onnhl_v prnd~nt man nuder ordinary cir· ·.

·. ·cun1stances~

"'G''-Given-Exception.

The Court .ln~trncts the.jury that:;if·tltey believe from the evidence that the plaintiff is entitled to recover damag~ ·as claimed in his notice, in t'~timHting his damages t.hey should find .that Slnn with reference to: ·

1. The pecuniar·y los.~ incurred by the plaintiff by ' [196] reason of his inal>ility to nttend to the duties. of. hls busi-

ness ot• calli~II on account of his injury, fixing the· same at · · such a sun1 as would he equal to the pi•obable earnings of the · plaint.iff in said vocation, taking· into eonsideration his age, and · expet·ienc(l: his· capacity. habits, energy and perseverence. · _2. By adding thereto such an an1ount as they may deen1 · from the evidence to be a fnh· and just cmnpensation for the loss · of health and for·· the bodily suffering and mental anguish occa-: sioned by the inj1u·y to th<~ plaintiff. ·

3. By further taking· into consideration not only the datn· ages that the plaintiff 1nay have actually ·sustained up to the timeof this trial, but. also con1pensation for f~rther damages­

. that i.s, cmnpensation fot• rtll dmnages remtlting from tb~ injury, 'vhether past, present m• 1n•ospectiYe. . . ·

.. (197] l'llRtnwtions Gi-rJMl fm· l)efe·nllant.

:No. 1--Given.-Exception.

Tlu~ Cout·t instt•ucts the jury that it was the duty of the

181'

piaintiff to use reasonable care to .inform himself of· the move­ment of trains, the moven1ent of which might affect the saf~ty of the~operation of the motor car and trailer from Pulaski to Bridge 250 on the n1orning of the accident, and it was the duty of defendant's train dispatcher, 'vhen called by the plaintiff" and informed of the purpose of plaintiff's inquiry, to use rea­sonabl~ care to communif'!nte to plaintiff information as to the n1ovement of trains affecting the safety of the operation of the mot<>r ca:r on the trip frmn Pulaski to bridge 250~ And if. the jury shall believe from the evidence that the train dispatcher did, in response to plnintiff's inquiry as to the movement of east bound trains, answer, among other things, that train Second No. 90 shonld be then a l)out Pulaski, and that the plaintiff fail­ed to l}.ear ~his part of th~ dispatcher's message, and that the dis· patcher did not know anrl w·as not infor1ned by the plaintiff that plaintiff had not heard the entire message, then the jury shall fi'l).d for tht~ defendant.

[198] X o. :~-Giv·en.

1'he burden i:;; upon 1lw plaintiff in this case to prove by a prepond'erance of the evidence that the defenrln.nt':;; train dis­patcher fa.Hed~to nnswe1·, h1 response to plaintiff's inquiry, with such information ns to the pc~sition of train No. SeconcJ. 90, as wotild have enabled A. T ... Smith:- in the exercise of reasonable· care on hiH part, tn malw his motor trip with .reasonable safety.

'l'he ·court instructs the jury that if tlle jury shall find for the plaintiff in assessing the plaintiff's damages, the jury can tike into consideratlon only- the injuries and cow~equences of the _injuries, if any, sustained by the plaintiff in the accident of October 6th, 1925 .

. - Tbe foregoing insti~uetions. "B" and "F," given on. mo-[199] tion of plaintiff, were objected to by the defendant, aRd

gro:unds of objection ~tated at the time, that is: t'l the J,riving on request of plaintiff of plaintiff's instruction ''B" as hereinabove set out, ~th,e plaintiff objected on. the ground: that it present~d. an issue to the jury (contributory negligence) not rais~d ·by the pleadings ; an<l to the giving of instruction "F" ou the request of plaintiff as hereinabove set out, the defendant ob­jected on the grounds tl1<tt the issue of plaintifrs negligence is

13~--· . '·

not-presented by the· plef!dings or testimony,· and is not in- any 'vay relied on by the defendant, and that the giving of said in­struction "F" wouid tend to confuse and ntislead the jury; but th~ Court overruled said objections of the defendant to the giv- -ing of said instructions ':B" and "F," and gave to the jury all of­said instructions asked ft)r by the plaintiff and hereinabove set o~t, designated A, B, C,. D, E, F, and G, to which ruling of the C9urt the defendant- excepted.

T.este: This 17th day of October, 1927.

[zOO] -

liORACE SUTHERLAND, Judge.

OERT IFICA.'l'E NO. IV.

And the Court certifices that after ~he jury were discharged from this case, the defendant moved the Court to set aside the verdict of the jury becau!-!e the· same 'vas contrary to the evi­dence and 'vithout evidenre tv support the verdict of the jury, and to rend~r jurlgment 11pon the evidence for the defendant, notwithstanding the verdict of tl1c jury, 'vhich motion was over­ruled; ·and- the defendant P.XC<'pted.

And the Court further certifies that the defendant furthe1· moved the Court, in the event its said motion for a· judgment for defendant be denied, to r--c~t aside the verdict of the jury and grant def~ndant a new trial, upon the grounds as set out in the order· entered on the 10th day of May, 1927, as follows:

· First: llecause of er·J·ors of the Court in the admission of evidence for the plaintiff over the_ objections of the defendant, and in the e~clusion of. the evidence offered by the defendant up· on the objections of the plaintiff.

Second: Because of rn is-direction of the Court to the jury in giving instructions to thr; jury on motion of the plaintiff over the objections of the defendant.

Third: And for the refusal of the instructions offe~ed by .. the defendant.

Fourth: Upon th~ ground that the verdict is excessive and _ without eYidence to support it.

·· :All of the above motions were overruled, and the d~ [201] fendant excepted.

Teste: 'rhis 17th day of October, 1927. HORACE SUTHERLAND,

Judge.

139

State of Virginia, County of Pulaski, to-"\\it :

I, J. N. Bosang, Clerk of the Circuit Court for the County of Pulaski, and State of Virginia, do herel>y certify that the foregoing is a true transcript of the record and proceedings in a certain notice of motion for judgment, for personal inju· ries lately depending in ~mid Court between A. L. Smith, Plain­tiff, and Norfolk W esteJ·n Railway Company, dcf~ndant,- with all things touching the same as fully and 'vholly as they now ex· ist among the records of my said office, and I further certify that notice for the application ofthe foregoing transcript of record was duly excepted by John S. Draper, one of the attorneys for the plaintiff.

Given under my hand this the 30th day o{ Noven1ber, 1927.

Fee for record, $60.00. J. N. BOSAN:G, Clerk.

A Copy: Teste:

J. H. KELLY, Clerk.

II ~

·r !, [i :l

... i: I • I •

d ~- .

~ .

;·

140

INDEX

-o--

Petit.io11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Record. . . . . . . . . . . . . . . . . . ............................... 19 Motion for ,Judgment ......... ~ ..............•........... 19 Verdict ............................................•... 23 .Tudgilleri1: . . . . . . . . . . . . . . . ........................ ~ . . . . • 24 Certificate No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

PLAINTIFF'S EVIDENCE .

...... - ... >\.. L. Sn1 itlt .............. ·. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Dr. E. P. I~ramntnr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Henry A. Smith ....................................... 61 Dr. E. 'l'. Rmith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . r,r, (" . . ,,..... S.isson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 .J. C. It•vitl . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . 7 4

ll~F.E.NDAN'r'S EVIDENCE.

Dt•. C. E. l,e~rto11 ............... ·... . . . . . . . . . . . . . . . . . . . . • 77 Dr. J. 0. Da,is, Jr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Dr. A. M'. Showalter ............................. -. . . . . . . . . . 84 C. T. Kerr ......................................... 9H-11G · Dr. D. S. Divers ....................................•... 114 R. H. Stltith .......................................... 118 .T ...... S. Goldsmith . . . . . . . . . . . . . .......................... ; .. 1 ~7 0. W. Stlt1111ter ........................................•• 130 Cert:ificate II ............ : .............................. 133 Certificate III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . lil4 Instructions . . . . . . . . . . . . . .............................. 13i Certificate IV . . . . . . . . . . . . ........................ ~ ..... 138 ~lerl{'s Certificate . . . . . . . . . ..........................•.. 139

! .... "

- I

\.-