365 C. Pettingill, for Pltf., Re-direct. creek. I wouldn't judge the track through the Scott farm was over 40 rods at the outside. I don't pretend or intend to specify any particular place on the Scott farm that I saw them off. It is within the 40 rods. Saying the Scott farm 366 might mean any place within the 40 rods. 367 368 JAMES CLAPP, being duly sworn on behalf of plaintiff, testified as follows: Direct Examination by Mr. Spring: Live in town of Franklinville. Do farming and teaming. Have been engaged in that work of a farmer the principal part of my life. In 1910 I worked for the Kerbaugh Company with a team on this work that has been spoken of here. I can't tell you the date I commenced, but it was the first day's work was done, when the job opened up. Worked about a month, up until somewheres around the 15th or 18th of September. I learned of the injury to Mr. Booth. Think I quit just about a week before that time. I worked on this job about three miles and a half below Ischua until about a mile from Franklinville village, with a team all the while. Was over this work J. Clapp, for Pltf., Direct. 369 frequently. Commenced work at Ischua village. Boarded at home. Came down every morning, drove my team down. That is about 3 miles from the work. Got on the job some days at 7 o'clock in the morning, some days at 8, worked from 8 to 10 hours. I didn't learn where Booth was injured. I know generally, down on the Scott farm. 370 I have learned since that time where he was hurt. The location generally has been pointed out to me. I observed these dinky engines. Noticed about the running board. I noticed employes of the Kerbaugh Company riding on this running board during the time I worked there. Q. To what extent did you observe their riding on the running board? A. That would be a hard question for I wasn't always present on that work. I have seen them standing there when the engine was moving, more or less frequently. Some days maybe every other train. Maybe the next day you would not notice any. I think more than one at a time. That continued whenever I was there up to the 18th or 19th of September at the time I went away. I saw these employes riding on this running board when Mr. Anderson, the boss of the whole work, who had it in charge, was there. I wouldn't swear positive that was more than once, but he couldn't help but know they were there. He was right along on the works where he could see it. They were riding on there when he was right on the work and in plain sight of the running board, at different times during the season before the injury to the plaintiff. Gust Johnson couldn't help but notice their riding 371 372 373 374 375 376 J. Clapp, for Pltf., Direct. there. I couldn't say positive that I saw him there every day, substantially every day. Whitey Kantz couldn't help but have been there when they were riding on it, and in plain sight of him. I saw him riding on it. I saw him riding on it more than once. I think it would average about three times a week I saw him riding on this running board. I don't know as I saw this man Anderson, another boss of the carpenters, riding there. I am not much acquainted with him. I couldn't distinguish him from the others. That method of riding by these men continued all summer and up to the time I left there after they got the cars to running. I know the location down below Pettingill's on the Scott farm. I was over that line frequently along in September and the latter part of August. Q. You may describe the condition of the track there and the roadbed at about the place where you understand that Booth was injured? Mr. Hastings: I object to that unless it is at the place where Booth was injured. The Court: It will be confined to that; yes. Mr. Cole: In that locality. The Court: Yes. Mr. Hastings: Exception. I object to that. A. In that place the track would be a good deal higher than the highway and I couldn't specify how the rails were at that point. I didn't walk over the track any. The track is 8 or 10 feet higher than the ground, and I J. Clapp, for Pltf., Cross. didn't know the condition of the track. I saw cars off the track at that point at different times. Some days when the track was in worse shape why every other train there would be a car or two off. Maybe other days they would go along pretty smooth. 377 Q. Take it along in September before you 378 quit there how often would you see cars get off the track at that place? A. Put it three trains a day. To get them on, they most generally, if they didn't dump themselves, they would dump them, then they had kind of a jack, and they would raise them and swing them around with the bars. I don't know how long it would take to put them on, three to ten minutes, perhaps. That continued up to the time I left. I went away somewheres between the 15th and 20th of September. I couldn't tell the date exactly. 379 CROSS EXAMINATION by Mr. Hastings: I couldn't say positively how many times I was down across the Scott farm in September. There was one week somewheres along the last 380 of August or the first of September there were several days I made several trips down through there. I was down there after that, I couldn't tell you the date, but it was in that vicinity I made several trips. I don't remember as I was there after the 10th of September. I might have been. I don't know what caused these cars to be derailed. I didn't see them jump the track myself. Whenever I saw them they were already off the track. They were dump cars used 381 J. Clapp, for Pltf., Re-direct. to haul dirt out there. I never rode on the engine myself, or on any of the cars. I don't know just the business of the men I saw riding on the cars, don't know what part of the work they had to do, don't know whether they were part of 382 the train crew or the carpenter gang or what they were. RE-DIRECT EXAMINATION by Mr. Spring: I think the dump cars are the same size substantially as the flat cars, a little higher, but are about the same length and about the same size and the same number of wheels. 383 IRVING SEARLS, being duly sworn on behalf of plaintiff, testified as follows: Direct Examination by Mr. Spring: Live at Franklinville. Am farmer. In 1910 384 I was down occasionally on this work being done by the Kerbaugh Company. I knew the superintendent of this railroad, Mr. Anderson, the man who had charge of the work, and did in 1910. I was there the 17th of June. Saw Anderson that day. He was at the office, at Ischua. I also saw him over to the Dutch Hill crossing. We drove over together. I had a talk with him. He wanted to buy a horse and I sold him a horse that day, and we drove over there. He wanted to see if the horse was afraid, and I asked him |