629 630 631 632 T. W. Davin, for Deft., Re-direct, Re-cross. RE-DIRECT EXAMINATION by Mr. Hast ings: I came to your office the other night and you asked me some questions. Mr. Spring: No, he denies that. A. I did not deny it. I said I was not altogether clear. Mr. Sickler and Mr. Anderson were present, but these other gentlemen you speak of weren': there. RE-CROSS EXAMINATION by Mr. Cole: I have a recollection of what I talked in Mr. Hastings' office a few nights ago. Q. Getting clearer all the while isn't it? A. Not any clearer all the while than I was at first. I didn't remember exactly the conversation. We talked about this accident, about the Booth case. Something about the rails. I don't know just exactly what it was. The rails were mentioned. I am treating this matter as it should be treated. I can't give you the exact statement about what we talked to Mr. Hastings about in his office. I know the subject. I don't think we mentioned the number of rails. I think we mentioned the size. I don't know what I said on that subject. EDWARD P. O'SHAUGHNESSY, being duly sworn on behalf of defendant, testified as follows: Direct Examination by Mr. Hastings: Live at Olean. Am railroad engineer, in employ of Pennsylvania Railroad Company. In E. P. O'Shaughnessy, for Deft., Cross. I 633 1910 I was employed by the H. S. Kerbaugh Inc. on their work between Hinsdale and Ischua. was running a dinky engine at what is known as Reservoir Cut, from Reservoir Cut north to the Dutch Hill road. I was running the dinky there I think along about November. Was there altogether 25 days running the dinky. That is about 634 20 days at Reservoir Cut. Think I began running the dinky along about the 1st of November, 1910. Run it 45 days, not at one place. About 20 days at Reservoir Cut. I hadn't run this dinky over this track before that time. I hadn't worked on this track before November, 1910. I worked on the standard gauge before that, on the construction train. I had occasion to observe this track there between bridges 49 and 50 along in September, 1910. It was pretty good dinky track so far as I had seen, or what I had seen. The rails were of the same size. There wasn't more than one weight of rails that I noticed. The joints didn't all fit up close, probably a matter of an inch there. CROSS EXAMINATION by Mr. Cole: Worked on standard gauge during the summer, think I began along in August. My work was running the engine on one of the work trains there that they had on the standard gauge, on the main line of the Pennsylvania over which their trains were run. I ran my engine and standard gauge cars attached to it. They had no dinky track on that standard gauge. My work was exclusively on the main line. This work that the Pennsylvania was doing there was, as a matter of 635 636 637 E. P. O'Shaughnessy, for Deft., Cross. fact, shifting their track or right of way some of the way there quite a distance from the track where it formerly had been. Q. Take it at the point by the Dutch Hill crossing and down through the Scott farm, how far was the new track which they were building from the 638 old track over which you were running your engine? 639 A. Why, between bridge 50 and where they had the supply house at Dutch Hill crossing it was less than a quarter of a mile over to the Pennsylvania track. A little less than a quarter of a mile from one track to the other. My work kept me on my own track. My work didn't take me over on this dinky track or on that grade. Not while I was working for the Pennsylvania Railroad. I didn't commence work on the dinky there until along about the first of November. Along in August and September my work was on the main track, which was practically a quarter of a mile from the track where this work was being done. It was none of my affair, no part of my business or duty, to pay 640 any particular attention to this dinky track or its construction. If I did observe anything it was in a purely casual way, and about a matter that didn't in any way concern me. I didn't have to walk over it to my work, or for any other purpose. CROSS EXAMINATION by Mr. Spring: This dinky track and the standard gauge came together down south of Ischua down at the Reservoir Cut. That was some 2 or 3 miles below the village of Ischua. North of Ischua they came E. P. O'Shaughnessy, for Deft., Cross. together up at that road that goes to Suicide Hollow. That is a couple of miles. Q. Between Suicide Hollow and Reservoir Cut these lines of railroad were probably at least onefourth mile apart, that is, between the dinky road and the standard gauge? 671 The Court: Mr. Hastings will doubtless 642 admit they do not come together. Mr. Hastings: Yes. By Mr. Hastings: I believe the creek was between the old and new tracks between bridge 49 and 50. Mr. Hastings: I desire to offer in evi dence Exhibit No. 2 for identification. Mr. Cole: That is the letter? Mr. Hastings: The letter. Received and marked Exhibit "2". Mr. Hastings: That was mailed in an Received and marked Exhibit "3". Mr. Hastings: This reads as follows: "Ischua, N. Y., November 4th, 1910. I hereby acknowledge the receipt of my pay from the time I met with my accident on September 25th, 1910, having received my pay during the time that I have been com pelled to be away from work on account of said accident, and for the receipt of this pay, I agree to accept it as compensation as loss from wages, and further agree to re 643 644 645 646 647 648 lease H. S. Kerbaugh Incorporated from any further liability. (Signed) Elijah W. Booth. (Witness) D. E. Van Dyke." Exhibit "2" reads as follows: "(Dated) Ischua, the 24th, 1910. Mr. Kant Dear Sir: I thought I would write you a letter, a little business letter. I want you to look after for me and go to the company's office and tell them that if they should hear that I was going to sue the company for damages, but don't believe it. There are parties that are trying to get me to sue for damages, but I don't want them, nor I won't either, because I am satisfied with the way the company is doing with me, paying as they do, and paying me my wages. I don't want any trouble with the company. I don't believe what outsiders say about it. Use your own judgment about it, and fix it up for me, will you please. I don't want to lose my job with the company here or out there, and I want you to look the matter up and let me know, or come up, and I will let you know about it. If you will please. They are going to fetch a lawyer down, and ask counsel about it, but it won't do any good. I will not sue. Side Hill, Ischua." Yours, Elijah Booth. Mr. Hastings: Mr. VanDyke, who was here, was called home on account of sickness in his family and his testimony was taken by the stenographer by agreement with Mr. Cole and Mr. Spring, and I will read that. |