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Page St. Louis Southwestern R. Co. of Texas v. State, Gulf, C. & S. F. R. Co. v. (Tex. Civ. Christian (Tex. Civ. App.)........

..1102
App.) ..::

385 St. Louis & Kansas City Land Co., Kansas State v. Hamblen (Tex. Cr. App.)... 678 City v. (Mo.)............

State, Harris v. Tex. Cr. App.)...
San Antonio & A. P. R. Co. v. Houston | State, Hayter v. (Tex. Cr. App.).......... 674
Packing Co. (Tex. Civ. App.). ......

State, Heaton v. (Tenn.)....
Sanborn, Amarillo Nat. Bank v. (Tex. Civ. State, Heidelberg v. (Tex. Cr. App.)..

...1151 App.) .....

1075 State v. Hodges (Ark.)...... Sanders, O'Barr v. (Ark.). .

State, Hunt v. (Ark.)...... Sanford v. John Finnigan Co. (Tex. Civ. State, Johnson v. (Tex. Cr. App.).........1151 App.) .....

624 State, Johuson v. (Tex. Cr. App.)....... 1164 Sansom v. Ewell (Ky.)...... 571 State, King v. (Tex. Cr. App.).........

675 Sapp, Robinson-Pettit Co. v. (Ky.). .

869 State, Knowlton v. (Tex, Cr. App.). 674 Saunders v. Flemingsburg (Ky.). .

575 State, Lamb v. (Tex. Cr. App.)....... Schapiro v. State (Tex. Cr. App.)... 683 State, Lee v. (Ark.). .....

963 Scheer, Ft. Worth & D. C. R. Co. v. (Tex. State v. Long (Mo.).. Civ. App.) ..

State v. Long (Mo.).....
Scheffel v. Śmith (Tex. Civ. App.)........1131 State, McGaughey v. (Tex. Cr. App.)....
Scherer, Fisher v. (Tex. Civ. App.)........1133 State, Martin v. (Ark.)................
Schott v. Indiana Nat. Life Ins. Co. (Ky.)..1023 State, Miller v. (Tex. Cr. App.)..........

1164 Schubert v. Voges (Tex. Civ. App.)..... 409 State, Millner v. (Tex. Cr. App.).... 899 Scott v. Daniels (Ky.)........

AROI State, North Texas Transfer & Warehouse Scott, State v. (Ark.).....

314 Co. v. (Tex. Civ. App.).... Scoville, Midland Val. R. Co. v. (Ark.). 255 State, O'Fallin v. (Tex. Cr. App.)..... 897 Scrivner v. Missouri Pac. R. Co. (Mo.).. State v. Post Tex.). ...

407 Seibold, Illinois Cent. R. Co. v. (Ky.)..... 610 State v. Post (Tex. Civ. App.).......

State v: ? Seitz v. Meriwether (Ark.)...........

State, Quinn v. (Ark.).......

791 Sharp v. Rose (Tenn.).......

State, Robison v. (Tex. Cr. App.)..... 1165 Shaw v. Board of Drainage Com’rs of D

State, Rutherford v. (Tex. Cr. App.)... 1157 viess County (Ky.)....

State, Schapiro v. (Tex. Cr. App.)...... 683 Shelton, Interstate Coal Co. v. (Ky.)...... State v. Scott (Ark.).......

314 Sherrill-King Mill & Lumber Co., Logan's State, Sorrell v. (Tex. Cr. App.)...... 299 Adm'r v. (Ky.)....

707 | State, Southern R. Co. v. (Tenn.)........1173 Sims, Russ v. (Mo.)...

State, Spencer v. (Ark.)............. 790 Smith, Ex parte (Ky.)..................

State, Spivey v. (Ark.)........

949 Smith v. Berry (Ky.)...

478

State, Strong v. (Ark.).............. Smith v. Chapman (Ky.)... 834 State, Taylor v. (Ark.) ........

341 Smith, Collier v. (Tex. Civ. App.)....

108
State, Taylor v. (Tex. Cr. App.)...

672 Smith, Scheffel v. (Tex. Civ. App.).....

State, Thetford v. (Tex. Cr. App.).. 1153 Smith, Spaulding v. (Tex. Civ. App.)...

State, Vickers y. (Tex. Cr. App.)...

669 Snedeker v. Metropolitan Life Ins. Co.

State, Walker v. (Tex. Cr. App.)... 1156

State, Whitfill v. (Tex. Cr. App.)... Sorrell v. State (Tex. Cr. App.).......

State, Whitley v. (Ark.)........ Southern Exp. Co., Commonwealth v. (Ky.)

State, Williams v. (Tex. Cr. App.)....

. . 1154 Southern Gas & Gasoline Engine Co. v.

State, Wilson v. (Ark.).................. 195 Adams & Peters (Tex. Civ. App.).....1143 State, Woods v. (Tenn.)....... .... 558 Southern Nat. Life Ins. Co., Ford v. (Ky.) 874

State ex inf. Attorney General v. Arkansas Southern Nat. Life Ins. Co., Ford's Adm'r

Lumber Co. (Mo.)..... v. (Ky.).

............. 874 State ex rel. Hopkins v. Excelsior Powder Southern R. Co., Jett & Brooks v. (Tenn.) 767

Mfg. Co. (Mo.).... Southern R. Co. v. McNabb (Tenn.)....... State ex rel. Koeln v. Title Guaranty Trust Southern R. Co. v. State (Tenn.)........

| Co. (Ms.)..... Southern Surety Co., Ross V. (Tex, Civ.

State ex rel. Sager v. Polar Wave Ice & App.) .....

Fuel Co. (Mo.).... Southwestern Portland Cement Co. v. Bus State Mut. Fire Ins. Co. v. Kellner (Tex. tillos (Tex. Civ. App.).....

(Civ. App.) .... Southwestern Telegraph & Telephone Co.

State Sav. Bank of Springfield, Mo., Delv. Andrews (Tex. Civ. App.).......

olme v. (Ark.).......

ir ':. ::...............

Stephens, Gilreath v. (Ky.)...
Sowards, Higgins v. (Ky.).....
Spaulding v. Smith (Tex. Civ. App.)....

Stephens v. Ludlow (Ky.)....
Spencer v. State (Ark.).......

790

Stevens v. Dublin (Tex. Civ. App.)... 188 Spivey v. State (Ark.)........

949 Stevens v. Galveston, H. & S. A. R. Co.
Spore, Royal Neighbors of America v. (Ky.) 984 (Tex. Civ. App.).....
Sproul, Interstate Coal Co. V. (Ky.). .... 693 | Steves & Sons, Dilworth & Green v. (Tex.
Stacy, Wilkes v. (Ark.).......

796
Civ. App.) ::::::: Nackin (Ky.)....

630 Starr, Commonwealth v. (Ky.)..... 743 | Stewart & Whitesides v

469 State, Allen v. (Tex. Cr. App.).... . 1151

Stimson, Aubrey's Adm'r v. (Ky.)....... 991 State, Baker v. (Tex. Cr. App.)... .1154 Stogsdili v. Holmes (Ark.).....

961 State, Bell v. (Tex. Cr. App.)...... 1150 Stokely v. Burke (Tenn.)......

763 State, Bitner v. (Tenn.)........... 565 Stone v. Burkhead (Ky.)..

489 State v. Bolt (Tenn.). .............

761 Stone v. Kansas City & W. B. R. Co. (Mo.) State v. Brewer (Ark.)..... 804 Strader v. Strader (Ky.). ......

857 State, Brown v. (Tex. Cr. App.)...... 437 | Strickland v. Baugh (Tex. Civ. APP.).....

181 State, Brown v. (Tex. Cr. App.)....

Stringer, Justice v. (Ky.)........

836 State, Cannon v. (Ark.).... 812 Strong v. State (Ark.)......

. 1189 State, Catlett v. (Tex. Cr. App.)..

673 Strother v. Kansas City Mill, Co. (M 0.).. 43 State v. Chadwell (Tenn.).....

1170 Stroud v. Commonwealth (Ky.)....... ...1021 State, Clark v. (Tex. Cr. App.)... 895 Stroud v. .Conine (Ark.)...

959 State, Cox v. (Ark.).......

789 Studebaker Corp. of America, Johnson v. State v. Craighead County (Ark.).......

... 992 State, Cyrus v. (Tex. Cr. App.).....

679 Sugg 'v. George B. Hendricks & Son (Tex. State, Elza v. (Tex. Civ. App.).... 633 Civ. App.).

394 State, Ethridge v (Tex. Cr. App.). .1152 Sullenger's "Adm'r, Illinois Cent. R. Co. v. State, Fondren v. (Tex. Cr. App.). 411

(Ky.) ...:

............. 858 State v. Frank (Ark.).....

333 Supreme Tribe of Ben Hur V. Cosgrove State, Gentry v. (Tex. Cr. App.)......... 668! (Ky.) .....

999

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.......1156

Page

Page Swann's Adm's, Cincinnati, N. O. & T. P. Walker v. State (Tex. Cr. App.). R. Co. v. (Ky.).. 886 Ward v. Kirchdorfer (Ky.).

507 Swilley v. Phillips (Tex. Civ. App.). .1117 Ward, Missouri, K. & T. R. Co. v. (Tex. Swinney, Rutledge v. (Mo.)... 17 Civ. App.)

.1035 Washington, St. Louis, I. M. & S. R. Co. v. (Ark.)

770 Talley, Montgomery County v. (Tex. Civ.

Wasioto & B. M. R. Co. v. Blanton (Ky.).. 589 App.) .1141 Weber v. Weber (Ark.).

318 Tandy y. Hopkinsville (Ky.).

703 Weir v. W. T. Carter & Bro. (Tex. Civ. Taylor, Harrell v. (Ark.).

779
App.)

1.1113 Taylor v. State (Ark.).

341 Wells Fargo & Co., Boesel v. (Mo.). 110 Taylor v. State (Tex. Cr. App.).

672 Wells Fargo & Co. v. Guilheim (Tex. Civ. T.C. Caumissar & Sons, Western Union

App.)

.1053 Tel. Co. v. (Ky.)...

.1026

West, Kentucky & T. R. Co. V. (Ky.). 728 Tedford v. Chick (Ark.).

769 Western Tie & Timber Co. v. Campbell Teetor, De Lashmutt_v. (Mo.).

34
(Ark.)

253 Tennessee Eastern Power Co., Noell V. Western Union Tel. Co. v. Blake (Ark.)... 240 (Tenn.)

.1169 Western Union Tel. Co. y. Chamberlain Texas Bldg. Co. v. Reed (Tex. Civ. App.).. 211 (Tex. Civ. App.)....

370 Texas Midland R. R. v. Hargrove (Tex,

Western Union Tel. Co. v. Compton (Ark.) 946 Civ. App.)

925 Western Union Tel. Co. 7. Franklin (Ark.) 234 Texas & P. R. Co. v. Beaird (Tex. Civ.

Western Union Tel. Co. v. Louisville (Ky.) 994 app.)

. 1050 Western Union Tel. Co. v. T. C. Caumissar Texas & P. R. Co. v. Hubbard (Tex. Civ. & Sons (Ky.).

.1026 App.)

.1058

Wheeler, Cincinnati, N. 0. & T. P. R. Co. Texas & P. R. Co. v. Moody (Tex. Civ.

v. (Ky.)

690 App.) .1057 Whitfili v. State (Tex. Cr. App.).

681 Texas & P. R. Co. v. Tomlinson (Tex. Civ.

Whitley v. State (Ark.).

952 App.)

217

Wickham, Mellville v. (Tex. Civ. App.). 1123 Thetford v. State (Tex. Cr. App.) .1153

55 Thomas, Callahan Const. Co. v. (Ky.).... 828 Wilkes v. Stacy (Ark.)..

Wilcox v. Phillips (Mo.).

796 Thomas v. Marshall (Ky.). 615 | Willey v. Howell (Ky.).

519 Thompson Lumber Co., York v. (Tex. Civ.

Williams, Osvald v. (Tex. Civ. App.). 185 App.)

187
Williams v. State (Tex. Cr. App.).

.1154 Title Guaranty Trust Co., State ex rel.

Williams-Echols Dry Goods Co., Person v. Koeln v. (Mo.)..

28
(Ark.)

223 Tomlinson, Texas & P. R. Co. v. (Tex. Civ.

Williamson Bank & Trust Co. v. Miles App.)

217
(Ark.)

368 Township of Lamar v. Lamar (Mo.).

12

Williamson's Adm'r v. Norfolk & W. R. Co. Tribble, Penick v. (Ky.).

607
(Ky.)

613 Trinity & B. V. R. Co. v. Geary (Tex. Civ.

Williford v. Richards (Tex. Civ. App.). .1139 App.) 201 Wilson v. State (Ark.)..

795 Trolls. Laclede Gaslight Co. (Mo. App.) 337 Wilson & Co. y. Illinois Cent. R. Co. Truesdell v. Chesapeake & O. R. Co. (Ky.) 471

(Tenn.)

311 Turner v. Huggins (Tenn.).

754

Winston v. Louisville & N. R. Co. (Ky.)... 597 Turner v. Johnson's Ex'rs (Ky.)..

988
Witt v. Nelson (Tex. Civ. App.).

381 Tycrete-Concrete Products Co., Yenawine v. (Ky.)

W. M. Lundy & Son, Clinchfield Fuel 594 Co. v. (Tenn.)

563 Tye, Bain v. (Ky.).

843
Wood v. Nall (Ky.).

569

Woods v. Eberling (Tex. Civ. App.). 932 Union Electric Light & Power Co., Hill v.

Woods v. State (Tenn.).

558 (Mo.)

345 W. T. Carter & Bro., Weir v. (Tex. Civ. Union Pac. R. Co., Ostertag v. (Mo.).

1
App.)

.1113 United Zinc & Chemical Co., Collinsworth v. (Mo.)

50 Yates v. Caswell (Tex. Civ. App.). .. .. .1104

Yenawine v. Tycrete-Concrete Products Co. (Ky.)

594 Valentine, Begley v. (Ky.)...

.1026 York v. J. M. Thompson Lumber Co. (Tex. Van Meter v. Van Meter (Ky.). 592 Civ. App.).

187 Vannerson, McSpadden v. (Tex. Civ. App.) 1079 York Lumber Co. v. Dexter (Ark.). 315 Vaughan, 'International Life Ins. Co. v.

Young, Fitzpatrick v. (Ky.)..

530 (Ark.)

330 Young, German Nat. Bank v. (Ark.). .1178 Vickers v. State (Tex. Cr. App.).

669 Young, Main Jellico Mountain Coal Co. v. Voges, Schubert v. (Tex. Civ. App.) ...... 409 (Ky.)

841

REHEARINGS DENIED

[Cases in which rehearings have been denied, without the rendition of a written opinion, sinco the publication of the original opinions in previous volumes of this Reporter.]

KENTUCKY.

Chesapeake & 0. R. Co. v. Dawson's Adm'r, Evans Chemical Works v. Ball, 167 S. W. 390. 167 S. W. 125.

Guest v. Foster, 166 S. W. 620. Chesapeake & 0. R. Co. v. De Atley, 167 S. W. Hostetter v. Green, 167 S. W. 919. 933.

Keyser v. Damron, 167 S. W. 381. Chesapeake & 0. R. Co. v. Lauhorn, 167 S. W. Kincaid v. Bull, 167 S. W. 903. 132.

Rounds v. Cloverport Foundry & Machine Co., Chesapeake & 0. R. Co. of Kentucky v. 167 S. W. 384.* Vaughan's Adm'x, 167 S. W. 141.

Snowden v. Flanery, 167 S. W. 893. Cincinnati, N. 0. & T. P. R. Co. v. Blanken- Volz v. Scully, 166 S. W. 1015. ship, 163 S. W. 1123.

Weidekamp's Adm'x v. Louisville & N. R. Co., City of Louisville v. Stoll, 166 S. W. 811.

167 S. W. 882. Commonwealth v. Lee Line Co., 167 S. W. 409. Wilson v. Town of Whitley, 166 S. W. 775.

See End of Index for Tables of Southwestern Cases in State Reports 169 S.W.

(xxxii)

THE

SOUTHWESTERN REPORTER

VOLUME 169

16. DAMAGES (8 132*)–PERSONAL INJURIESOSTERTAG v. UNION PAC, R. CO.

AMOUNT. (No. 16725.)

An award of $15,000 damages in favor of a

railroad switchman 34 years of age, in good (Supreme Court of Missouri, Division No. 2. health, and earning $100 a month, who suffered July 14, 1914. Rehearing Denied

| injury requiring the amputation of one leg nearJuly 25, 1914.)

ly up to the hip and sustained other slight in1. MASTER AND SERVANT (88 286, 289*)-INJU-juries, is excessive by $5,000. BIES TO SERVANT-ACTIONS-JURY QUESTION. [Ed. Note.--For other cases, see Damages,

In an action by a member of a switching Cent. Dig. 88 372–385, 396; Dec. Dig. & 132.*) crew run down by a switch engine, behind which

Appeal from Circuit Court, Jackson Counhe stepped while it was standing on a switch track to allow a train to pass, the questions of ty; O. A. Lucas, Judge. the negligence of defendant and contributory Action by Louis H. Ostertag against the negligence of the switchman, held, under the Union Pacific Railroad Company. From a evidence, for the jury. [Ed. Note.-For other cases, see Master and

judgment for plaintiff, defendant appeals. Servant, Cent. Dig. $g 1001, 1006, 1008, 1010-1 Affirmed on condition that plaintiff enter re1015, 1017-1033, 1036-1042, 1044, 1046-1050, mittitur; otherwise reversed and remanded. 1089, 1090, 1092–1132; Dec. Dig. 88 286, 289.*]

This is a suit for damages for personal 2. APPEAL AND ERBOR ($ 1064*)_REVIEWHARMLESS ERROR.

injuries. The plaintiff recovered a verdict In an action for injuries to a switchman and judgment for $15,000. He was 34 years run down by a switch engine behind which he old at the time of the injury, and in good attempted to pass, the erroneous admission of health Ho had been in the employ of de. evidence of a rule of the railroad company, requiring two short whistles in answer to any

fendant as a switchman about 4 years, and signal not otherwise provided for, is harmless, had been in railroad work longer. The inwhere the instructions did not submit to the jury occurred in defendant's freightyards jury any fact involving that rule.

in Kansas City, June 7, 1910, about 6:40 p. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4219, 4221-4224; Dec.

m. Plaintiff was one of the crew of engine Dig. Ś 1064.*]

No. 1241. The petition alleges the negligence 3. TRIAL ($ 121*)ARGUMENT OF COUNSEL.

as follows: In a personal injury action by a railroad "That while such switch engine was stationary employé, who signed a statement prepared by a and plaintiff was engaged in the act of passing claim agent immediately upon his return to around the end of the same, and in a position consciousness after the amputation of his leg, of peril from the movement of said engine back. remarks by his counsel comparing the claim ward, the said switch engine, in consequence agent to a ghoul are not improper.

of and through the negligence and mismanage [Ed. Note.-For other cases, see Trial, Cent. ment of the agents, engineers, and other emDig. $$ 294–298, 300; Dec. Dig. $ 121.*] ployés of the defendant, including the foreman 4. TRIAL (8 133*)-ARGUMENT OF COUNSEL

of said switching crew, was suddenly, swiftly, IMPROPRIETY.

and violently moved backward, toward, and That the court denied the request of de

against the plaintiff ; and said agents, engineers, fendant's counsel to discharge the jury for im

and other employés, including the foreman of proper argument by plaintiff's counsel does not

said switching crew, negligently failed to give warrant reversal, where objections thereto were

| any warning to the plaintiff, as due ca: 2 resustained and on one case the jury were in

quired them to do, of such movement of such structed to disregard the argument; it not ap

engine." pearing that defendant's counsel requested the It alleges the loss of his left leg about court to reprimand the counsel for plaintiff. halfway between the knee and hip, and that

[Ed. Note.-For_other cases, see Trial, Cent. he was earning $100 a month, and prays for Dig. $ 316; Dec. Dig. § 133.*)

$25,000 damages. The answer contained a 5. APPEAL AND ERROR ( 1004 )--REVIEW- general denial, a plea of contributory negEXCESSIVENESS OF DAMAGE.

Improper argument of counsel for plaintiff ! ligence, and an allegation that under the law in a personal injury action will be considered of Kansas the plaintiff assumed the risk. in determining the question of excessive dam- i The reply is a general denial. ages. (Ed. Note. For other cases, see Appeal and

Tracks 4 and 5 in the defendant's yards, Error, Cent. Dig. 88 3944-3947; Dec. Dig. running parallel from east to west, are con1004.*]

nected at the west by a switch, from which

*For other cases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

169 S.W.-1

the track continues west. On the south side , up there they pulled up too far, and they had of the track, and 200 or 300 feet west of that to back down again to get in the clear. Q.

That is 1241? A. 1241. switch was the “shanty" or office, where the the switch, and the conductor gave us a high

Then they gave us defendant's employés went to get and give ball, and we whistled off and started up. Just orders and reports. Freight train 157, con as we started somebody gave a sign for 1241 taining about 50 cars, was on track 4. The to back up towards the west and beat us to the

switch. Then is when Ostertag got hit. Q. road engine was coupled to the west end Ilow far did you say that 1241 moved when it of that train, and headed west. In front of headed east to clear 4? A. The length of the the road cngine was coupled the helper en engine. Q. You say you got the switch. Did gine reversed, i. e., with its head to the east. your train whistle for the switch to get it?

A. No. They gave us the switch, and we whistled It was there for the purpose of helping the off. Q. Where was 1241 at the time you start: train start westward on an upgrade. South ed? A. They were about even with the switch of that train was engine 1241 on track 5. It engine of 57. Q. That is, with your engine ? was coupled to its tank or tender, but not to started' before 1241 started west? A. Well, I

A. Yes, sir. Q. How long was it after you any cars. The plaintiff was in the cab of could not say. Q. As your engine stood there his engine at the time it arrived near the alongside of 1241, how far was your tank, the switch. The foreman of that engine, Mr. end of your tank, from the clearing point beMoore, had come with the engine from the right about the length of the engine. Probably

tween tracks 4 and 5? A. Well, if I remember east, riding on the footboard on the rear end a few feet further. Q. How far would you say of the tank, which was in advance as the you moved with the helper engine from the engine backed west. On reaching that spot, time you started to the west until you stopped? the foreman left the engine and went to the not that far. All I remember is we got started,

A. 10 or 12 feet, something like that, maybe shanty to report to the yardmaster, Shull, whistled off and got started.” and to receive additional orders if there were Plaintiff took the deposition of W. H. Wilany. It was quitting time for that engine dermood, engineer of engine 1241, and the deand crew, and, in the absence of further fendant read it in evidence. He testified: orders, the engine was to be taken westward "Q. Mr. Wildermood, suppose you tell us in beyond the shanty to the roundhouse, and the your own way what occurred there in the opcrew were to disperse to their homes. As

eration of that engine from the time you first

backed west toward the switch shanty the Moore reached the shanty, he met and passed evening Ostertag was hurt. A. Well, we backed Detwiler, conductor of the freight, who was up on what we call No. 5 and engine 1151, going towards his train. About that time, night engine, was switching on the hill, and 157 “whistled off," i. e., signaled that it was posed it would clear 4. Well, night engine

we couldn't get out, so I stopped where I supready to go. Engine 1241 was too near the 1151 shoved in the clear. Q. That was onto switch to permit the freight to pass safely. track 3? A. That was on track 4. We were It headed east so that the freight could pass, on track 5. No. 157, that is a train of local

merchandise, going west, whistled off. Fireman and stopped with the west end of its tank one says to me,' he says, “Go ahead a little in the or two car lengths east of the clearing point clear.' I says, 'I am in the clear,' and he says, of tracks 4 and 5. The west end of the help Well, you don't clear good,' and Lou Ostertag er engine in front of the freight train was dropped off the engine and says, 'Yes, give them

a good clear.' So I let engine 1241 slack ahead about the same distance east of the clearing in the clear about 30 or 40 feet.

I will say point. Detwiler, the freight conductor, sig- that much, but I don't know whether that far, naled his train to "come ahead," and it start and maybe a little farther. After I stopped ed. About that time the plaintiff, having The fireman says, Moore says back up, and I

the fireman says, 'Back up.' I says, 'What?' left the cab of his engine about the time it looked over the tank and seen Moore, the forelast stopped, passed west between tracks 4 man, give the signal to back up, and George

I started and 5 on his way to the shanty, and Moore, Tighe lining the switch up for 4. the foreman of 1241, with the permission of lengths, maybe a little more, and the fireman

back, and I went back probably two engine Shull, the night yardmaster, signaled his hollered, and he says, “Stop, we have run over engine to "back up,” which meant to come Lou Ostertag,' and I stopped as quick as I on west over the switch ahead of 157. The could. Q. Where was the west end of this train

157, the tank of the helper engine on that train, engine started quickly, and the rear end of with reference to the clearing point when you the tank, which was for the time in front, stopped before you headed east to clear? A. struck plaintiff within 5 or 10 feet after Well, I don't know. I didn't pay no attention. starting. The plaintiff had stepped on track the clear was it that the fireman told you to

Q. How quick after you had headed down in 5 on his way to the shanty.

back up? A. Well, I don't know as I any more Melvin H. Milam, fireman on the "helper” than stopped till the fireman says, 'Back up,' engine, witness for plaintiff, testified as fol- not much more anyway. Q. What made you

say, "What?' in that surprised sort of way to lows:

the fireman? A. Well, because the fireman told "Q. Suppose you tell us in your own way what me to slack ahead in the clear. Fifty-seven happened there that night with reference to the whistled off, and I supposed they was going to switches and the engines on 157 and this en- let 57 go before us. Did'nt think of the way it gine 1241. A. Well, 157 was made up on track was done. Q. Was that the way it had ordi4. 1211 had made a Frisco transfer and narily been done? A. Yes, sir. Q. How fast did backed out the stock track and onto 5, and you get going before you had run over Ostertag? 'come up about even with the switch engine on A. Well, I don't know. I could not say. Q. the head end of 57. They stood there quite a Give your best judgment? A. That would be a little bit (I don't know how long) and the con- hard matter to do. Q. Can't you give us some ductor-we got the switch anyway, and the con- idea ? A. No, sir; don't believe I could. Q. ductor gave us a highball. When they pulled | Did you know that-I believe you said you did

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