Full opinion text
KEY, Associate Justice. This is a statutory action by appellees to recover from appellant damages for the death of their son, George F. Johnson; and from a verdict and judgment in their favor the defendant has appealed. We omit the testimony disclosing the plaintiffs’ relationship to the deceased and bearing on the amount of damages they sustained; but deem it proper to set out in full all the evidence bearing on the question of negligence, which is as follows: Chas. P. Scrivener, for the plaintiffs: “I live in Austin, and have lived there about twenty years. I am a graduate of King’s College, London, a school of engineering. I have knowledge of topographical surveys, railway surveying, and construction of railroads, including main tracks, side tracks, etc. After the accident complained of and the removal of the switch and switch track, I visited the scene of the accident for the purpose of locating the switch and switch track. I think I went there in February, 1898, in company with Captain Walter Sneed, who is now in the United States army, and who is also a civil engineer by profession. We went there for the same purpose. The switch was not there at that time, but the main track was. We could see from the evidences on the ground where the switch and switch track had been. In connection with Captain Sneed, I made a survey of the main track and switch at that place and executed a plat of it. This is the plat I made. It is correct. It shows the switch and the main track. The switch and main track are in a little stone cut. The track runs on a down grade from the switch to the bridge, the railroad bridge that crosses the Colorado River. There is another little bridge about a third of the way down the switch on the main line. The grade at that point is about 1.35. By that I mean one foot and three inches, or a foot and a quarter in one hundred feet. I do not know the grade south of the switch. This switch I should judge to be about a mile, or a mile and a half back from the bridge south of the Colorado River. We drove out to the switch. We located the switch by the tie marks that still remained in the soil, but I knew of my own knowledge that the switch had been there. I was familiar with it when it existed. [Here the witness explained to the jury his sketch, showing the position of the main track, the spur or the switch track, the switch, and the different objects on the sketch.] The switch at its north end did not connect with the main track. The switch, switch stand, and switch track were all gone at the time the sketch was made. The length of the switch track was 860 feet. The distance from the connection between the main track and switch track at the switch to the small trestle or culvert shown on the map is 630 feet. That trestle or culvert was put there to drain a little ditch. There is a curve near the point where the switch was located, hut I have not the deghee of the curve. I expect I put it down in my hook, but haven’t it with me. The city of Austin would be north of the switch and south of the switch would be toward San Antonio. I presume that the distance between the main track and switch track, measuring from center to center, would be about sixteen to eighteen feet. The location of a switch on a railroad always increases the percentage of risk of accident. I did not consider that switch as located there on the ground to be located as a permanent switch at all, as part of the road,—as a permanent working switch is what I mean. It was evidently located there from the surroundings, as merely a working switch for the purpose of taking out rock for ballast or something of that kind. ISTo engineer would locate a permanent switch on a curve and a down grade like that.” [In answer to the following questions, “Well, in your opinion, now, as an expert constructor of railroads, would the location of this switch at this point leave the road reasonably safe for the operation of trains over it or not ?” the witness answered, “It would certainly make it dangerous.”] Cross-examination: “If the switch in question was constructed in the manner in which railroad switches are properly constructed, it would certainly be reasonably safe for the passage of trains; what I mean is, it is a switch that would need extra watching. If that switch were placed as reasonably well constructed switches are placed, trains cpuld certainly be safely operated over it. I do not mean to say that it was dangerous per se, absolutely, to operate trains over that switch, unless there was something the matter with the switch. I think perhaps my sketch is not exactly correct as, to the location of the switch and switch stand. I think there is a difference between my sketch and the sketch of the railroad engineer. I think I have located on my sketch the switch and switch stand a few feet nearer the curve than the location indicated on the map made by the railroad engineer. I think perhaps the difference would be about fifteen feet. The railroad map is undoubtedly correct, as is also my map. The difference in the maps is that I make the switch track a little longer. I locate the switch stand further south.” C. S. Morgan, for the plaintiffs: “I reside in Austin, and have resided here about twenty-three years. I was born and raised here. I was in the employ of the defendant company as a switchman and night yardmaster for about seven years, leaving the service on December 11, 1896. I served as a brakeman on that road about three months. I never knew a brakeman to be prevented from riding on an engine at any time. So far as I know, there is never any objection offered to a brakeman’s riding on an engine. I was acquainted with Fred Johnson before he went to railroading. I have not been to the scene of the wreck since the accident. I was familiar with the switch where the wreck occurred, and knew the condition of the track and of the switch. I have been familiar with it about seven years. During all of that time I was familiar with this switch, and passed over it everyday when I worked and knew the condition of the railroad and switch at that point. The switch was held in position like any other switch would be; it was held with a rod, and they use a spike there when they were not using the switch; spiked the rail. The spike was driven in the tie side of the rail. It was a split rail between the two main rails, and when it was turned to the opposite rail it turned a train into the main track. When we used the switch track we pulled the spike out. The hole became so enlarged we did not have to pull the spike out; we could lift it out with the fingers. The rod was supposed to hold the rail in position, but the spike was driven in to keep the rail from being moved. If a man should come along and move the loose spike out with his fingers, he could take a bar and prize the rail out far enough and chock it so that a flangeable wheel could go in it without disturbing the lock. There was a spring on the rod. The spike had nothing to do with holding the rails to the track, except that it held the split rail in case anyone wanted to throw it with a bar. If you were to go there and pull the spike out and put a prize in there, you could prize the rails apart, and it would just leave an open switch. Unless it was blocked clear over to the other track, it would derail the train. It would throw it off into the side track. That » could be done without breaking the lock. The (spike) was put there to keep it from being thrown by anybody outside of the railroad men, unless they broke the lock. The main track is in good condition. The switch track is on the side of the hill, and it was turned in down to that bottom there and ran into the solid rock bluff. The track was not on a line. It was on a curve. The surface of the track was on a curve. I could not say the track at this point was level, as it was on a hill. The ties of the switch track at the little bridge were imbedded in the ground. The switch was used for getting rock out of the quarry." Cross-examination: “I was discharged from the service of the company; I suppose they discharged me because they wanted to. I worked about three months as a brakeman. I am not thoroughly familiar with the duties of a brakeman. The rear brakeman on a freight train stays in the caboose. The position of the head brakeman is on the head end of the train. They do not have swing bralcemen on the defendant’s road. The position of a swing brakeman is in the middle of the train. If the train is moving and the swing brakeman wants to go back and rest, or anything of that sort, his position would be in the caboose. I do not know what was Fred Johnson’s position on the train at the time of the accident. I do not know that he was the swing brakeman. If he was the swing brakeman, I suppose his position was in the middle of the train. If he was not there, I suppose his position would be in the caboose or anywhere in the train. I do not know that the rear brakeman and the swing brakeman have no business on the engine. This cut shown me [meaning the cut offered in evidence] is a correct representation of a switch like the one at the scene of the wreck. The spring and the connecting rod are used for the purpose of holding the rails to the track or for throwing the switch from one rail to the other. When they were not using the switch, as an extra precaution they put a spike down so as to hold the switch rail up against the main rail; the purpose of that was to prevent anybody from tampering with the switch. If the switch were in good order, the connecting rod, unless tampered with, would be sufficient to hold the rails in place. I had not been at the place where the accident occurred for some time prior to the wreck, and therefore did not know the condition of the switch on the day of the accident, nor do I know whether additional spikes had been put down or not.” J. H. Toalson, for the plaintiffs: “I reside in South Austin, and have lived in this community about four years. I was familiar with the switch where the accident complained of happened. I have been there while they were getting rock out of the quarry at that place. I have been familiar with the railroad track at that point since I have been living over there. I was along the track every few days at the time Mr. Johnson was killed. I was at the scene of the wreck within an hour after the accident. At that time there were five or six ears off the track. I could not tell how many cars remained on the track; there may have been ten or fifteen. Three or four cars were turned over. I saw the body of the deceased, Fred Johnson, lying under one of the cars. The engine was forty or fifty yards north of the trestle. The engine had not turned over, but just plowed in the ground; the tender had turned on its side. I could see where the wheels had left the track and run along in the middle. Some of the derailed cars fell on one side and some on the other. Along here at the switch and near where the rails split on down to where the engine was, the track was torn up. It was pretty badly torn up. The rails were twisted and displaced and the ties were knocked around. I was familiar with the switch track at that point. Before the accident, that track was rough. There was not much bed for the switch; of course there had to be some bed for it to lie on; the rails were spiked on what were there, but up and down it was rough. The ties in the switch track were on top of the ground. There was no ballasting on the switch track. I looked at the switch after the wreck. The chain on the lock was broken, but the lock to the best of my recollection was not broken. The office of the chain was to keep the lock from being taken off. In case the lock had been unlocked and broken loose, the chain would have held it there. The chain performed no service in the way of holding the rails together. At the bottom of this business that held the lock, the piece that ran straight up and down was disconnected. There were not many persons there when I got there. I do not know how many had been there before I got there. I saw the engineer, fireman and conductor. I don’t believe I noticed any brakemen. The track hands and section hands came afterwards. I was there about half an hour or an hour and then went away.” Cross-examination: “I arrived at the place where the wreck occurred about half an hour afterwards. I was at my house and heard the danger signal and the sound of the wreck and went over there. It is about a quarter of a mile from my house to the place where the accident happened. Mr. Best and I walked over there together as soon as we heard the noise. We found the track torn up and rails displaced about twenty feet north of the switch. I do not think any of the cars struck the switch stand; the stand did not show it and none of the cars were against it. I saw some rocks packed in between the point of the switch and the main rail. The rocks held the rails apart; the rails could not be closed with the rocks packed in there. The switch target was set for the main track when I saw it. The whistle post must have been about thirty or forty feet from the switch stand. The whistle post was bent over and I saw some tracks around there and saw some mud on the post. It looked like an effort had been made to pull it up. It was a damp, drizzly day. I remember going to the office of Mr. Fisher, the attorney for the defendant, last March, and making a statement of what I know of this case. This statement handed me is the statement I made at that time. At that time, I stated, ‘on the day of the wreck at the rock quarry switch, in which Geo. F. Johnson was killed, I was at the scene of the wreck almost immediately after it happened. I was at my home near the railroad track and about a quarter of a mile distant when I heard the danger signal.’ By the word ‘immediately’ I mean the time it would take me to go over there. When I got to the wreck the switch was adjusted so as to derail a train. The engine and cars left the track something like three or four feet after they struck the point of the switch. The rocks held the point of the switch away from the rail, and it was wide open when I got there. If a train approached it in that way it would be derailed. There was a spring there to drive the rail back, but it was disconnected.” Bedirect examination: “It was half an hour, or not more than an hour, after the wreck before I got there. When I reached the wreck I met Mr. Boy’s people coming away. The rocks that I saw between the point of the switch and the main rail were just such rocks as were in the quarry. They had been mashed up I suppose. They were a kind of adobe rock that they get out of the bank. I suppose some of the rocks I saw there were about the size of my fist and some were smaller. Some of them were stuck up probably flush with the top of the rail and some were not so high. There was no sign of the flanges of the wheel's passing over the rocks. ’ I just noticed the rocks between the rails. If a car had passed over where the rocks were, I suppose the flanges would have dropped in where the rocks were; to the best of my knowledge, that would have been the necessary consequence. I saw some of the rocks crushed. At the point where the rails came together, I did not see any rocks driven in the ground like a heavy object had passed over them, though farther on I did. I do not suppose those soft rocks would resist much force. I had been there probably half an hour before Sheriff White and Justice Johnson came.” J. A. Warren, for the plaintiffs: “I live in Burnet, Texas. I came into Austin from Elgin, Bastrop County, on the day of the wreck at the rock quarry switch. At the time of the accident Mr. Best and I were about three or four hundred yards away, right near Mr. Roy’s place. We were looking for a pony when we heard the wreck, and we turned and went to where the wreck occurred. We heard the engine whistle when we were about three or four hundred yards away. The whistle and the rumbling of the wreck occurred simultaneously. We stopped and listened, and Mr. Best remarked That must be a wreck,’ and we went over to it. It could not have been more than fifteen or twenty minutes after the wreck until we arrived on the scene. The track was torn up. I did not see any rocks jammed in between the switch and the main track. As far as looking around carefully is concerned, we took in the situation, but did not see anything of the kind. I could not say whether the lock on the switch was broken or not.” Q. “Are you certain that there were no rocks jammed in between the point of the switch where it went into the main track?” ' A. “Not that I could see; you sqe the track was torn up. The engine was this side (north) of the switch. The engine and tender had passed the switch board, I think. Two or three cars were pushed off to the east and one had careened to the left. The wreck was all at the switch. The ground was torn up there so I do not think you could recognize anything. When we got there, there were two men there. I did not know their names, but they were trainmen. I saw the body of the man there. His body was back at the car that careened to the west side. I remained there but a few minutes. We went back to the wreck a second time. When we left there the first time, we left the two railroad men. There was nobody else there at that time.” Cross-examination: “I did not see Sheriff White the first time I was there. I saw him there when I went there the second time. I saw Mr. Toalson there the second time. Mr. Best, Mr. Toalson, and I went there together the second time. The track was badly torn up at the switch and above and below. It was torn up only a little ways above and below, only two or three car lengths.” Q. “Is it not a fact, Mr. Warren, that on a former occasion you made a statement at Burnet to Mr. Tar-button, to the effect that you went to the scene of the wreck and examined the track on this side of the switch, but made no examination of the ground at the switch, and did not know anything about the condition of the switch, whether or not there were any rocks there ?” A. “I didn’t see any.” Q. “Didn’t you make the statement that you didn’t examine and did not see any?” A. “No; we were not there for the purpose of examining. I didn’t see anything of the kind.” Q. “Was not this question asked you: TL Had any person save the employes of the defendant reached the wreck before you got there ? If so, who was it, and where does such person reside ?’ And didn’t you make this answer: ‘No, I don’t think there was anyone there when I and Best got there the first time, except the train crew. We were not there more than five minutes the first time. There were a number of people there when we went there the second time.’ Now I want to ask you if this question was not asked you on that occasion: ‘Please state the exact condition in which you found the track at the switch when you first arrived on the scene, and the condition of the switch. State whether or not the switch was broken and whether or not the track had been torn up, or was it left in its original condition at the point of the switch. Be explicit.’ And if you did not answer: T could not say that the track was torn up and the ties shoved up together. I never examined the condition of the switch. I never noticed the switch the first time I was there. The track was torn up.’ Didn’t you make that answer ?” A. “Yes, sir.” Q. “Is not that true ?” A. “Yes, sir.” Q. “Were you not asked this question: ‘Please state whether or not you saw any rocks or other things placed between the switch track and the main track, or about the bottom of the switch or anything placed there to throw the switch out of line. If you did, describe what you saw and all about it.’ And did you not answer: ‘No, I didn’t notice any rocks, because I didn’t make a close examination. I was not there to make an inspection of the switch.’ Is not that what you said ?” A. “Yes, sir.” Redirect examination: “Mr Tarbutton came to find out what I knew about the wreck. He wrote out this statement. I did not know whether he was an officer taking my deposition or not, and did not ask him. He propounded these interrogatories to me, and I answered them. I can’t say for certain whether he told me he was in the employ of the railroad company or not. It has been several months ago since he came to see me. I was in the market at Burnet busy at work when he came to me. I have not talked with any attorney for the plaintiff in this case until to-day, that I remember of. I have received letters from Dr. Johnson. From the examination I made at the time, I will say that if there had been any amount of rock between the point of the switch and the main track, I would have seen it.” Edwin Best, for the plaintiffs:. “I live in South Austin. When this derailment of the train occurred, I was with A1 Warren, about three or four hundred yards from the scene of the wreck. We heard the noise and went right straight to the wreck. I don’t suppose it was over ten minutes from the time we heard the noise until we got to the place where the accident occurred. I don’t remember seeing anyone but the fireman when I first got there. The track round about the switch was pretty badly torn up. The whole train had crossed the switch. I think the caboose was about ten or twelve feet from the switch. As well as I remember, the track was thrown over towards the bluff; that is, south, just a little, but the switch was entirely torn up, plumb to the frog. I could not tell what caused the wreck. At that time I did not notice any rocks in between the point of the switch and the main track. I can’t say, though, that I made a close examination of it. We remained there only a few minutes, and went back to my house. I do not remember whom we left there at that time. I believe my little boy was there. I know the fireman was there, but do not remember anybody else. I was gone from there about a quarter or half an hour. I came back with Mr. Warren and Mr. Toalson. From the time I left until the time we got back was between a half and three-quarters of an hour, I reckon. When I got back, Sheriff White and Justice Johnson were not there. If they were there I did not see them. There were several parties there at that time. I did not remain there very long the second time. I do not remember seeing the justice hold court there. When I went back the second time, I looked at the switch track and the switch board again. At that time there were rocks in between the point of the switch and the main track. I had no trouble in finding the rocks; they were pointed out to me by Mr. Toalson. They were limestone rocks. They were wedged in between the switch rail and the main track. They were mashed down, they did not look to be loose.” Q. “Put in good ?” A. “They looked to be, yes; I never made a close examination; they were pointed out to me, and I just looked at them. I can safely say that there were ten or twelve rocks there; they were plainly visible. I reckon I didn’t happen to notice them the first time I was there, though I walked all around.there. Some of the rocks were as large as my fist and some larger. They were tolerably close together—looked like they had-been crammed in pretty close. As well as I remember, they were a little below the top of the rail.” Cross-examination: “Those rocks indicated where the wheels of the engine had passed over them; they were mashed down. When I was there the first time, I made only a casual examination, and when I came back the second time, I saw them.” Q. “Is it not a fact also that you noticed that the connecting rod or switch rod was disconnected ?” A. “I remember something of that kind being broken, but I can’t say positively. It may have been that, but I can’t say positively what it was. It was something at the switch. I do not remember if it was the first time or the second time I was there that I noticed it, but I remember the rod being broken. I remember the rod was broken or disconnected and rocks were placed in between the points of the switch and the main rail. The main wreck and pushing together of the rails was north of the switch. There were no cars against the switch stand. I think that switch track was put in simply to get rock out of the quarry.” Redirect examination: “Opposite the switch stand the track was thrown over next to- the hill; right at the point the rod was moved around to the south, just shoved over. That did not extend back and embrace part of the road south of the switch; there was nothing torn up south of the switch, as I remember. I think there were four or five cars thrown entirely off the track; I know that the caboose was not off the track.” Q. “Did this derailing there of that number of ears and the engine and tender tear the track up very badly ?” A. “I consider it was torn up pretty badly.” Q. “Is it not a fact that you could not tell what caused the derailment from the condition of the track ?” A. “Ho, I could not tell what caused it. I was acquainted with the condition of the track at that place prior to the wreck. The switch track was not level and had loose rails, and most of the time in wet weather it was under water. Between the rails of the main track, from where the wreck occurred on dowm to the bridge, there were large loose boulders of rock; it didn’t seem to be tamped down at all. It was not ballasted; there was no dirt in it. The ties in the switch were set with the la) of the ground; they were not level, and there was no dirt or ballast in between them. I had known that track to be in that condition for about three years. The switch track was moved after the wreck, but how soon afterwards I could not say.” H. L. Moore, for the plaintiffs: “In 1896 I lived in the south extension of the Bouldin addition, in South Austin. I resided something over a quarter of a mile from the scene of the wreck at the quarry. I was at the place where the accident happened on the day following the wreck. The road was fixed up that night, so that trains could pass. The switch was disconnected from the road that night. I was acquainted with the railroad track at that point since about February, 1895. In the switch track the ties were apparently imbedded in the ground; part of each tie was in the ground. The switch went down grade—that is, it leaned towards the bluff. I could not say whether the track was ballasted or not. The switch kinder went down grade sorter; that is it bent sorter towards the bluff; that is it looked like it was leaning towards one side until it got down a little piece. The character of iron on the switch track was old iron. The main track was in good condition. I do not know anything about the switch, as that is something I didn’t tamper with.” Charles C. Merrick, for the defendant: “I am the civil engineer and draftsman of the defendant company. I was educated in Ireland, and have pursued my occupation since I was about 16 or 17 years old. I am familiar with the construction of railroads and surveying, and all that sort of thing that pertains to the construction and building of railroads. I have been with the defendant company over ten years. This map shown me was made by me. The switch was not there when I made my survey. This map was made from actual survey on the ground and with reference to the profile of the road. When it existed there, that spur track was simply a track that ran into the quarry for hauling rock. This sketch correctly delineates the location and position of the main track and of the spur track, as it existed at the time of the accident. I have indicated here where the switch stand was. It was pointed out to me by the foreman of the section gang, and the impression was still in the ground where the head block that holds the switch stand was. About here at the whistle board is, a curve; the exact point of the curve I am not able to give you, but I think it is right at the whistle hoard. In other words, the north point of the curve is about opposite the whistle post. The switch point begins pretty near the switch stand, and these rails that come up here are called the deads’ to the switch. This, here, is the frog, which takes the direction of the side track or spur; and thus by operation from the switch stand the train is directed. The distance from the switch stand to the south end of the trestle is 119| feet. The length of the spur track is over 700 feet. I knew nothing of the switch and track before the accident. This is a correct map, as far as it can possibly be made, inasmuch as the indentations of the ties still remained in the ground, showing the location of the track. The distance between the tracks, measuring from center.to center, is fifteen feet.” Cross-examination: “I know nothing about where the switch track was, except as shown by the indications. I was never there while the switch was there. I made my survey in March, 1898. I do not know that the place I have indicated as the switch stand was where it stood, except by the indication of that large tie. Its impression was right there. It was a large hole and the indication is very plain. I could not swear that I have the ties in that spur track represented within an inch or two of their exact location, hut their representation on my map is practically correct. It is about as well as I could make it considering my information about it. I can be wrong only a very little. I am right, provided this is where the switch began, and provided they did not move the head block. Ho one told me to leave the curve off my map. I left it off because it would take up more paper and room. It is not a fact that I was told to make a map that did not show the curve. I" did not talk to Mr. Tarbutton about making this map. He gave me instructions to make the map. He said, ‘You go out there with the foreman, and make a survey of that place.’ I refer to the foreman who was there at the removal of the wreck. I don’t know his name. After I made this map, I gave it to Judge Stedman, the general attorney of the road. Mr. Tarbutton, I believe, did not see the map until to-day. I am a draftsman, and build railroads when they are to be built. I go along and lay out proper places to build the roads. My map shows from the trestle work to the switch stand, 119.5 feet and from there to the whistle board is forty-six feet. I am familiar with the construction of switch stands. The rails are held in position by irons bolted to the flange by lugs by several different ways, according to the patent. That switch performs the office of holding the rails in position. If you spike the rail down, it can not be used under any circumstances. There is a moving rail, the portion that forms the switch that throws from one track to another. There is no spike in them, because if there were, you could not shove the track. If a switch is properly constructed, the switch and its machinery will hold the rail in position.” Redirect examination: “If the switch is not in use and it is desired to prevent people from throwing the switch, it is a good idea to spike the rail down. It is usual, when a switch is abandoned and the switch is not removed, to spike the switch stand.” R. B. White, for the defendant: “I went to the scene of the accident late in the evening of that day. I know the time of the accident only by what I was told. I was told it was about half-past 3 o’clock. Justice Mat Johnson and I went out there together. We took a hack and went to the bridge office and went from there on a switch engine. I suppose it took us about half an hour to go out there. When we got there, there were a good many persons there. I did not know many of them. They were all railroad men, unknown to me, except Mr. Powell and the engineer of the switch engine. There may have been others whom I knew. It was late in the evening and raining, and I was busy talking with the railroad men and did not notice particularly who was there. After we arrived at the place where the wreck occurred, I first went to where the cars were standing on the track. They were south of the switch. Some of them had run in on the siding. I think the front trucks of the car standing immediately over the siding where the siding left the main track had taken the siding and the other trucks had taken the main rail. There were eight or ten cars south of the switch, standing on the track. It would be guess work with me to state how far the engine passed the switch, as I didn’t pay any attention to that. I had gone down some distance on the siding. I could not say now whether the engine was turned over or not, but I rather think it was. The switch had been thrown at the switch stand. The rails of the switch had been thrown out to the main line rails. The lever had been uncoupled from the foot of the switch stand and the switch thrown, pushing the switch rails over to the main line rails. I saw some rocks in between the two rails. The rails could have been held open by the rocks. The whistle post had been wrenched around in the ground a great deal, and it looked like somebody had been trying to get it up. I did not notice any mud on the whistle post. At the whistle post, Mr. Johnson and I looked for tracks. There had been a great deal of tramping around following the rod. The switch target was turned to show that the main track was open and as though the switch was locked. The lock on the switch stand was broken and hanging there. I think there were three rocks between the point of the switch and the main rail. There were two tolerably large rocks a little larger than a man’s fist, maybe one larger than two fists. When the switch track was closed, the rocks were between the two rails; when open, it would drop back some three- or four inches, probably more than that. Those rocks were down between the two rails about two and one-half or three feet from the end of the switch rail. I guess that left an opening of three or four inches at the end of the switch and main track. I have that switch lock in my office. It has been in my possession since the wreck. I did not bring in the connecting rod.” Cross-examination: “It was late in the evening when I reached the scene of the accident. I could not see what time it was. It was late in the evening and we stayed until night. We were there an hour or two. I was told that the wreck occurred at half-past 3. If that be the correct time, I could not say whether it was two or three hours afterwards before we reached there or not. It was in the winter time and it would be guess work for me to attempt to state the hour we reached there. The switch target was thrown to indicate that the- main track was clear. I have had a little experience in railroading, having worked in the business about six months, when I ivas about 18 years old. I worked for the Louisville & Nashville. The track immediate^ near the switch stand was not torn up. It seemed to be shoved a little and spread some, but the tracks further down I did not examine particularly. The cars were piled down there. The body of young Johnson was lying some distance north of the switch stand, on the west side, of the main track. There was a ear partially turned over and he was under it. My best recollection is that one of those rocks ivas about the size of two fists, and one about the size of one fist and one was -smaller. I noticed only three. They were right between the switch rail and the main line rail, and the flange of the wheel coming down had run over the rocks. I saw where the rocks were crushed and wedged down. If you take that switch and the lock was broken as I found it, and loosen it, any person of ordinary strength could take the lever and throw the track open, so a train would get off the track, unless the rail was spiked down. In this switch there was a hole in the tie, and spike lying in the switch, partially taken out of the tie just this side (north) of where the switch stand stood. I donT know whether it was spiked down or not. I saw only that one spike. When they bent the switch, the rail was pushed over west, and this spike was in front of the rail. The hole was larger than was necessary for the spike to go in. I could not tell you whether the spike could have been lifted out with the fingers or not. There was a long tie where the switch stand was. I think this hole for the spike was in the tie just north of the long tie. My deposition was taken in this case. I see by the deposition that I stated that the hole was in the long tie. I suppose it is correct. I aimed to make it correct, but I don't remember definitely which tie the hole was in. After the wreck Dr. Johnson came to me, and I told him that in my opinion it was clearly a wreckage of the train, and that nobody could have done it, except somebody who was a railroad man or had been one; I only surmised that in regard to the signal board. I formed my opinion because of the uncoupling of the switch and the turning of the signal to show that the main track was clear. I think that the man who uncoupled the switch board and turned the signal knew his business." Redirect examination: “When the switch is thrown, that shows the red target. In order to show the white signal, they would have to disconnect the rod at the bottom. The flanges had crushed the rocks a little as they went over. The rocks were not ground up. When I stated to Dr. Johnson that in my opinion the man who wrecked that train knew his business and. was a railroad man, I did not imply that it was any of the railroad employes. I had no reference to the crew.” M. M. Johnson for defendant: “I am justice of the peace, and have been for about six years. I remember going out to the scene of the wreck in company with Sheriff White. T think it must have been as late as 3 o’clock or past that time when we got out there. I know it got dark as we got out there. My recollection is that the engine was •off the rails, probably straddling some of the rails. I remember looking more particularly at the box ears. I think the tender was off between the tracks. My recollection is that it was not more than twenty or thirty feet from the switch stand. I don’t know how many cars were on the track south of the switch, as I did not count them. I think at least two or three cars had passed the switch and were off the track. • The switch was thrown open and some rocks were wedged in between the rails and the switch stand or switch board, or whatever you call it. I am not a railroad man and do not know the name, but it was the lever that worked the switch rod that was unhooked and disconnected from the bar that runs across there. I think the switch lock was broken. It looked like somebody had been twisting the whistle post out of the ground. I noticed tracks.around the whistle post. I did not notice any spikes where the rocks were. I did not notice as carefully as Mr. White. I stopped where the man was under the car, and was there some time, getting him out, before going to where Mr. White was.” Cross-examination: “The rocks I saw looked like rocks that had been ballasted in there. They were mashed up and looked like the train had run over them and mashed them some. I found the switch stand cut loose from the bar that catches the rail, and the lock broken and put back in its proper place standing upright. There was no car or engine tumbled over on the side to knock it down.” J. G. Smith, for the defendant: “I am a locomotive engineer on freight trains in the defendant’s employ, and have been an engineer on that road for about ten years. I wras the engineer of the train on the occasion of the wreck at the rock quarry switch. Mr. Boylan was the conductor, Chris. Beek was the fireman, Mr. Dues was the head brakeman, and Fred Johnson was the swing brakeman. The rear brakeman on a freight train stays in the caboose, and the head brakeman on the front end of the train, about four or five cars back from the engine. At the time of the accident Fred Johnson was riding on the fireman’s seat box, in the cab of the engine. There was nothing connected with his duty as swing brakeman that called him to the engine, and he had no business on the engine. 1 think we had about eighteen cars, engine tender, and caboose in that train. We were coming east towards Austin. As we approached that switch, the target indicated the main line. We approached the switch at about twelve or fifteen miles an hour, not over fifteen. I discovered that the switch was open when I saw the points pried open. I was about sixty feet away when I saw the switch was open. I applied the brakes, the air and the emergency. That train was partially equipped with air and was equipped with hand brakes, and the engine could be reversed. I applied the emergency, called for brakes, and reversed the engine. Johnson hallooed, ‘My God, look there at the switch, Smith/ I said, ‘Somebody has been fooling with it/ He jumped off. He had a little bit the advantage of me^ for he was closer to the side we had to get off on and that gave him the start of me. By the time I reversed my engine and got down off my box he jumped, and I jumped over him and went beyond about ten feet. The engine then ran on I judge 100 feet beyond the switch, running on the ground. It ran between the main track and the spur track. The engine did not upset. The tender did. I think five or six cars were derailed. I do not know how many cars remained on the track, south of the switch stand, but guess about fifteen. Only one car turned over. The track was not torn up very badly. I think the only place where the track was damaged much was in that cidvert. It tore up the cross ties a little. It marked them some. The fireman did not jump off and was not hurt. I went back and examined the points of the switch and found that the switch had been disconnected between the .points. Those little straps that hold the points. There are four little rods in here. Whoever did this disconnected these rods and pried this thing over the main line rails and the target was run up for the main line. It showed white. I examined the lock of the switch and found it had been beat with something. I made this examination about five minutes, after the wreck. The first thing I did was to crawl over to see if anything could be done for Mr. Johnson. He was within seven feet of me. A box car had turned over on him and crushed him to death, and then I examined the switch. I was hurt in the shoulder. I did not examine the whistle post. I did not go back that far. I found the switch rod disconnected and saw rocks and spikes shoved in between the points of the rails.” Cross-examination: “I saw four or five spikes holding the points away from the main line rail. I did not touch any of them. Those spikes and rocks were driven in between the point of the switch and the main line, spreading them away from the track. The spikes were dropped in between the rails like the rocks. They were not driven into the ties at all. Johnson was the swing brakeman. I could not tell you whether he worked over the entire train or not. I did not get off my engine before it left the track, nor did Mr. Johnson. The fireman was on the deck of the engine between the tender and the cab, where the fireman shovels coal, at the time Johnson and I jumped from the engine. I have no instructions forbidding brakemen from riding the engines. I do not know whether it was customary for brakemen to occasionally ride on engines or not. It is customary and been practiced here for years for brakemen to ride on top of the train coming down both of these Austin hills. There is a bulletin from San Antonio for the brakemen to be out on the train approaching all stations. I do not know whether it was raining at the time of the wreck or not. It rained very hard afterwards. It rained off and on all that day, and Johnson had been on the engine principally all day.” Bedirect examination: “I think the accident occurred about three o’clock. Going at the speed we were traveling, carrying the number of cars we had in the train, by the application of the emergency, reversing the engine and using all of the appliances, I could have stopped the train within about 250 feet. I said we were about 60 feet away when I discovered that the switch was open. It was impossible at that time to stop the train before going into the switch.” Becross-examination: “Just as you approach that switch as I approached it there is a curve. When back here (south) approaching that curve you could not see any object on the track. Because of the curve you could not see the points of the switch further than sixty feet. If the track had been straight, I could not have seen obstructions 250-yards away, but could have seen far enough to have gotten everything clear. I do not know that I could have seen obstructions in time to have stopped the train, but there would have been no damage done. I was hurt in the wreck, and Mrs. Boy came up there and got me. She invited me to her house, and she and Dues walked with me. I do not remember whether they led me or not. I was suffering a great deal of pain, but was able to walk without assistance, as I was not injured in .the limbs anywhere. I was there about the engine somewhere, when they came after me. A car had fallen on Johnson and that was the cause of his death. I was within seven or eight feet of him, and crawled up to him to see what I could do for him. After leaving him I went to the switch. After I got through at the switch I walked on down to the engine. Ho one went down to Mrs. Boy’s to get her to come for me. She came there and invited me to go to her house. Before Mrs. Boy came to the scene of the wreck, the fireman, the head brakeman, the rear brakeman, the conductor and myself were there, and quite a lot of men came around there in a few minutes. The conductor came up there before I went to Mrs. Boy’s. I stayed at Mrs. Boy’s about three-quarters of an hour or an hour, until the switch engine came out, and I came to town with Mr. Powell. I made a careful examination of tilings around the wreck. When a man gets hurt he wants to know the cause of it.” John Boylan, for defendant: “I am a freight conductor on defend- • - ant’s railroad. I was conductor of the freight train which was wrecked at the rock quarry switch. I think we had about; fifteen cars in the train. I was downstairs in the caboose just before the wreck. I think we approached the switch at about the rate of twelve miles an hour. J. G. Smith was the engineer, Chris. Beek was the fireman, and H. B. Dues, J. P. Johnson, and Mr. Bowles were the brakemen. Mr. Johnson was the swing brakeman. His position was in the middle of the train. I do not know that any of his duties called him to the engine. There was a call for brakes as we approached the switch, and I ran up in the cupola of the caboose, reaching there just as the wreck started. I could not see the engine when it left the track, as the box cars were twisted around in the way. After the wreck, I got out of the caboose and looked around, and found the switch rod disconnected and rocks put in between the two rails to keep the switch open. The target showed white, which meant 'track clear’ for the main line. To the best of my remembrance the switch lock was broken, and I remember that the switch rod was disconnected. I did not notice how many rocks were between the rails. I think about nine or ten cars remained on the track south of the switch. There were three cars turned entirely over. After leaving the track the engine went about sixty feet, stopping between the tracks. I saw the marks of the engine wheels on the ties. The wrecking began about ten feet north of the switch. It was some time after the wreck before I examined it. I did not examine the track immediately. I did not know what caused the wreck right at the time; didn’t have time to talk to the engineer, who was hurt. I came to Austin for help, and as soon as I got hack we examined the track. I went to Austin, and brought back the coroner’s jury and the sheriff. I have not heard anything of Bowles for more than a year, and do not know where he is.” Cross-examination: ''The engineer was hurt, but not disabled. He was removed to a farm house while I was gone. When I left to go to town, he was at the front end of the engine. He was moving around there and spoke of going to town for help to get the car off of Johnson, and he said, 'while you are there, do something for me.’ He was suffering. Smith came to town that evening, but I do not know how he came. I know that that switch track had been there for about ten years. It was removed after the wreck. The wreck occurred right at the point of the switch. They had been using the switch track. They had been pushing cars in there; piledriver in there; they had been hauling rock out of there. I think they fixed the main track up after the wreck and never connected the switch again. During the ten years I knew that switch, I used it two or three times. I do not know whether I used the switch within a year before the accident or not. The switch track was not in such.condition that a train could not be run over it. We have used the switch, but did not run over it at any rate of speed, as it was only a side track. There was a curve right at the switch. An engineer could see the target for some distance, but I do not think he could see the switch over fifty yards, on account of the curve. There is a heavy grade coming this way at that point. It requires two engines to take a train of freights south-bound over that grade. There is no other point on the road where two engines are required for this. 1 believe the grade commences at about Kouns and comes on gradually until you strike the bridge. I believe this is the heaviest grade on the road of defendant. It had been raining on the day of the accident. At Manchaea I gave Johnson a sack to deliver to a party there, and in getting back on the train he boarded the engine. He had no service to perform on that end of the train from there to Austin. I do not know of any rule forbidding brakemen from riding on engines.” H. B. Dues, for the defendant: “I was head brakeman on freight train No. 66, which was wrecked at the rock quarry switch on December 30, 1896. Mr. Boylan was the conductor, Jack Smith was the engineer, Chris. Reek ivas the fireman, and Fred Johnson, Mr. Bowles and I were the brakemen. Mr. Johnson was the middle brakeman. I could not tell you whether his duties called him to the engine or not. I have not heard anything of Bowles for a long time. I think we had between fifteen and eighteen cars, engine, tender, and caboose in that train. The wreck occurred somew'here near 3 o’clock in the evening. At the time of the Avreck I Avas on the fourth car from the engine. Fred Johnson was on the engine. If any signal for brakes or any other signal was given, I did not hear it. The car I was on did not upset. It stood straight, but went crossAvise the track. The engine left the track right at the point of the SAvitch and stopped about a car length north of the little bridge. The tender stopped just north of the trestle. The engine Avas straight up and the tender Avas turned over on its side. I think six or seven cars came north of the switch. Three cars were upset. All the cars south of the switch remained on the track. When Ave went back to the switch we found it split. There Avere rocks in the switch and also in the frog. The bottom rod Avas taken off the SAvitch and the lock had been battered, but was not broken. The switch target showed Avhite, meaning that the main line was clear. The track was torn up at the bridge. The tearing up Avas north of the switch.” Cross-examination: “I made a careful examination of the track, the SAvitch stand and the bottom of the switch stand. I did not make a careful examination of the rocks. As I said before, I think the lock Avas not broken, but it Avas battered. All the cars north of the switch Avere derailed, some going on one side of the track and some on the other. From the culvert back to the switch some of the rails were torn up, and some Avere not. The engineer Avas hurt, but not very seriousty. I took him to some lady’s house. The lady came up there, and Smith and I Avent to her house. I assisted him in Avallcing over there. I do not remember Avhether the lady took him by one arm and I on the other side and led him or hot. I took him down there, but there was no necessity for her to help. He leaned on my shoulder and walked down there. He put his arm around me like that, and partly carried him. I found him sitting down on a tie near the side of his engine at the time I started AA'ith him doAvn there. He had been there from the time of the Avreck, until I carried him to Mrs. Roy’s. I had not seen him anywhere else about the train up to that time. I had not seen him up at the other places. I Avas there about the time he was. We AAent to no other place together. When I Avent Avith Smith and the lady to her house, I left the fireman there. Smith remained at Mrs. Roy’s until after the conductor had come to -toAvn and Mr. Powell had come out with the SAvitch engine, and he A'vas carried from Mrs. Roy’s and put on the engine and brought to town. I do not remember now whether there Avas anybody else there or not. Mr. Boylan had come to town. I made my examination after taking Smith to the lady’s house. Mr. Boylan got off the caboose immediately after the wreck, and after ascertaining the condition of the train, he came to town. I do not think he made an examination of the switch before he started to town. I examined it before he did. I saw the row of rocks in the switch, but did not notice any spikes.” Redirect examination: “I do not know as a fact that Smith did not make an inspection of the condition of affairs before he was taken to Mrs. Roy’s house, as I was pretty well rattled and stove up, and do not remember.” W. W. Nicholson, for the defendant: “1 am section foreman on defendant’s road from Austin to south of Kouns, and on December 30, 1896, my employment was the same. At that time I had been foreman on that section two or three years. It is my duty to keep the track in good repair and keep the switches and switch stands in good repair, and also to inspect them. I was at the switch where the accident occurred one or two days before the wreck. That siding was used for getting rock out of the quarry—loading cars. I am familiar with the operation of switches, and know their mechanism, and it is my duty to inspect them. That switch was in good condition the last time I was there, one or two days before the wreck. When that spur track was not used for the purpose of getting out rock, I kept it spiked down all the time. We used three spikes, one in the head block, one in the next tie north of the head block, and one in the tie immediately north of that one. When we had occasion to use the switch to get out rock, we had to take a claw bar and pull the spikes out, so that we could throw the switch. The last time I was there, I put in the third spike. I put it in either the second or third tie north of the head block. I do not .know what time the wreck happened, but it was after dark before I got there. I made an examination of the track at that point the next day. On the day after the wreck, it looked like the spikes had been driven out and driven down and pressed back with something. All three of the spikes had been pressed back and knocked down. The switch stand was torn down that night in getting the cars out of the way.” Cross-examination: “I was there during the morning of the day following the wreck. Two or three of the spikes seemed "to be torn loose and mashed into the wood. As well as I remember, they were all in the holes, but mashed over. What I have testified to in reference to the spikes is what I saw the night of the accident and the next morning, too. When I got there that night the lock of the switch had been taken away. I worked there all that night, helping clear up the track. From the switch on down to the culvert and beyond the culvert where the engine was, some of the rails were torn up and scattered around there. I think some of the irons on the bridge were broken. That was done by the cars. Not all of the track was ripped up generally. Of course it was in different places. There was no trouble with the track south of the switch. The spikes were driven there to keep any accident from happening,—to make it safe. The spikes were not necessary for the purpose of holding those rails in position. Using switches only once in a while, we have to watch them; and to prevent anybody from tinkering with the switch, we drive spikes in the ties. I was ordered by the road-master to drive those spikes in that switch. One of the spikes I put in a' day or two before the accident, and the other two had been there for some time. We used the switch occasionally. When we had occasion to go into the quarry we took a man with a claw bar to pull the spikes out. The spikes had been pulled out many and many a time. If so, we put them back in new holes. There was no spike there which you could pull out with your fingers. I have known more than a dozen cars of rock to be hauled out of that switch within four years. Whenever a car load of rock was needed, we would go in and get it. It was a good switch. I have examined and worked with it, and have unlocked and thrown the switch a good many times. Sometimes I would unlock and throw it to see if everything was all right. I had not had orders to remove that switch before the wreck. The switch was removed after the wreck and there has been no switch there since. There is still some rock in the quarry, but it would not pay to rebuild the switch. That switch had rock and ballast in it. It had been surfaced with dirt, rock and gravel. The rock was broken up and put in in small pieces. Some of the rocks were as big as your fist. They were filled clear up to the ties. I looked at the connections of the switch rods the night of the accident; they were torn up. The track was not torn up right at the point of the switch. The tearing up commenced several feet ahead; the track was not torn up until you got past the frog. I have the key to this switch lock. The key will not unlock the lock. I do not know whether the lock that was on the switch was battered or not. I did not see the lock, as it had been taken away. This lock appears to be battered and torn up. It is bent and something is wrong inside of it. Train men carry keys to fit locks. We cleared up the track that night and removed the switch track, and the first train passed over it about daylight the next morning. There was a' large force of men at work there from about an hour or two after the wreck until the next morning. The switch rail was spiked down with three spikes. Little rocks could not push it out of place. A man would have to get the spikes out of the way before he could get the rocks in there. It would not have required a man with a claw bar to take the spikes out. He could press them out. He could not take them out with his fingers. He would have to press them back and hammer them back. If he had anything to press them with, it would not make any noise. I think it was three or four hundred yards from the switch to the nearest house. In a wreck like that, if the cars hit the spikes, they would throw the spikes out." Chris. Eeek, for the defendant: “I recollect the accident out at the rock quarry in which Fred Johnson was killed. I was the fireman on the engine on the occasion of that accident. Jack Smith was the engineer, John Boylan was the conductor, Harry Dues was the head brakeman, Fred Johnson was the middle brakenian, and I do not know the name of the rear brakeman. At the time of the accident I was sitting on the seat bo