Opinion of the Court. "A. How long after that? oh, it was very short. "Q. And then what, if anything, did the engineer, on the car, on the engine that he was working, do in response to that signal; what did the engineer do with his engine in response to that? "A. Why, he backed up. "Q. How did he back up? "A. He came back with great force to this car." This testimony, it is apparent, does not even tend to show that the switchman Kilpatrick understood the warning given by Rice, or that he acted upon it by transmitting a signal to the engineer to stop the train, and then signalled to continue. The mere presence of Rice, if owing to the noise of the moving train or from other reasons his warning either did not reach or was misunderstood by Kilpatrick, was not sufficient to convey the fact that men were working under the car, and therefore it should not be coupled. Rice was an air adjuster. His work could not be done without the coupling of the car. His mere presence, therefore, if his voice was not heard and his words understood, would have naturally suggested that he desired the coupling to be done in order that his work might be accomplished. Nor can it be considered, without any evidence tending to that end, that Kilpatrick understood the warning, knew the men were under the car, signalled to stop the backward movement of the caboose, and then suddenly, without any change in the situation, give the signal to back up. Such conduct on his part would have been murder, and is certainly not to be presumed without proof, on bare suspicion. The testimony of Fowers, full excerpts therefrom being in the margin, whilst more contradictory than that of Rice, likewise fails to show that Kilpatrick actually understood Rice or acted on the warning by him given.1 1"Mr. Rice was standing outside of the car, and I says to him, says I, You go and stop him, and don't let them hit this car at all, and told him that it could not get out on the train until it was repaired. Of course, they could not make up the train until that car was repaired, and says I, Don't let them hit the car at all, and we will have it done in five minutes. Says he, All right; and stepped down to the other end of the car, and I saw him Opinion of the Court. An examination of this testimony at once demonstrates that the only matter therein which seemingly tends to show that Kilpatrick understood Rice is the statement of Fowers, that he heard Kilpatrick make some reply, although the witness could not give the nature of the reply. But the question is, not whether Kilpatrick heard the voice of Rice, but whether he understood his meaning; therefore the mere fact that the witness testifies some reply was made, without giving the reply, signal for the engineer to stop, making the regular signal with his arms to them coming up." "Q. What, if anything, did he say at that time? "A. He didn't say anything at that time- he stood and signalled. I was standing right at the end of the car, still looking down, and saw Mr. Pool leaning back over the rail this way — about in that position — looking back at the engine coming. They came up very slow within about six feet of the car that he was working under, and then came to a stop. I heard Mr. Rice tell somebody not to hit the car; that they were working there. As soon as I heard him say that I just went right to work, and jumped right under the car again with Mr. Pool, and he turned his attention right to the work, and we went to work again. I felt a little uneasy myself, thinking they might try to couple the caboose on to the car that we were working under. They can do that very easily sometimes, you know, without moving it. So I leaned over the rail- I was kind of on my knees and I turned my head, and leaned over the rail to the east, and looked right out, and there I saw one of the yardmen giving a signal to back up. I could see the motion of his arm and part of his body, and says I, Look out, Joe, they are right on us; and threw myself head first out over the rail." On cross-examination he said : "Q. Did you advise those switchmen to notify the engineer you were in there? "A. No, sir; I told Mr. Rice to tell the switchmen that we were in there repairing a car. "Q. And you relied on the switchman to attend to notifying the engineer? You expected him to notify the engineer? "A. Yes, sir. "Q. To protect you both - Mr. Pool was in the same condition or position, did he expect that, too? "Q. Mr. Pool and yourself both relied on the switchman to notify the engineer, and you thought the switchman would attend to it? "A. Yes, sir. "Q. That he would notify them. Could the engineer see you from where he was, out on the engine? Could he see you were in there with the caboose and car between you? Opinion of the Court. in no way shows that Rice's warning was comprehended. Indeed, the entire context of the testimony shows that Fowers himself was uncertain whether the warning given by Rice was received and understood by Kilpatrick, for when asked in the first instance, whether Kilpatrick in giving the signal to back did so after he had been warned by Rice, answered, "Well, I suppose," a mere conjecture; and again, when asked if the engineer had stopped the engine in consequence of a signal "A. No, sir." After stating the presence of Rice beside the car, he was asked: "Q. And you requested him to notify the engineer? "A. Yes, sir. Understand, of course, that they could not use the air on that train until we had done these repairs, because they could not make the coupling with the rest; they were waiting for these repairs. "Q. Sir? "A. They were waiting for these repairs. “Q. While he was standing there you just requested him to notify the engineer not to back back? "A. Not the engineer but the switchman. "Q. Not the engineer, but the switchman, not to back back the engine? "A. Yes, sir. "Q. You don't know whether he notified them or not? "A. I heard him tell them not to hit the car, and that was satisfactory to me. "Q. You supposed it would not be struck? "A. I supposed it would not be struck; yes, sir. "Q. Did you see the switchman yourself? "A. I saw one of them a part of one of them-I could see his arm and part of his body. "Q. Well, was it the switchman that Mr. Rice spoke to that beckoned the engine to back back? "A. Yes, sir; I heard Mr. Rice talking to that switchman, and I suppose it was that switchman. "Q. Well, what switchman was that; who was it? "A. I think it was Ben. Kilpatrick; I would not be positive which one it was. "Q. But do you think it was Ben. Kilpatrick who signalled the engineer to back back? "A. Yes, sir. "Q. And struck this car? "A. Yes, sir. "Q. And he did that after he had been warned by Mr. Rice? "A. Well, I suppose "Q. Well, after you heard Mr. Rice tell him? VOL. CLX-29 Opinion of the Court. from Kilpatrick, his reply was, "Yes, sir; it must have been," a mere opinion. On cross-examination, in answering a question asking, "Who then signalled the engineer not to back back?" Fowers answered, "Yes, sir." But the whole context of his testimony shows that the word "not" in the question was misunderstood by the witness, for he was testifying solely as to the signal given to back after he (the witness) was under the car. Indeed, this is the only signal which Fowers testifies he saw given by Kilpatrick. To construe this question and answer as relating to a presumed signal not to back given by Kilpatrick to the engineer in consequence of Rice's warning, would contradict the whole of Fowers' testimony, since it clearly shows that no such signal was seen by him, and that the only signal which he noticed was the one given to make the coupling which led to the death of Pool. "A. Yes, sir. "Q. He done that after he had been told by Mr. Rice not to hit the car? "A. Yes, sir. "Q. Who then signalled the engineer not to back back? "A. Yes, sir. "Q. It was the switchman? "A. It was the switchman, yes, sir. "Q. I think you got back under the car, as I understand you, and commenced to fix this bolt? "Q. Well, after they came to a stop, did you know that there was any signal, and who was it made the signal to back back farther? "A. At the time that I saw the signal I was under the car, but leaning out over the rail, and I saw the signal for to back up; that was after they had stopped, and after I had got under the car again, and at that time I leaned over and saw, I think it was, Kilpatrick, giving a signal to back up. "Q. You saw Kilpatrick give a signal to back up, and immediately after that signal they backed up and you sprung out? "A. Yes, sir. "Q. And that is the time that Pool was caught? "A. Yes, sir." On his redirect examination he said: "Q. Where were you when you saw Rice communicate, do you know, to Kilpatrick? "A. I was standing at the north end of this car. Opinion of the Court. Finding no proof, whatever, that the switchman actually understood the warning given by Rice and acted upon it, there is nothing in the record to support the conclusion below that, as the warning was actually given and understood, Pool was thereby relieved from the legal consequence of his negligence in having gone under the car without placing the usual and customary signal, of having remained there in the presence of an impending danger, and, when there was ample opportunity to avoid it, of having failed himself to give a warning as the car moved down, which the proof shows he could have done, thus rendering his position absolutely safe. The judgment is reversed, and the case remanded with directions to grant a new trial. "Q. Standing there? "A. Yes, sir. "Q. Where was Kilpatrick; on which side of the train? "A. He was right in front of the caboose, I think. "Q. Where was that caboose from where you were? "A. Well, it might have been twenty feet at that time. "Q. I understand you to say it was about twenty feet to where Kilpatrick was? "A. Yes, sir; when Mr. Rice spoke to him. 'Q. Did you see Kilpatrick when he spoke to him? "A. Yes, sir. "Q. Well, did he hear him; are you able to say that he heard him? "A. Well, I heard Mr. Kilpatrick make some reply, but I don't know what it was. "Q. He replied, did he, when Rice spoke? "A. Yes, sir. "Q. This was the time the engine was standing still? "A. No, sir; she was moving then, and came up within about six feet and then stopped. She was stopped at the time "Q. I know; but after Rice spoke to Kilpatrick the engineer stopped the engine. "A. Yes, sir. "Q. Was that in response to signal from Kilpatrick? "A. Yes, sir; it must have been. "Q. What did Kilpatrick (of course meaning Rice) say when he communicated to Kilpatrick; did he refer to your being under the car? "A. I would not be right positive as to that. He told him not to hit the car, and I think he said we were working there." |