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 1 
 
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(^ 
 
 n th^ (S^mxX 0|f glpp^al 
 
 Appeal from the County Courl of the County of 
 
 Middlesex. 
 
 Jljettotm 
 
 SILAS G. MOORE, 
 
 AND 
 
 (AppelUmt) Plaintiff, 
 
 THE GRAND TRUNK RAILWAY OF CANADii, 
 
 (Respondents) Defendants. 
 
 APPKAL BOOK. 
 
 ELLIOT & JARVIS, 
 JOHN BELL, Q. C, 
 
 Solicitors for Appellant. 
 Solicitor for Respondents. 
 
 bonbon, ©nt. : 
 London Printing and Litiioguaphino Coiipany. 
 
 1S90. 
 
 <t: 
 
 < 
 
E 
 
 Ji 
 
|tt tint ^»^ri of gijfpeal 
 
 , Appeal from the County Court of the County of 
 
 Middlesex. 
 
 J^dlueeiT 
 
 SILAS G. MOO HE, 
 
 AMI) 
 
 (Appellant) Plaintiff, 
 
 THE (iUAND TKUNK RAILWAY OF CANADA, 
 
 ( licyMjiuknts) Dkkknuants. 
 
 APPEAL BOOK. 
 
 ELLIOT & JARVIS, 
 JOHN BELL, Q. C, 
 
 Solicitors for Appellant. 
 Solicitor for Respondents. 
 
 JL'ontiou, ©nt : 
 LosDON I'iuntinl; an'h LrriiraiiiAPiiiNc Company. 
 
 1890. 
 
INDEX. 
 
 PAOK. 
 
 Mtatkmknt (IK Cask 3 
 
 I'l.KAUINdS 4 
 
 Statkmknt (IK Claim — Filed I4lh .luimary, IH'JO 4 
 
 Statkmknt (ik I)i;kkN(;k.— Filed Hid Kcliriuiry, 181)0 5 
 
 JoiNDKH — Filed 7th Febiuiiry, 18il0 S 
 
 TiUAl.-ddiie lull, 18110 () 
 
 KviUKNCi': 
 
 SiliiM Ci. Moovt! (I'luintid), FAniiiiiiatioii in cliiof t! 
 
 " " Cross-exaiuiiiatifiii !> 
 
 " " Uo-exaiiiiiiiiti(iii 10 
 
 Diuiiel Stewart, Exaiiiiiiiitidii in eliiel 18 
 
 " Cross-examination 20 
 
 " liC'-exainination 22 
 
 William Tlioni)j.soii, Kxaminatinii in chief -3 
 
 " Cross-examiiiatioii 23 
 
 Motion kou Non-Suit 24 
 
 Dkkknck •• 26 
 
 Amos lilackwell, Kxamination in chief 26 
 
 " I 'I'oss-examination 27 
 
 " He-examination 28 
 
 TlioiiiaH Isheiwood, l-'-xaminiition in chief 29 
 
 " Cross-examination 30 
 
 Michacd Durkin, Kxamination in chief 32 
 
 " Cross-examination •>2 
 
 JoliiiT. Worth, Kxamination in (;liief 33 
 
 " Cross-examination 34 
 
 Frank (J. Turten, F'xainination in chief 35 
 
 " Cross-examination 3r> 
 
 William Heaman, Examination in chief 36 
 
 " Cross-examination 3(5 
 
 Andrew .larvis, FA-ainination in chief 37 
 
 KkNKWAL UK Al'l'LICU'lON FOli N(JN-.SUIT 37 
 
 JuUUK's ClIAIUlE 38 
 
 t^l!KSTI(lNS LkKT to .ilKY AND ANSWE1{« 45 
 
 JuiKi.MKNT 46 
 
 Heasons ok ArriCAL 46 
 
T 
 
In the Court of ^ppe^nl* 
 
 IN THE COUNTY COURT OF THE COUNTY OF MIDDLESEX. 
 
 liKTW^.KX 
 
 SILAS (J. MOORE, 
 
 (Appellant) Plaintiff, 
 
 AND 
 
 THE GRAND TRUNK RAILWAY COMPANY' OF CANADA, 
 
 f licspomlrtifs) Defendants. 
 
 STATEMENT OF CASE. 
 
 10 This is an action bvouii;ht by the I'laintin' for personal iiijurii's and damage to property sustained 
 
 by the jilaintiH' by reason of a freiglit tiain of tlie defendant company cnmiuf,' into collision with the 
 conveyance in which the plaintilV was driving while crossinj.; the tracks of the said company on Mait- 
 land street, in the City of London, which accident the plaintilf attributes U> the nef>li<,'ence of the 
 servants of the defendant company. Tln^ learned jud^e at the trial jiut eleven questions td the Jury, 
 and on the answers to these (jucstions he entered a verdict for the defendants with costs. Against this 
 verdict the plaintilf now ajijieals. 
 
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WiiiT Issued oud DECEMnKii, 18«9. 
 
 STATEMENT OF CLAIM. 
 
 1. The plaintin' is a bailid', vesidiu.u at the City of London, and defendants are a railway 
 corporation operating throu;j;ho>it Canada. 
 
 2 On the 2nd day of October, isS'.), tiu' plaintiff was crossing the tracks of the defendant 
 company at Maitland street, in the said City of Lon.lon, when a freight train, or a portion thereof, came 
 in contact wilh the conveyance in which the plaintifl' was driving, overturning the said conveyance 
 and violently throwing the jilaintilf to the ground. 
 
 3. By said colli.si..n said conveyance was completely destroyed and the plaintilf was much 
 10 injured in the back and riglit hand. 
 
 4 Tlio plaintilf allc-os that f,ai<l accident was caused through the negligence of the defendants' 
 servants, no walrlnnun being stati.)ned at said crossing, or no intimation whatever conveyed to him of 
 the apia-oach of said train. 
 
 The plaintilf Hainis slOii (iamages for de.struction of said conveyance, and $100 for his personal 
 injuries. The plaintilf proixisos tliis action to be tried at London. 
 
 Delivered and lilcd thi.- Utli dav ol 
 Plaintifl 's Solicitor. 
 
 .huiuary, 1890, by Hume 1'.. Elliot, of the City of London, 
 
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10 . JOINDER. 
 
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 The plaintin' join3 issue on the .lefendauts' sttitemcnt of defence herein. 
 
 J)(,livere.l and filed th\^ Tth day of Fobrunvy, 1S90, by Hunit^ P., Elliott, of tho City of London, 
 jilaintitl's solicitor. 
 
 6 
 
 STATEMENT OF DEFENCE. 
 
 By Statntc-Consolidated Statutes of Canada, Chapter 60, Section 83; also the Railway Act 51, 
 Victoria Chapter 29, Section 287 ; both public acts. 
 
 The defendants say that they are not guilty as in the plaintKT's statement of claim alleged. 
 
 The defendants further say that the said alleged injury and damage complained of in the state- 
 ment of clain> was caused by the want of care and attention of the plaintiH; and that by the exercise 
 of reasonable care and caution the plaintifl' could have avoided the same. 
 
 Delivered this 3rd day of February, 1890, by John Bell, of the City of Belleville, in the County 
 of Hastings, Solicitor for the defendants. 
 
 

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TRIAL. 
 
 BEFOKE HIS IIONOJJ FREDERICK DAVIS, JUNIOR COUNTY COURT JU^CE, 
 
 AND A JURY. 
 
 H. B. Elliot, .... 
 E. Mehkdith, (I C, and It. M. MEitiiniTii, 
 
 Counsel for tlio riaiiitiit'. 
 Counsel for Defendants. 
 
 EVIDENCE. 
 
 Hit 
 
 SILAS G. MOORE, Uie iiluiutilf, liaviii.t; l)ei'ii diUy .swdiii, deposed as follows : — 
 To Mu. Elliot : 
 
 t^). — You are tlie jilaintiif ' A. — Yes, sir. 
 10 (.^. — You reside ill the city of London;' A. — Yes, sir. 
 
 Q. — Have re.sided for how many years ' A.— About I'D. 
 
 (). — You remember the I'nd of October la.st ' A. — I do, well. 
 
 Q. — Where were you tliat day ' A. — lielinoiit. 
 
 ()■ — You went from town here .^ A. — I did : 1 went tlirouu'h in" the forenoon. 
 
 Q.—Drive ' A.— 1 .lid. 
 
 Q. — Whose traji was it ! A. — It belonged to McNames' livery. 
 
 Q.— Tile traji and horse ' A,— Yes. 
 
 Q.— What did you go to Ijelriiont f(!r f A. — Fair day there. 
 
 Q.— To .see the Fair? A. — When 1 went tlierc I went there witii tlu' expectation of goinu on a 
 20 gate, l)ul 1 was late when I got there, and tiiey ]ait aiioliier man on. 
 
 Q. — Had you been previously engaged tiiat way ^ .\. — Yes. 
 
 (i>. — Former yefU's ? A. — Yes. 
 
 Q.— Wiiat time did yoii leave J.iiere to e.Huc liome ^ A.— In tiie iKngiiiioriiood of live o'clock, 
 
 Q.— Was there anybody with you ;- A.—Not going out ; Daniel Stewart came with me coming 
 baci\. 
 
 Q. — He was coming to London and you gave iiim a lift .' A. — -Yes 
 
 Q. — That was about five o'clock ? A. — Five wlien we left there. 
 
 0. — Do you rememlier a]i]iroacliiug Maitland .street > A. — Yu.s, sir, I do. 
 

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Q -Do vou recollect what time that was ' A.-We calculated it was about the time the Michigan 
 Central would come on the I'urt Stanley track. That was one reason why we turned oft on Ma.tland 
 
 street. i • i ^ 
 
 Q.— About what time was that ? A.— Between half-past seven and eight. 
 
 Q.— In the neighborhood uf eight o'clock ;■ A.— Ye.s. 
 
 (I —You left tiio Haniilton Koad and turned north on Maitland street >. A.— Yes. 
 Q._When you aj-proached the railway track did you see anything '. A.-l did not ; it came 
 along very .luietly, and of course there are a good many tracks there. , , ,-, , 
 
 Q_I)o you know how many ^ A.-No, I know there are tracks on both sides of the Orand 
 10 Trunk Station, and then they run cars in there next the Massey place. 
 
 Q.-Are there a dozen tracks ( A.-l would say, take the both tracks, I would say six or eight 
 
 may be more. 
 
 Q.— Both sides of what ( A.— Tiie tracks you would have to cross on Maitland street. 
 
 (j._Both sides of this old station ? A.— Yes. 
 
 Q.— At all events, coming at Maitland street to get across the railway, you think you would have 
 to cross six or eight ? A.— Yes, I should think it would be all of that. 
 
 Q.— You approached the tracks ? A.— Yes. 
 
 Q.-I)id you cross any of them ? A.— We crossed past it all and we got on the mam line, that 
 is on the tiacks north of the old Grand Trunk Station. 
 20 Q.— Then what occnned .'' A.— We saw no watchman there, or no lights or anything, and I sup 
 
 posed of course everything was safe. 
 
 Q._Y„u saw no watchman or any lights and you sui.i)0sed the tracks were clear \ A.— 1 did, 
 and the lirst thing that 1 saw was the car backing up i)ist the Hag shanty. 
 
 Q.— The first thing you saw ? A.— The first thing I heard or saw, and that was just about the 
 time the horse made a Spring. That is the time I supposed the horse seen it and he made a spring. I 
 might have hit him there with the whip for all 1 know. I don't know whether 1 did or not, because 
 
 they were so close on to it. i • i 
 
 Q.— How far was the horse from this track on which this car came ? A.— It was done so quick 
 I could hardly tell. I know the horse did not get a scratch on him, but it tore the buggy all into 
 
 30 mince-meat. .. , , . .. 
 
 Q _\Vas the horse clo.se up '. A.— He must have been close up, because he was attached to the 
 
 '"''(j.—Did you see this flagman's station ( A.— As this car backed up was the lirst notice I took of 
 the car at all, the first time I saw the car. 
 
 Q._l)id yo" see the flagman's station there? A.— I saw it there just at the .same time that I 
 
 saw the car. ^ 
 
 Q._Did that intercejtt the view ? Could you have seen the train sooner if this flagman s station 
 had not been there '. A.— I could have seen the train earlier if there had not been some obstruction 
 
 east of that. 
 40 Q.— Do you know what this obstruction was i A.— I could not tell whether it was freight cars or 
 
 what it was. I know freight cars stand in there. 
 
 g.— There was something ? A.—There was something that we did not see ; no light, nor no train 
 
 or no signal. 
 
 Q._Could not see anything until it appeared on the crossing '. A.— Until it backed right past this 
 
 flag shanty. 
 
iG Michigan 
 III Miiitlaiul 
 
 ot ; it came 
 r tlie (ivaiul 
 six or eight 
 
 would have 
 
 ,iii line, that 
 
 ;, and I sup 
 
 A.— I did, 
 
 st about the 
 a spring. I 
 not, because 
 
 one so quick 
 iiggy all into 
 
 cached to the 
 
 ice I took of 
 
 time that 1 
 
 man's station 
 ■ obstruction 
 
 "reight cars or 
 
 , nor no train 
 
 ■ight past this 
 
 
 
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 Q. — You were poiniii<^ nortli ? A. — Yfs. 
 
 g — What orcuru'd alter tlie lior.se j^ave a stuit .' A. Tlie lioraii maclu ii jiiiiip ami llio first thing 
 1 knew I was iiickiiij,' myself up, ami just ns I wns jticking myself up 1 saw the man lift Mr. Stewart 
 He hatl a lamp in his liami, that man, wh.u'ver In: was, ami the horse was gone. At this time I got up 
 oil to my fiu't and I think the first (i\iestion that was asked mo was; Wa.s 1 hurt had. 
 
 Q_Which side of tlui track were you on '. A. -I was on the north side, and 1 think I was over 
 
 every rail. 
 
 [), — Was Stewart on the north side ? A. — Ye,'<. 
 
 (^).— Whieli side was the eonveyance on ? A.— The fir.st time I seen it it was on the south .side of 
 10 the track. That was the next morning ; 1 did not see the buggy that night at all. 
 
 Q._V\:i,en you got up did yon know that you were injured ? A. -I did not know at the time. 
 The fir.'it tiling I .seen, I think, if I am not mistaken, some young fellow said "your hand is hurt." It 
 stunned me, so 1 looked at it. There was a sear there. It was (Mit and laid over across the finger, but 
 I did not know that 1 was jammed up in the shoidder at this time, nor in tiie back. And the second 
 dav afterwards 1 was so lame that 1 could hardly move. That is the day 1 went down to see Mr. 
 Larmonr. He .said he would look into it. 
 
 Q-_Yon felt the injviries afterwards :' A. — 1 did. 
 
 Q_When ? A.— I felt them the next day, that was on the third. 1 felt them still in my back 
 on the third, and I was u.sing the liniment that I had used for rheumatism on them. 
 20 g.— Have you felt the ellects of that since t A.— Yes, I have. 
 
 Q —Where? A —On this shoulder and down the right arm. It is nervousness most now. 
 
 Q —You are a victim of rheumatism { A.— I am, in my feet and ankles. I have been since 1874. 
 
 Q.— How old are you ;• A.— Gli jiast; I was born in 1X28, J3rd July. 
 
 Q —Always used the .stick ? A.— I have went on crutclu's or a stick since 1H74. 
 
 {}. — Yon did not get any doctor >. A. — No, sir; 1 did not. 
 
 Q. — You are an old sohlier they tell me ^ A. — Yes, sir. 
 
 Q.— Sort of a ilnctor yourself '. A.— I am ; 1 have had to doctor myself a good deal, I tell you. 
 
 Q._Tliere is no doubt you received these injuries ' A.— 1 reeeiveil tiieiii. There is no doubt 
 
 al)out that at all. 
 150 Q. — What became of this buggy? A. — The buggy was left there on the track. 1 could not 
 
 exactly tell you how long, but I saw Mr. Larmonr one day and he siiys 
 
 (^). Nevermind what he said; was it in cniiseiiuenee of what he suid it was taken away? 
 
 A.— Ye,s. 
 
 Q. — How long after the accident ' \. — I i)iesunie it was three la lour week.s. 
 
 Q, — You .say yon did not .see it lliat night :' A. — No. 
 
 Q._l)id you see it the next day ' A —1 saw it the next morning. 
 
 Q. — What sort of shajie was it in liieii :' A. — Tiie two front wiieels weiv broken ; one of them, 1 
 think, had not a spoke left in it, and 1 do not know wheliier the otiier had or not. 
 
 Q. — Wliat was the matter with the hind wheels '. \. — One of them broke and the axle sja'ang. 
 
 4.0 n. Was it a toj) buggy : A.— To]i all broke, and tiie dusiiboard and th(> bottom. You may as 
 
 well .say it was a total wreck. 
 
 Q. — Yon did take it to the wagon niaiiufactcay ? A. — Took it to William Thompson. 
 
 Q, — 1 believe he told you it was not worth re]iairing ' A. — That is exactly what William Thomp- 
 son told me at the time. 
 
10 first thing 
 Mr. Stowait 
 me 1 ^'i)t up 
 
 I wiiH over 
 
 iouth side of 
 
 at the time. 
 is hurt." It 
 e finger, but 
 (I the second 
 'n to see Mr. 
 
 II my back 
 
 ;t now, 
 
 n since 1874. 
 
 I tell you. 
 e is no doubt 
 
 1 oould iiol 
 
 ;aken awav ? 
 
 ne of tlu'iii, 1 
 
 iixle si^'unf,'. 
 You may as 
 
 lliiun Thoniii- 
 
 .* 
 
 .Z\il^^LtL^ <xQ^$^~i^<^*^ A-^A^^>jL Ayu. c-64.^»^^^*-«>«^ 
 
 ^-''hJLyCJiiAy^ «j» -^ \J dw iyO<^i^^ 7?CtN_«_^c^<_^ c-.4-i7Ttit..<y:_ -<5^i>-t-t/i,^_><. -^ 
 
 jCiJU,^ io /^^i^ /ixi^xO- 
 
 G.e.^«u_-<«^.. K_'<fYv_r(_^ /<KJZ ^<X.<J^^ C<t.^\AJa C'^^t-^-^ii 
 
 ^^v^^^, ^ 6l^ fct-^/^i c^..^^— (^g^ti. iQ^'k^r^.\.\^4Ky^ ^^^-^Jvvu (\^ if^li^<i.t^eK 
 
 
 
 
 ^ 
 
9 
 
 Mb. Mkhkuitii objocts. 
 
 g.-- What iM.cunu. ..f tl.o I.oiho thai i.iyl.l ■! A.-Tl.o horso was cuughl o!. the corner of Muitk.ul 
 
 ami York. . . ,. • . i • i 
 
 g.-Tlmt woul.l \m just llu- next block ^ A.-Ycs ; I think hi.s im.nc was Mann caught hnn and 
 
 tho youni; nmn linrnj^lit liini back to mi' \v\\v\v we v>viv. 
 
 g.—Neur the niilroiid ' A— V«!h. 
 
 Q.— Was ho taken to tlu- .stablu f A.— 1 took the ho;.so from there to the stable myself. 
 
 Q_Wus Mr. McNiimcH .it tlm Nliibic > A.— IK' was tluMo iit the timt' I got tlierc. 
 
 g _At wlmt \mv, wcv yun .liiviuK wh.m you a|.i.r.Mic.hu.l this niilro.i.1 > A.— We were driving 
 1(1 slow, and diivin^shMV all day, fnmi there and back, which Mr. McNames will tell you; the horse was 
 i)erfcctly cool when I «ot him to the barn. „ . • 
 
 (^.—Didynii stoji on y.mr way from IVlmont ^ A.-Yes, we stoi.,.ed at James Homistei i and 
 Mr. Stewart thinks we stiipiuHl at 
 
 Q —Never mind what ho thinks, you stopped there i A.— Yos. 
 
 g._I)id you ,stoi. anywhere elsi. f A.-We .stopi-ed at Nilestown and tried the horse with ...ter. 
 
 g.__IJi(l yuu drive a moderate pace t A. — Yes, all the time. 
 
 Cuoss-K.XAMiM'.ii itv Mu. K. Mekkiutii :— 
 
 (,,),-What is your occupation ? A.-l am a^'ent for John Klliott & Son. sitting in tho .show room 
 
 down here. - * v • 
 
 20 g.— Were you engaged in that business at the time of the accident ? A.— No, sir. 
 
 g._What business were you in then ? A — Nothinj^ at all particularly. 
 g!— What dill you say the date of the accident was ? A— The ni^dit of the 2nd October. 
 g._Yon were doing nothing up to what time f A.— Doing nothing only the.se little odd jobs, 
 
 and get collecting, and like that. 
 
 g._\Vheii did you get the employment of sitting in Mr. Elliott's place? A.— If I am not 
 
 mistaken it was the 2'.itli January. 
 
 g._You were out to Helmont that day i A.— Yes, sir. 
 
 g,- At the fair that day ? A.— Yes, sir. 
 
 g.— Drinking ? A.-! do not think 1 could drink much because there was none on the ground. 
 30 tj,_Wero you f A.— No, I was not. 
 
 g.— Had you l)een ilrinking at all f A.— I do not know whether I had a drink in Belmont or 
 not. I would not swoar whellu'r 1 had or not. 
 
 (^._Up t<j the time of the accident how many glasses had you on that day f A.— I had two 
 
 glasses. 
 
 g_\V ill you swear you had no more ' A.— 1 will swear 1 had 'wo and I do not know but 1 
 
 had one in Helmonl. 
 
 g._Not any more < A.— No, n<i more that I can recollect. 
 
 g. Thre(! glasses of liiiuor would not make you intoxicated ' A.— No, sir. 
 
 g._No doubt about that < A. — Well, 1 know it won't. 
 40 g. — You were not the wor.se of lif[Uor ' A. — No, sir. 
 
 g._Neitliei at the time of apiiroaching the train or afterwards I A.— No, sir, not oven when I 
 
 got to the barn. 
 
 g._If tlKM,i"op!n say t) re was a strong smell of liiiuov on yon, how do you account for that ;' 
 A.— The la.9t l^our i ha l -.iis at James Ilomister's. There was two glasses there. 
 
[• (if Muitliuul 
 u^ht liiiii iinil 
 
 »elf. 
 
 weru driving 
 III! luji'so was 
 
 [omistei , ami 
 lU with .vatcr. 
 
 iio show room 
 
 obnr. 
 
 ittlo 0(1(1 jobs, 
 
 -If I am iKjt 
 
 the ground, 
 in Belmont or 
 V. — I had two 
 )t know but 1 
 
 , even when I 
 )unt for that :" 
 
 4: %^T'^'^^il^l5^^^^'/^^iXl^^^ -.--I 
 
 
 
 
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 ^.l/< 
 
 
 ^^<2A^-C^-<r'^/'^^ 
 
 
 . -/s^^"-^ 
 
 
10 
 
 Q.— That was liow Intig before tlio af<'i<lent? A.— Just drove from Honiister's tliere. 
 
 Q._T!»ese two glasses kiiul of livened you up > A.— I do not think it. 
 
 Q.— No etfect on Moore at all ? A.— No, no more than it is on you to-day. 
 
 Q,_Dia not make you feel good ? A.— No. 
 
 t^._\Va3 it whiskey ? A.— I think it was whiskey ; good whiskey too. 
 
 Q.—rretty good horn eacli time f A.— It was not a l)ig horn ; I do not take them. 
 
 (^)._How many horns had Stewart ? A.— He had the same at Holuisters that I had. 
 
 Q._ Stewart jierfectly sober, too ? A.— Yes, I can vouch for it. 
 
 Q._Eveu if you were tight Stewart was sober { A.— Yes, sn', Stewart was sober if I was tiglit. 
 10 Q— After the accident they told me you di.i not know who was with you i A.— I might have 
 
 asked " where is the man that was with me." 
 
 Q._Did they ask you who was the man that was with you, and diil you say you did not know ? 
 A— No, I never said that ; they might have asked where was the man. 
 
 Q.L-Do you recollect benig asked who was the man that was with you, and you saying you 
 did not know ? A.— No such qmstion ever asked me ; they might have asked " where " the man was. 
 
 Q._you said you did not know ^ A.— I did not kn(jw at the time. 
 
 Q._It was not that you >vere in that ^^tate that you were obhvious to what had happened ? A.— 
 
 From being tight ? 
 
 Q,_From the worse of li(iuor > A.— No, sir, I was stunned a little. 
 20 Q.— 1 am told by Dr. Moove that Stewart was very much the worse of li(iuor; what do you say to 
 
 that ? Dr. Moore is a respectable man ^ A.— Ye.s, sir, I went for him myself for Mr. Stewart. 
 
 Q _l)o you still say he was sober ^ A.— 1 say he was sober as far as I seen. I oidy seen him 
 drinking what he drank with me. 
 
 Q._\Vhat time in the evening did this iiappen ? A.— I .sliould calculate it was in the neighbor- 
 hood of a (quarter to eight. 
 
 Q, — You were erossing at Maitland .street ? A. — Yes. 
 
 Q, You cannot tell us how many tracks there are that you crossed before you say the accident 
 
 happened ? A.— I never counted them. 
 
 Q. — The rig was a covered buggy ! A.— t'overed rig. 
 30 Q. — Coming along were you talking to each ntlier ' A. — We we jjj^ _ 
 
 Q_ In crossing the track weie you talking to each other ' A.— \Vc> migiit have s id .something 
 
 or other. 
 
 (,^)._Wero you conversing with each oilier (;rossing the track :' A.— We were talking right along, 
 
 and if I am not niistalcen .Mr. Stewart says 
 
 Q__Were you talking as you wine crossing the track, one to the nllier ' A —I presume we were. 
 
 (^), Do you recollect the subjects you were talking about ' \. — Xo, not on the track, I cannot. 
 
 I can before we got there. 1 do not know whrlher we got there with that subjc'ct or not. 
 
 Q, You were .stUl talking as you were crossing these tracks ' A. — We might have been. I do 
 
 not know whether we were or not. 
 40 Q. — Which way were you looking '. A. — Uight straiglit aiiead all the limi'. 
 
 Q. Which way were you looking ? A. — I suj)pose I was looking to the north; 1 was not looking 
 
 any other way. 
 
 (J. In pvo.ssinu in this covered rig you liad your eyes simjjly straight to the north. A. — 1 had my 
 
 eyes straight to the north. It was a covt^red buggy with thf top half taken down. 
 
 "•^^ ( 
 
1. 
 
 was tiglit. 
 -I might have 
 
 id not know ? 
 
 ^u saying you 
 tlie man was. 
 
 jened ? A. — 
 
 do you say to 
 ewavt. 
 only seen him 
 
 the neighbor- 
 
 ly the accident 
 
 < id sonietliing 
 
 ng right along, 
 
 sume we were, 
 rack, I cainiot. 
 
 i' hi'cn. I do 
 
 wa>i not looking 
 A. — I had niv 
 
 ^sj^ /AA_^-. 
 
 
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 uU< /^t.c^ £4U(^?fc" ^^ci^ ^^^^.^nUu(M^k//^^MZ 
 
 t^A^ J^LC^ Ctji^ l^-*^ ^1^0^ CU^u^ ^i^C^ C^t<^.-*^^<x^-^ V . 
 
 ^#TA^^#^ Fr\^4^^ ^v^^^ , 
 
A._Nothiii;4 more than our bug<,y would have 
 A.— 1 do not know that there was anythuigto 
 
 11 
 
 , •, , > \ ^ ,lo not think there was any sides on it; I do no', think the 
 Q._Wero the sides down ' A. — I uo noi unuiv uru. j 
 
 wings were on it. j ,^,^^ , ,^„^ ^^jj^^st positive. 
 
 Q.-Are yon sure about that / .A'-^"' _^^^" " ^^ ' j „^, ,,, ,,,re on the trot and the 
 
 (J —Were you on a trot m crossnig the tiack . A. xts, p.esu 
 
 hoTse lumped. . ,. • , ^ 
 
 n Tt WIS dark ? A.— Tt was dark tliat time ot night. 
 *!!; ™ S in It tolil, ' A.-Cc,,,inly ; any n.«n conld h»o ,c,,n a lamp .f .1 had 
 
 '"°°o'"u,va.,h,fc ,„n«v». «»«„., 0,.... track, «n,l talking to Stewart and l„A,„s at the »„,c 
 10 tinrc ,':^,e ::«: A-1 wa, l„.ki„ the wdth of t„„ *.c. t. »» there wa, no e.., ,„ the way. 
 
 t^:Z:';S::^L^^Z .0.., a -That ,™n,d he „e,.tl,,the «,dth „nh, 
 """Q-Yon were «,«». a trot then, and at the time the aceident happened yonr horse .n»de a spring ! 
 " -^lu ::» iS:5t!':' r ;;; tl-^lty . a.-, can,.ot ,«col.eet that-whethe, the wind 
 
 was blowing or not. 
 
 Q.— There was nothing to iirevent your iiearing :' 
 
 made. 
 00 Q —There was nolhing to prevent your hearing . 
 
 - P-ent » h.an,.g.^_ .-arn.,.. »^^ ';;;■*'.:;:;■-» yon wonld he ahle ., hear anything .hat wa, 
 
 Pomino alon- ^ A.-You might and you might not as far as that is concerned. , • , 
 
 S-You know what noi'e your buggy made ? A.-No, cannot ,u,te tell how much noise a 
 
 buggy inakes. ^^^^ ^^^^ ^^^._^^^ .^ ^^^^^ ^^ ^^.^^ ^^ .^^^ ^^^^, ^^ ^^^^^^ ^^^ ^^, .^„, ^^^^,,, ^,.,,,,i„„ t, 
 
 track^a da^ iht without any light there, looking simply to the north < A.-l think it is a prudent 
 ^^^^"\^:;;Sh:;fi:r':;;ulent thi,, to d., . A.^-H l did ,... think it was prude,. I would 
 
 30 not have done it. 
 
 Q._You saw there was no watchman there f A.— les. 
 —You saw that as you were crossing the track ;' A.— Yes. 
 
 Q -It was a dark ni^ht and you slill k..pt ,iii with your trot ^ A.-I presume ,t was a trot 
 Q-I)o vou think, as a man of experience an.l a man of age, and a man that has been through the 
 American War, that that was a prudent thing to do, and it is a thing >ou would have done if you luul 
 been free from litp.or ? A.-l sli.,uld iiave done the same thing if 1 saw there was no watchman. 
 
 o" Yon knew as a matter of fact, y.m have lived in this city, that trains are .shunfng all the time 
 acrossthis crossing ^ A.--I know thai, aiul 1 know that they have got a watchman on the street, too- 
 (, -You knew the watchman was not here that night? A.— 1 dul not. 
 40 i- You saw the watchman's shanty was dark ! A.-I did not know it till after. 1 he watch- 
 
 inan's'shanty is between tiic main line ami the old Grand Trunk Station. 
 O —Which .side of the track is it upon ' A. -On the east siiie. 
 
 0_0n the north or south si,l.- ..f the track ' >K.-<)n tlio south si.l.. of the man, hue. 
 Q.-Then you would be s.ane distance from the track wIumv you were struck, antl y.Ai wt.uld liave 
 seen tlic shantv before you we,v struck ' A.-Wc were not close enough I., it. 
 
1.'. think the 
 
 itive. 
 trot and the 
 
 inp if it had 
 
 1/ at the same 
 I the way. 
 
 width of the 
 
 ade a spring ? 
 
 ether the wind 
 
 ;y wouhl have 
 
 xs anything to 
 
 thing that was 
 
 much noise a 
 
 crossing tliese 
 it is a prudent 
 
 ■udent I would 
 
 ,vas a trot, 
 
 jL'U through tlui 
 
 lone if you had 
 
 ivatchnuui. 
 
 ing all tlie time 
 
 I the street, too 
 
 J. Tlie watch- 
 
 Hue. 
 
 you would have 
 
 
 
 
 \^ 
 
 rco 
 
 {yL-^-a^t^eKJ 
 
 ^i.^_4f^jL.'t^ ^*~tiuL ^v'-.c-^j /^ <itcZ»!I«t. tt^\^^-Cy^ //tf-^t-v^y--*^ c^^tL^^t^ c_-<u-a_« ti^»^ 
 
12 
 
 Q. — You saw as you were coming along that tliere was no light in the watchman's shanty? A, — 
 No, there was no light in the watchman's slianty. 
 
 Q. — You saw no watchman there '. A. — There was none tliere. 
 
 Q. — Observing that, why did you contiime your trot ' A. — Simply because I thought there was 
 no"cars on the track or there would be a watchman tliere. 
 
 Q. — Then it boils it down to this: you continued ujion a trdt for tiie sim]ile reason you saw there 
 was no watchman there ? A. — If I was on a trot. 
 
 Q.— Simply because you saw no watchman on the track you said to yourself the thing was safe ? 
 A.— That is the way I looked at it. 
 10 Q. — And simply continued on a trot and looking to the noith ? A, — I was looking the width of 
 
 the street to the north. 
 
 Q. — Did you strike your horse with the whip before you were struck ? A. — I cannot tell you 
 whether I struck him at all or not. I say I presume I struck him ; he made a spring first, and when 
 I saw the train I presume I struck him ; if 1 tiid not ho would have been cut in two. 
 
 Q. — Do you recollect whether you .struck your horse with the wlup or not before the accident 
 happened ? A. — I could not swear. 
 
 Q. — Although you can say you iieard no noi.se ? A. — I heard no noise or any signals. 
 
 Q. — How far would you be south from where the accident happened when you say the cars 
 approached ? A. — 1 tliink the horse was direct on the line that the train was backing on ; I think he 
 20 was right on that side track lliat tiiey were backing in on before I saw tiie cars at all. 
 
 Q —When you saw the cars how far east were they fnjm y(ju '. A. — I coukl not tell the number 
 of feet. 
 
 Q. — Twenty feet? A. — Ten or fifteen, somewhere there. 
 
 Q. — Then you saw these, cars backing down ten or fifteen feet east from you ? A. — It might have 
 been. 
 
 Q. — Did you attempt to pull your horse back;' A. — I could not pull him back for the simple 
 reason that he jum]>ed. 
 
 Q. — Did you attempt to [ndl him back f A. — I do not know whether I did oi not ; I do not 
 know but I did. 
 ;W Q. — The train was backing down very slowly >. A. — I do not know as to that ; I was not on it. 
 
 Q. — You saw tr coming down '. A — You stand and hjok at the tail end of a train you cannot tell 
 how fast it is going. 
 
 Q. — You could tell whesher it was going fast ur not ? A. — If it was standing still you could. 
 
 Q. — I am told one of the men liiat was on the train jum]ied off and took your liorse by the head ? 
 A. — He never done it. 
 
 Q.— And that you urged your horse on ' A. — I say there was nn man tonk that horse by the bit 
 that I seen. 
 
 <i>. — Will you undertake to .say that before you reached liu' track uimiu wliicli tiic train was that 
 one of the men did not come up to you and catch your horse by the head and you still urged the hor.se 
 40 on I. A. — I never seen nor never heard him. 
 
 y. — You won't say how that ,vas ? A. — I say if he did I never seen or heard him, and if a man 
 caught a horse by the head that I was driving I would see him. 
 
 <}. — Will you say it did not happen, tliat this man did not catcli y(Uii liorse by the head before it 
 got u]ion that track and that you still urged your liorse on; will you say that did not happen ? A. — 
 I do not believe it did. I will say this, if it did I never .saw and never felt any jog in the hor.se, 
 
 
 % 
 
mty ? A, — 
 
 ht there was 
 
 oil saw there 
 
 ug was safe ? 
 
 the width of 
 
 mot tell you 
 st, and when 
 
 the accident 
 
 say the cars 
 ; I think he 
 
 I the number 
 
 t might have 
 
 or the simple 
 
 lot ; I tlo not 
 
 vas not on it. 
 )U cannot toll 
 
 lU could. 
 
 by the head ? 
 
 .'se l)y the bit, 
 
 rain was tliaL 
 ■ged the horse 
 
 and if a man 
 
 head before it 
 |i|ien ? A. — 
 horse, 
 
 
 C/' 
 
 ■^ Mt-^^^^ /ci^^'^^^'-i: ^^'^i^^^^^^^*" 
 
 
 
 ^yf/ 
 
 
 
 -l-x <_«. i. 
 
 
 
 
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 ^ — y*'*^ ^c ^^^C^^i^^ji./y^^M^^ ~^^t€^\ 
 
13 
 
 Q When you were at least fifteen feet from the track did you hear a man shout as loud as he 
 
 could, to be heard a block off, for you to be careful ? A. — I did not. 
 
 Q. That thing did not happen (* A.— I do not know, if it did I did not hear it. 
 
 g. I have a witness here that was a block away that lieard it at that distance, what do you say 
 
 to that ? A.— I did not hear it. 
 
 Q.— If it could lie jieard a block away it coulii be heard by you. Will you undertake to say that 
 did not happen at least ten or fifteen feet from where you were approacliing that crossing 1 Will you 
 undertake to say that there was not a man shouting out as loud as he could, and so loud that it could bo 
 heard" a block away by Mr. Heanian, a wood dealer? A. — [ will undertake to say Mr. Heaman was not 
 10 a block, he was only across the track in his office ; he told nu; like this, he was sitting in his oflice and 
 he heard a crash and hallooing, 
 
 Q.— Did you liear any hallooing ? A.— I did not. 
 
 Q. Was it for the reason that you were talking to Stewart ? A.— No, 1 think it was the noise of 
 
 the buggy, if anything, rattling over the tracks. 
 
 Q. — If you had been walking there would not have been this noise ? A. — No. 
 
 Q. — A prudent man, you chose to drive over this railway on a dark night at a trot f A. — A man 
 gets over the track as fast as he can. 
 
 Q.— You think it is a jirudent thing for a man to trot over it ? A. — Yes, most all do. 
 
 Q. — The rumbling of this train makes con.siderable noise ? A.— It might make some. 
 20 Q. — Don't you know the rumbling of a train makes considerable noise ' A. —It makes some. 
 
 Q. — You did not even hear tlio rumbling of tlie train '. A. — I did not 
 
 Q. — Do you mean to say if you had been paying the slightest attention you would have heard the 
 sixteen cars and the engine. That would make considerable noise ? A. — It would make considerable 
 
 noise. 
 
 Q, — Could be heard much better at night than in the day ? A — I do nut know that. 
 
 Q. — Do you mean to say you did not hear the rumbling of tliis train coming down ? A. — -I did 
 not hear any noise or anything till I saw the tail end of this car 
 
 Q. — If you had been paying the slightest attention is there any reason in the world why you din 
 not hear the rumbling of that train ( A.— I took it for granted everything was all right because there 
 30 was no watchman there. 
 
 Q, — You look it for granted and paid no attention and that is the reasca you did not hear the 
 rumbling of the train ? A.^ — That is the way you [lut it. 
 
 Q. — You took it for granted, and thine being no watchman there, that everything was safe, and you 
 paid no attention ? A. — I did pay attention to get across the road saf(!. 
 
 C^. —You said you paid no attention and that is the reason you did not bear the rumbling of the 
 train, is that so ? I want to get your own huiiest, fair statement i A. — That is all right. I told it to 
 you as plain as the English language can tell yuu. 
 
 (^). — Is that so, you took it for granted everytiiing was all riglit, and you were not li.stening for any 
 noise ? A. — I did not tell yo>i 1 was not listening for any iioi.se. 
 40 Q. — Not seeing the watcliman there you were paying no attention, thinking everything was safe '. 
 
 A. — That is so. 
 
 {}. — The watchman not being there you were paying no attention, and took it for granted every- 
 thing was safe. Now, do not you admit you were feeling a little merry ' A. — I want you to 
 distinctly understand I was sober. 
 
 (^. — I am putting it a little more modui'ate, a little glib ' A,— -No, I was not glilj. 
 
t a^ loud as he 
 
 i^hat do you say 
 
 vas the noise of 
 
 ? A. — A man 
 
 
 '/ 
 
 *t 
 
 
 C.^'iX.^^CyCu^Q^^jL tf-t^ 
 
 
 iJ^~H'\U'U^/^ 
 
 
 
 ,t*,-HA_;e->0 
 
 ^^- 
 
 ,^ Ct-^"^' 
 
 C^^lJC.*~=> 
 
 
 
 
 
 
14 
 
 Q. — Ui)on that occasion yim were lu-rfcctly sohvY ? A —Yes. 
 
 Q „_Ai'e you in the liahit ol' getting oil' «icCiisioiially ! A. — Did you ever see me oflV I was 
 sober, I tell you. 
 
 Q —Are you in the hahit of s^cttiuf; f)ir occasionally ? A.— No, I am not. 
 Q, — Sometimes f A. — No, not .sometimes eitiier. 
 
 Q. — Once (' A.— I got full once. 
 
 Q._X'pon this night it was not the occasion ? A, — No, I was sober that night. 
 
 Q. — Were vou in any otlier taverns in Melmoiit ? A. — Yes, I stop]i(iti at .lack Charles'. 
 
 Q. — Good deal of drinking going on at fair time ( A. — If there was it did not intefere with me 
 10 any. 
 
 Q _. You had hosts of friends there ? A. — Tf T had T did not use them. 
 
 Q. — Did tlioy use you ? A. — I could not find any fault with tliem. 
 
 Q._Did they u.se you ? A.— What do you mean ? 
 
 Q, — By treating you ? A. — No. 
 
 Q — Old friends ; one would think that would lie the occasion of n little rejoicing i A. — I do not 
 know that they are old friends of mint; there any more than any where else. 
 
 Q.— Who owneil the buggy ? A.— Mr. McNames. 
 
 Q.— Did you speak to Mr. McNanies alwut bringing any suit for the buggy ? A. — I think I did ; 
 I am not sure, but I think I did. He put in his valuation to me. 
 20 i). — Did you speak to him at all about bringing a suit against the Company for the buggy ? A. — 
 
 I think I did. 
 
 Q, — Will you swear you did, because I have got yoiu' evidence liiue :* A. — 1 do not know that the 
 question was asked me. 
 
 Q — Did you speak to him ^ A. — 1 think it was talked of before he went away. 
 
 (}. — Will you swear whether it was or not f Did he authorize you to bring any suit for the 
 buggy i* A. — Not for himself, he did not. He holds me for the buggy. 
 
 Q. — He could not collect anything out of you, talking fairly and S([uarely f A — I know I am a 
 poor man. 
 
 Q. — That amount coiild not be colie(;ted from you? A. — I do not know whether it could or not. 
 30 Q. — You have not any property to nurke it out of? A. — No. 
 
 Q. — You are unfortunately subject to rlieum.atism ^ A. — 1 have had riieunuUism ; got it yet. 
 
 Q — Had it in the hands ? A. — 1 hail it in tlie hands ; 1 got rid of it in my iiands twelve or thirteen 
 years ago. It does nf)t bother me now ; has not lor a number of years. 
 
 Q. — Which shouMer was it that tiiis funny feeling was in ? A. — Right shoulder. 
 
 Q.— And the back ? A.—It got all right. 
 
 (.}. — Any rheumatism in the riuht shoulder ' A. — Never hdt tiial slmulilcr uut of jilace or feeling 
 wrong till after the accident. 
 
 Q. — (^)uite sure tliere was no riieumatism there f A — I am ; 1 ou^ht to know if tliere was. 
 
 Q — Never had this tickling sensation f A. — -Never had it till then. 
 40 Q — This tickling sensation has been botliering you ever since the accident i A. — Yes, sir. 
 
 Q. — Where is it ? A. — It is in my hand. 
 
 Q. — There is rheumati.sm in your hand now ' A — No, .sir. 
 
 Q. — You said in the e.vainination that you did not know whetlu'r it wiis rluumatism or the accident f 
 A. — -I said it might be rheumatism, but if it was rheumatism it never Ijulhered nu- liefore iuithat 
 .shoulder. 
 
.! ofl' ? I was 
 
 lies. 
 
 efeio witli mc 
 
 A. — I do not 
 
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 l)Ug';y ? A.— 
 
 know that the 
 
 iiy suit for the 
 
 I know I am a 
 
 t coidd or not. 
 
 1,'ot it yet. 
 elve or thirteen 
 
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 ir tlic accident f 
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 20 
 
 g.~You wore not quite smv whether it was the rhomimti-stn ..r th.i tickling seiisfttion ' A -The 
 
 jar is what cauHed it 
 
 (^ __\Vfts there any mark at all n\M\ the shouliler f' A —No. 
 
 Q — Any mark upon the back f A —No. 
 
 Q.-Altlu.u«h this ticklinj^ sensation has been goin- on liow Ion. ? A.-lhree or lour day.s after 
 
 that the i)ain commenced lcavin<^ my back. , .. • u i i' 
 
 g.-It has been -oing ">' ^novc or less ever .since ' A.-Yes, nervousness of this h.tid and arm. 
 
 Q.— Did you go to the doctor? A.— I did not. , . . . , 
 
 Q.- - If you thon-ht you had lecvived any injury wonl ' not y<.u have gone to the doctor / A.-l 
 10 do not think 1 shoukfns i<mg as llu-re was no bones broken, , ,. , . n • i i f 'f 
 
 Q -Then you did not think much of this tickling sensation ? A.-l did not tlutds much ot it. 
 
 Q -You did not "o to tlu^ doctor fur that reason, and you were not nuite sure whether the tickling 
 sen.sation was the residt of the rheumatism or the shock ? A.-l am quite satisfied it was not 
 rheumntism ; it never acted like rheumatism. 
 
 Q.-How much money do you think ^u mid stoj. tiie tickling .sensation ? A.— T have not any idea. 
 
 Q —Would about i<l cure that ' A.— 1 <lo not think it. 
 
 (^ — You might have got cured by a doctor for $1 i You never went near a doctor so as he would 
 be able to state to the juiy what the injury was, if there was such a thing f A.-l did not go to a 
 doctor at all; I have jHii'l out money enough to doctors. 
 
 q.—U not this tickling sensation just to tickle a little money out of the Grand Irunli C 
 
 A. — No, sir. 
 
 Q._Oh, come ' A.— No " Oh, comes" about it. 
 
 Q —Then; was a little scar on your finger ? A.— Yes ; it is there yet. 
 
 n ._iJo you recollect .seeing this gentleman here, who represented the Grand Trunk, and telling 
 him you received no injuries at all ? A.-I recollect telling that gentleman when I first landed that I 
 
 did not know that I was hurt at all. , • , •. i n 
 
 Q.-l)id you tell him you had received any personal injury ' A.— 1 do not think it. 1 will 
 
 swear 1 said like this, that when I was first hurt I did not kimw I was injured at all. 
 
 Q.—He was speaking to you a month afterwards ? A -1 do not know that gentleman at all. 
 Q.—A month afterwards did not you tell him you were not hurt at all, except a scar on your 
 
 fincer.^ A. — 1 do not liiink it 
 
 ° Q —Do you undertake U> say on your oatli that y„u did not say that < A.— I do not think that 
 
 I did. - ^ 
 
 Q —Did yon tell him tiiat ? A.— 1 do not think I did. 
 
 Q.__ Will" you undertake to pledge your oaMi you did not f A.-To the best of my recollection 1 
 would not swear 1 did. If 1 made that .statement it would not be right. 
 
 Q._Did you tell Mr. L.gan that ? A.-No, it was him and Mr. Logan was in my house the 
 other day. I told them the tirst go oil 1 did imt know I was hurt at all. 
 
 Q.— Did you tell him you weie not hurt then, but you found out you were hurt af-erwards ? A. 
 —1 told the two together. 1 was talking to Mr. Logan. I said it was a black moustacbed man 1 was 
 talking to on the track, and 1 do not know but what you are the man. 
 
 t^._Did you put any stull on your shoulder ? A.— Yes, a liniment. 
 
 Q.— Used for rheumatism ? A.-Yes, it is a good liniment. 
 
 Q._lt was for rheumatism it was used ? A,— 1 have n.sed it for vlieumatisni. 
 
 Q._You thought this was rheumatism ? A.— No, it was just wliat 1 had in the house. 
 
 :i0 
 
 40 
 
vo not any idea. 
 
 Grand Trunk 
 
 Ihiiik it. 1 will 
 
 not think that 
 
 fow^LU r-^'^< .<^^/3 ' ^f ^"/y f^/^^^^ (<-/ 
 
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 16 
 
 Q.--\Vliiit Villi ><iii'l to Mr. McNiiiiU'M in ymir nxaiuiiiatiuii was thU, Whnii! is McNiiiiies now ? 
 I do not kiKiw, ht' h'lt hi'iv, 1 -iii'ss, si couple of nioiilliH ii^' '*" >'"" '^""W ^v'"'"''' '"' ^^''"' ^" ' |'" 
 is otVoii llic olhui' Hi(li) soiiicwii.'ic ill tlio StiitcH ' Yes. Did yoii i'V(!r liavu any comiiimiiciition with 
 liim ill risfiT. iiw to it !■ If 1 hud 1 would know wliciv lii was. Il(i iit'ver told you ho was j^oinj^ to 
 mnko you jmy for tlu" hu^-Ky ' No nion; tlmii what hi- told mo htil'orc. Ho was in the livery Inisiiiess ' 
 Yes, since tlicii he lias soM lait. Yoii suiil this was helwec'ii seven and imkIiI ? Yes, That was sworn 
 to how loiij.; a^^o, alpoiil a week a.^o or tiiii days a;4o / A.— I think it was last Thursday, but that is not 
 the way you askeil nie tiie (|ui)8tion. 
 
 (^.— Have you I'aiil him aiiytiiiii^' for the dama^'e ? No, sir, the hii),'j,'y stands just as it Nyas 
 H) broken. Is there any arraiijiemeiit lietwecn you and him as to the dama^i! / No, sir; the i)Uggy 
 stands just as it was lirokeii. This was a livery horsu f A.— Yes. 
 
 y.— The horse was not injured at all; there is no claim iii.ide lor the horse ! A,— No, lie never 
 j»ot a scratch on him. 
 
 Q — J|,i,| you ever driven him before < A.— Never in my lile. 
 
 y.— bid ho ajiiiear to drive ((uict that <lay .'' A.— Yes, would not ask for a yentler horse. 
 
 llK-E.XAMlSKU IIV Mk. El-I.IOT;— 
 
 A. — Yo3, sir. 
 
 ■ 
 
 Q__My learni'd friend tries to make j,'reat sport out of this tickliiii,' sensation 
 
 Q,_To yon, 1 suiipose, it is pretty serious ;' A.— Yes, sir. 
 
 Q.-MyUmrned friend has cii(h"avoivd to mystify you in regard to these tracks. I have just got 
 20 a little sketch here ; these aiv the tracks ! A.— Yes. 
 
 Q._Tliis is Maitlaiid street and this is the switghman's box f A.— Exactly. 
 
 Q.__l),ies the jilan jiive you an idea of the street and the tracks ! A.— I do not know tli(> width 
 of that street. I i>aced one street, that is Talbot street ; it is 40 feet across Talbot street. 
 
 Q_ls the switchman's shanty on the ea.st side ? A.-— Yes. 
 
 () close to the road f A. -Ui;.;ht closi^ to the road and close to the track. 
 
 g __I8 it dose to the track uii-m which this car apjieared ? A.— Yes. 
 
 Q._]Iow close ' A. 1 think tiic rails just give room enou^'li to pa-^s right along with a treightcar. 
 
 Q,_ls the track to the north ol this house ' A. —Yes. 
 
 Q,— Supposing the horse's head were right bey.nid the lirst rail, your carriage would be right 
 30 opposite this hou.se i A.— -Yi's. 
 
 Q ._So wlu'ii my learned friend talks about jiassing that house and seeing no light there, you 
 should then bdvc steps to jirevent this accident. That is impossibU' ;' A —Yes. 
 
 Q._Could you see through the board there or throuu'li lb(^ cliimncy ' A.— No. nor through 
 freight cars either, whatever obstructiim .sbiotl there. 
 
 Q.— This was a coveriid buggy f A.— Yes. 
 
 Q,_Was the cover up ? A. — The cover was half way down. 
 
 Q _i:)i(l that intercept the view at all ? A.— No, I do not think it. 
 
 g. — Did it prevent your .seeing ju.st as well as you could without ;" A —No. 
 
 Q,_My learned friend has endeaviawl to make you say that inasmuch as you did not see llie 
 40 watchman there yon took it for granted everything was right, and yon did not look out for danger at 
 all? Is that what you wish us to understand f A— I want yon to understand like this, that .seeing 
 no watcliman on the crossing I felt it was perfectly safe, and I lieard no noise of any kind. 
 
 Q. — You did not, in consequence of no watchman being there, shut your eyes f A. — No, sir. 
 
IcNiimos now '>. 
 
 '# 
 
 Wl'Ilt to ? Ilo 
 
 'f 
 
 luiiiciition will) 
 
 4 
 
 11) was ^^oiiij^ t(i 
 
 
 very liii.siiifiSH '' 
 
 
 riiiit was sworn 
 
 r. 
 
 but timt Ih not 
 
 ?, ^'•^ 
 
 just us it \ya8 
 
 fl 
 
 sir; tliu buggy 
 
 fl 
 
 —No, li(j nover 
 
 1 
 
 (At<3 
 
 <J<u.yu^^ A.> ^ ^y^A^^^Au^^^^u-^ i-^ i^^^^^^^ tA #-x- /i/-XV//C) 
 
 
 /nvc. 
 
 '/V> 
 
 /MK^ /L /'^'^ i;Y«.^ A*^'^ «9 / Xi/K^-^ ^ ^^t, /. a "^ /-f^y /< /^ c<. 
 
 ti 
 
 t4 
 
 enow tho width 
 
 itli a tri'ii!ht car. 
 
 •Z, 
 
 f 
 
 ! 
 
 ^ 
 
 > 
 
^^^^f<u*J*^' f-^ 3> />^^*-^ <^^^ /fciZ 
 
 17 
 
 Q. — Did you still ooutinue to look out ibr the traiu >. A. — Why, certainly. I was watching the 
 track up to the time this liorse made a sj)ring. 
 
 Q, — You are not able to tell us exactly how far the horse was from the car ? A. — No. 
 
 Q.- — You did tell uiy learned tVieiid that the car was from 10 to 15 feet when you sa it ? A. — 
 It might have been. 
 
 Q.— This is east of the road or east of the middle of the road where you were ? A. — East of 
 where the buggy stood. 
 
 Q. — How in regard to the road allowance ? A. — The road allowance there is only just the length 
 of a plank. I do not know but it may bo two planks there. 
 1(1 Q.— How far east of the plank was the car ? A. — It might be ten or fifteen feet. 
 
 Q. — In the space for the road itself/ A. — That is the width of any street. 
 
 Q. — Do you mean us to understand it was tern or fifteen feet east of the road allowance ? A. — No, 
 ten or fifteen feet from where the buggy was croissing. 
 
 Q.— That would be the centre of the .street ? A. — Yes ; I do not know whether it was in the 
 centre or not. 
 
 Q— Then, as a matter of fact, this air was on the road when you .saw \ii A. — Yes; it was 
 backing right straight into us. 
 
 Q. — It was on the street you first saw it '. A. — Yes. 
 
 Q. — You told my learned friend that the horse was on the trot ? A. — Yes. 
 20 (,).— Do you know whutlicr there is greater danger crossing a track on a trot than on a walk f 
 
 A. — I think there ain't so nuicli. 
 
 Q. — Was it a slow trot < A. — It was a slow trot I know, if it was a trot at all iit the time, because 
 I know we did not drive fast 
 
 Q. — People crossing a track as a rule do not gijt down to a walk ? A. — No. 
 
 1.'. 
 
 Re-Ex,vmined by Mh. E. Mehedith : — 
 
 (^— How far to the east is the watchman's shanty ? A.— That ([uestion you asked me before, 
 and I told you about ten or fifteen feet. 
 
 Q-— If >■">' w«re driving along there, looking to set; if the watchman's shanty was lighted, you 
 
 would see it at a considerable distance ; you saw that ilidn't you for sonu' considerable ilistance ? A. 
 
 30 I did not say 1 saw it at a distance at all. 
 
 Q.— Could not you if you had looked ? A.— I do not know thai 1 could, dark as it wa.s. 
 
 (,» —The watchman's shanty would be o]>en with a light in it i A.— There was no light in it. 
 
 <^.— If you had looked you wduld have seen whether there was a light in the shanty or not ? 
 A. — That is very true, no doubt. 
 
 Q-— If you had looked before you got ujion the track you could have seen this watchman's shanty 
 and that there was no light there ? A. — That is a question. 
 
 Q.— There was nothing to prevent you >. A.— I do not know but there was. 
 
 Q.— Did you see the light there :" A.— I looked to see if there was lights on the track. 
 
 Q.--Did you look to see if theie was a light in the watchman's shanty ? A.— I do not know that 
 40 I looked to the watchman's shanty or not, I looked the width of the .street. 
 
 (.,).— You took it for granted there was no watchman there ? A.— I took it for granted there was 
 no danger. 
 
was watcliing the 
 
 -No. 
 
 3U sa it ? A. — 
 
 re ? A.— East of 
 
 ly just the length 
 
 k'ance ? A. — No, 
 her it was in the 
 A. — Yes ; it was 
 
 than on a walk ( 
 the time, because 
 
 asked me before, 
 
 was lighted, you 
 distance ? A. — 
 
 it was. 
 
 o light in it. 
 
 e shanty or not >. 
 
 itchman's shanty 
 
 track. 
 
 lo not know that 
 
 ■anted there was 
 
 
 
 •/^^ 
 
 /?S^ 
 
 fri' 
 
 vy/W-^x^^iA<..^^^<*^^^^ 
 
 
 '7 
 
 
 
18 
 
 10 
 
 DANIEL STEWART, sworn. 
 To Mr. Elliot: — 
 
 Q.— You reside in the city ! A.— I do. 
 
 Q.— Have for some years ? A.— Tiie hist two years and a-half. 
 
 (^— You lenii'nibcr tlic 2nil of October last :' A.— I do. 
 
 Q.— You came in with Mr. lAIoore from Belmont ^ A.— Yes, sir. 
 
 Q.-DO you recollect what time it was you left Jielnuu.t i A.-J}etween four an.l five o'clock 
 
 (J.— Did you stoj) on the way ' A.— Wc; did. 
 
 g._\Vlu.re did you stop ( A.-We stop,,..! at Nilestown and watered the horse 
 
 Q.-Any where else? A.-Slopp.d at Mr. (Jraham's. Mr, CJvaham sent a n.essa.e with me to 
 tell his woman, and I -ot o.it of tin, huuay and left the message and went on. 
 
 Q.— And you st(ii)ped at Ilomister's ? A. —Yes. 
 
 Q.-Had you seen Mr. (iraiiam before ' A.-I saw him at Belmont. 
 
 Q.— Then you came towards the city ? A.— Y(;s, sir. 
 
 Q.-You turned off the Hamilton Knad on to Maitland stre.it ^ A -Yes sir 
 
 Q.-What did you see ther. ; did yon hear anything ? A.-I heard some cars up a piece but 
 he e was a row of cars n. belnnd the watclnnan s shanty, and another shanty stood u a pL, fro 
 there. There was a row of ears n, there, and this train was co.ning along side of that, a, d w could not 
 see any more tdl we got opposite I he watchman's «hanty. 
 20 g.-On the east side to the right is tlu' watchman's shanf v ' A -Ye« sir 
 
 C^.— Right hand side / A.— Yes ' ' ' ' 
 
 ;i::^rti;:;:;^:";wr ' "-' ■ "' "- "* '"■'" '" -* -■' "-'^ 
 
 f g.— Between these two there were some freiglit cars ' A —Yes 
 
 / o""^r."7 Tr' ' ''■'"' """' ''"^' "'^■'^ ^^^ ^^'' "^ '^^ -^ 'l-t night. 
 A.-it" "'"" "" ""' "■'■'■"'"•■^ '"^ "^''^'- >•""' ^^•-•'-" t^-y "ortl, of these cars ? 
 
 p^ Q.-Then did these stationary cars obstruct the view I A.-Undoubtedly they did 
 I g._Obstrneted the view of cars coming .,n the main track ' \ _Ye. ■ 1 c nil . 
 
 I we came right oppo.site the watchman's .shanty ' "" '"' '"'" ""^' ""''' 
 
 is Jn^f'J^r ^"""' "" "" ""■ "■*■" '"■" "■'"" •"••"■"' ^'"^ -'' '""-'^ ^'-^y ' A.-Yes, that 
 _^^^^^ Q.-Had you been keeping a watcli out ^ A -J g.,..,.ally do crossing the track, but it was aRer 
 
 Q.— Now, an eflbrt lias been made here to sav v<in ■.n,l ^r^ "vr . < , , . 
 
 to that ? A.-It is undoubtedly fai.se. ^ " ''''""' '''""'^"' ''^''' ''" >"" '^^^y 
 
 (,).— You say that in regard to your.s(df ' A —I d,, 
 
 *" u. >™.;r;';:;,t""" "'■ ■" '"^~" '- '"■ ''■■" ' '-' '■■ - "-'< "^^ -- ■"»'" >. .»■ >.. 
 
and five o'clock. 
 
 5e. 
 
 .S3a<'e witli me to 
 
 rs up a piece, but 
 >il up a picfc from 
 , and we could nut 
 
 two .shanties there 
 lanty. 
 
 iglit. 
 
 til of these cars ? 
 
 did. 
 not see any until 
 
 ■ < A.— Yes, that 
 
 k, hut it was after 
 
 , Nviiiit do you say 
 
 J^A 
 
 
 >U ^ '^-a^e* ^^ ,-C 
 
 
 ^ 
 
 
 ^^T^l-^^t^^ - '^ 
 
 „-^., 
 
 &. 
 
 St*. 
 
 ^^^U '^'^-x*^'"^ ^^/TA^ -ryt-/(..^ ^iMfw i€^^y^ 
 
 ink at all, nor yet 
 y on to the road ? 
 
ALmm^ 
 
 k 
 
 
 
 Id 
 
 Q. — Can you give us any idea of how far you were from this car ? A. — I think we must be ten 
 or fifteen or sixteen feet, 
 ll Q. — From the track on which the car was ? A. — No; when I first saw the car we must be ten 
 
 J or fifteen, or maybe two rods from it. 
 
 Q. — That is to say the car was both in front and to your right ? A. — Yes ; it was backing up 
 from the east. 
 
 Q. — At that time it had not immediately got in front of you ? A. — No. 
 
 Q. — It was also at one side ? A. — Yes, one side of us. 
 
 Q.— Did you observe what the horse did, how he behaved ? A — He behaved all right enough ; it 
 10 got a little frightened and he made a jump. 
 
 Q. — Did he make a jump forward ? A. — Yes, sir. 
 
 Q. — And the horse got past ? A. — Yes. 
 
 Q. — And the conveyance, what became of it ? A. — I could not tell you. 
 
 Q. — At that time what became of it ? A. — I did not know any more after the car struck the 
 conveyance ; I was sent about 15 feet on the north side of the track. 
 
 Q. — Did you see anything of Moore ? A. — Not at that time. Some man came there and asked 
 lue if I was hurt, and he picked me up, and after he picked me up I began to come to my senses. 
 
 Q. — Were you not insensible ? A. — Y'es, I laid there quite awhile. 
 
 Q. — You were injured I believe ? A. — Yes, sir. 
 20 Q. — Where were you injured ? A. — I was cut over the eye. 
 
 Q. — You have not brought any action against the Grand Trunk ? A. — No, sir. 
 
 Q. — Was that because it was alleged you were under the influence of liquor ? A. — No, sir. 
 
 Mk. Meredith objects. 
 
 Q. — When you came to what took place ? A. — There was some gentleman Avith a light ; I asked 
 him if there was any place around I co^^ljfc^h my face, and he said yes ; he took me over to a shanty 
 like and I went in and washed my race and then I went home. 
 
 Q. — Did you see the horse that evening '. A. — Yes, there was some person led the horse back. 
 
 Q. — How was Moore driving that evening ? A. — He did not drive very fast. 
 
 Q. — It is said you were driving very rapidly across these tracks, is that true ? A. — No. 
 30 Q. — Was he driving moderately ? A. — That is all. 
 
 Q. — Was it a good horse ? A. — A good, fair horse, dl'ive along about five miles an hour, or maybe 
 a little better. 
 
 Q. — Did this cover of the buggy obstruct the view at all ? A. — No, I should not think it did. 
 
 Q. — Mr. Moore tells us it was half up ? A, — It was about half up, if I remember right. 
 
 Q. — The sides did not obstruct the view ? A. — Not at all. 
 
 Q. — You saw no man and had no intimation until you saw this train ? A. — No. 
 
 Q. — Do you know how many cars were being backed up ? A. — I could not say. 
 
 Q. — The engine was at the east end ? A. — Yes. 
 
 Q. — You heard no bell ? A. — I cou i not swear to that. 
 40 Q. — What sort of a buggy was this ? A. — Good, fair buggy. 
 
 Q — Did you see it after the accident ? A, — I did one day, but I paid no attention to it much. 
 
 Q. — You did not see it that night ? A. — No, I did not. 
 
 Q. — You were too badly hurt ? A. — No, I did not pay much attention that night. 
 
 Q. — It was pretty badly wrecked ? A. — Ye.s, it was pretty badly wrecked. 
 
nk we must be ten 
 
 !ar we must be ten 
 
 it was backing up 
 
 ill right enough ; it 
 
 the car struck the 
 
 lie there and asked 
 to my senses. 
 
 k. — No, sir. 
 
 h a light ; I asked 
 ae over to a shanty 
 
 the horse back, 
 
 A.— No. 
 
 an hour, or maybe 
 
 ot think it did. 
 aer right, 
 
 ). 
 
 ion to it much, 
 ht. 
 
worth. 
 
 20 
 Q.— It could uot be repaired i" A.— It could be repaired, but it would cost as much as it was 
 
 . ■ ;ompany, but would he have an action against 
 
 The Court— I do not understand how the juggy comes to form any portion of the damage in this 
 case. 
 
 Mr. Elliot— Why.? 
 
 The Court— You have got to show that there is some claim on the part of your client to the 
 owner of the buggy. 
 
 Mk. Elliot— Suppose this Kailway Company are guilty of negligence, surely the liveryman would 
 have an action ? 
 10 The Court — He might have an action asf i 
 
 Mr. Moore ? 
 
 Mr. Elliot — I grant you that. 
 
 The Court— That being the case, how would Mr. Moore have an action ? Suppose ho had given 
 a release to Mr. Moore, would Mr. Moore have a right to sue the Company ? 
 
 Mk. Elliot — \Ir. Moore, as a bailee, has a right to bring the action. 
 
 Ckoss-Examined hy Mr. E. M. Meredith : — 
 
 Q.— I understand that coming up this street there is first the old Grand Trunk track, you had 
 crossed that ? A. — Yes. 
 
 Q — Was there any track between that and the track upon which the accident happened ? A. I 
 
 20 could not sa/. i 
 
 Q.— That was some distance back, 100 yards or more ? A,— I could not say how far it was. 
 Q.— What you were coming to was the new line of the Grand Trunk Company ? A.— Yes, I 
 suppose it was. 
 
 Q.— Just a single track or double track ? A— Quite a immber of tracks. 
 
 Q.— Would you like to say there are any more than a pair of tracks there ? A— I am told 
 tliere is. 
 
 Q.— I am told there was just two tracks I A.— It :.'>ight be ; I would not say. 
 Q.— At all events it was on the main line of the railway / A.— I suppose it was on the main 
 line ; I could not see that night. 
 30 Q. — You know now ? A. — I have heard it was. 
 
 Q.— Have you bee. to look at it ? A. -I have passed there since. 
 Q.— It was the most northerly track crossing that street ? A.— Yes, sir. 
 Q.— A good deal of traffic there ? A.— I suppose tliere is a lot of traffic there. 
 Q.— All the through business of the Grand Trunk goes over that ? A.— Yes. 
 Q.— It does not go over the other tracks which you had passed over ? A.— Not so much. 
 Q.— That is the old Grand Trunk which was given up, and all the trains now come into the main 
 track into the main station ? A. — Yes. 
 
 Q.— So what you had passed over wore practically disused tracks ? A.— I do not think they are 
 uised as much. 
 40 Q.--You know they have closed the old Grand Trunk station ? A.— I was not aware of that. 
 
 Q. — The train was coming from the ea.st ? A. — Yes, sir. 
 
 Q.— You heard the rumbling of it how long before ? A I think I heard the train come ; heard 
 some noise as we were coming across after we got across the first track. 
 
as much as it was 
 ' the damage in this 
 
 your client to the 
 le liveryman would 
 i^e an action against 
 
 ppose ho had given 
 
 ink track, you had 
 
 happened ? A. — I 
 
 )w far it was. 
 pany ? A. — Yes, I 
 
 e ? A —I am told 
 
 it was on the main 
 
 t so much. 
 
 :ome into the main 
 
 not think they are 
 
 t aware of that. 
 
 train come ; heard 
 
21 
 
 rff! 
 
 Q. — You think you heard the rumbling of that train ? A. — Yes, up a little ways. 
 
 Q. — Did you hear that (outiuuously until you came to the place where the accident happened ? 
 A. — No, I could not say I did. 
 
 Q. — Even wheu you were as far away back as the old Grand Trunk line you heard the rumbling 
 of the train coming ? A. — I think we were across the track. 
 
 Q. — Coming up lo the track when you heard this train coming ? A. — Yes. 
 
 Q. — Did you say anything to Moore about you heard the train coming ? A. — I told him he had 
 better hurry up and get across before the train came for fear it might be closer by than we were aware 
 of 
 10 Q. — Then he did drive up, I suppose, faster ? A. — I could not say. I guess he hurried the horse 
 
 up a little. 
 
 Q. — He says he presumes you were going at a trot ? A. — Yes, we were trotting. 
 
 Q. — There was nothing that night, he says, to prevent you hearing the cars moving ? A. — It was 
 a kind of a quiet night. I do not think there was much noise. 
 
 Q. — He says you were in conversation he thinks at the time. Do you remember what you were 
 talking about ? A. — I could not say, I am sure. 
 
 Q. — Which side were you on ? A. — On the left hand side. 
 
 Q. — That would be further from the train ? A. — Yes, sir. 
 
 Q. — He would have the best chance to see it ? A. — Yes, sir. 
 20 Q. — There was no buildings there ? A. — Only a little shanty. There was another shanty up a 
 
 little piece from that. 
 
 Q — Only small buildings ? A. — Not very large. ■ 
 
 Q. — The track is all exposed to that road except these two little shanties ? A. — Yes, sir, but the 
 row of box cars behind these shanties would take the sight from us. 
 
 Q. — It is quite level there and if there is nothing else in the way it would be quite easy to see 
 that moving train ? A. — I think it would. 
 
 Q. — The cars that you saw on that occasion, that you thought obstructed the view, were not they 
 the moving cars ? A. — I could not say whether they were or not. 
 
 Q. — Then it might have been the moving cars that obstructed the view ? A. — No; the moving 
 30 cars were on the other side of them. 
 
 Q. — They say it was the moving cars ; they were mistaken for the stationary cars i A. — 1 do not 
 think they were. 
 
 Q. — You would not undertake to swear they were not moving ? A. — As far as I know I am 
 satisfied they were not moving. 
 
 Q. — How many do vou think there were of that kind ? A. — I could not tell you ; I think there 
 was three or four anyway. 
 
 Q. — Of course they would not obstruct much of the view? A.- -They just obstructed the view 
 between the two shanties. 
 
 Q. — The whole of the way between the two shanties ? A, — 1 would not say. 
 40 Q. — They would not obstruct the view of a train 16 cars in length ? A. — No ; it does not stand 
 
 to reason it should. 
 
 Q. — Here is what Mr. Moore says in regard to that, " the train was coming from what direction ? 
 A. — From the east. They were backing up 10 cars I am told. I did not count the cars." Q. — Would 
 you agree with that, that they were backing up 10 cars ? A. — I did not count the cars ; I did not feel 
 like counting them. 
 
.ccident happened ? 
 leard the rumbling 
 
 [ told him he had 
 lan we were aware 
 
 3 hurried the horse 
 
 ing ? A. — It waa 
 3r what you were 
 
 ither shanty up a 
 
 —Yes, sir, but the 
 quite easy to see 
 ew, were not they 
 —No; the moving 
 •s ? A. — 1 do not 
 as I know I am 
 ou ; T think there 
 structed the view 
 
 it does not stand 
 
 I what direction ? 
 irs." Q.— Would 
 irs ; I did not feel 
 
22 
 
 / Q.— I undt'istand ymi to say the boll was ringing >. A.— I think [ heard the bell, hut I thought 
 
 I it was away at the oast end ; I thought I heard the boll ringing there. 
 '/ Q.— Then it would seem to have been a imre accident >. Can you suggest where the ( 'oinpaiiy was 
 
 to blame at all ? A.— The way they were to blamo, if their watchman was there and oii duty wo would 
 
 not have driven on. 
 
 Q.— That is the only fault you can find with them, that the watchman was not on duty there ? 
 A. — That is the only fault I can find. 
 
 Q. — If they were not bound to have a watchman there, there was no fault you could find / A.— 
 It was our own look out then, there would be nodepondenco on a watchman. 
 
 10 g.— After hearing the train and hearing the bell ringing, you did hear the train some two rods 
 away ? A. — Did not see the train till we got to the watchman's shanty. 
 
 Q.— It was two rods away from you ? A.— It di^peuds upon how far the shonty is away. 
 
 Q — That is the trouble we are in ; we do not know how far the shanty is away ? A.— I do not 
 think the shanty is more than two rods. 
 
 Q.— Would two rods be about right ; just measure it with your eye ? A.— I do not think it would 
 be any further than two rods, if it is two rods. 
 
 Q.— I suppose Moore saw it as soon as you did ? A.— He had as good a chance as I had to see 
 it a little better. 
 
 Q.— If he did not see it, it was his own fault ? Could you tell me why he did not pull up then ? 
 20 A.— We were too far on the trick to pull up. I thought our safest plan would be to get over as fast as 
 
 we could. We were too far gone. 
 . Q.— Do you mean to say your horse's head was on' the track at that time '. A.— I think he was 
 
 11 the time I saw the train first. 
 
 V Q.— It was leaving Belmont I supjiose you had not been in company with Gilmore ? A.— I saw 
 
 him on the show ground. 
 
 Q. — He had something to drink there ? A. — I could not say. 
 
 Q.— He had been drinking ; I suppose you knew that from his breath? A.— I could not tell 
 whether he was. 
 
 Q. — The first tavern you came to was Nilestown ? A.— Yes, sir. 
 30 Q. — He had a drink there ^ A. — Not that I saw. 
 
 Q.— Graham's was tlie ne.xt tavern you cime to. Do you know whether ho drank there ? A. I 
 
 could not siiy. 
 
 Q.— He went in, did he ? A.— I think he did. 
 
 Q.— You remained in the buggy ? A.— I went in and delivered my message and came out to the 
 buggy, and if I mind right he was watering the horse, und wliether he went in after that I cannot say. 
 
 Q.— Was Homister's the only other tavern he stopped at ? A.— Yes. 
 
 Q.— What did he stop there for ? A.— I ciinnot tell you. 
 
 Q.— There he had two glasses of whiskey ? A.— I do no know what he took. 
 
 Q.— He stopped so near home as that, how long t A.— Ten or fifteen minutes. 
 
 40 To Mr. Elliot :— 
 
 Q.— I suppose if Moore had been so drunk as my learned friend tried to make out you would not 
 have allowed him to drive across tlio railway track ? A.— Xo, I do not think I would. 
 
 Q.— Was there anything in his driving to indicate he was under the infiuence of liquor ? A.— No 
 Q.— You have told my learned friend you heard a bell ringing ? A.— Away at the east end. 
 
;11, l)Ut r thought 
 
 hfi Company was 
 ill duty we would 
 
 : 1)11 duty there ? 
 
 •Hid find ? A.— 
 
 II some two rods 
 
 is away. 
 
 ' A. — I do not 
 
 ot think it would 
 
 ) as I had to see 
 
 ot pull up then ? 
 et over as fast as 
 
 —I think he was 
 
 )i'e ? A. — I saw 
 
 [ could not tell 
 : there ? A.— I 
 
 cinio out to the 
 lat I cannot say. 
 
 you would not 
 
 quor? A. — No 
 le east end. 
 
3d 
 
 Q, — Now, thoro is a groat deiil of triittlc in that imrt of tho 'own ? A. — I sup{)08C theru is, 
 
 Q.— Do you know whcthur tlmt U'll you lufiini wiis lii<! ImU of this ongino ? A,— I do not know. 
 
 Q. — I suppose you could stand on some of theso cornors and hear a dozon bdls ring f' A. — Vos. 
 
 Q — Did you know wIumi yon hi'md the liell ringing the train was approacliing ? A. — 1 did not 
 
 Q._My U>arnud frien<l has golyou to state that the only way in wliich this Company was negligent 
 was l)t!causo there was no waUilunan thoro ? A. — There was no watchman there that I saw. 
 
 Q. — Did you think it was negligoueo to have tho cam intercepting the view ? 
 
 Mk. Mkueuitii ohjects. 
 
 Q.— You say when you observed these cars you were two rods away ? A. — I think it would be 
 10 two rods. 
 
 Q, — You said it was a distance from where you were to tho watchman's shanty ? A. — Yes, that 
 would bo to the riglit. 
 
 Q — Then it was the distance from tho watcliinan's shanty from whore you were to tho right ? A. 
 — Yes, the car might be a little past the wati;hman's shanty. 
 
 Q. — How near were you to the track uu which the car was when you tir,st saw it/ A.— If I 
 I remember right tho horse was right over tho first rail of that track, in tho centre of the track. 
 / Q, — And the car was just at the side of the .street ? A. — Yes. 
 
 Q. — Did you observe anybody taking the horse by the head i A, — No, sir. 
 
 Q.— Do you think that is .so ( A. — Well, I do not mind of anylwdy doing it. 
 20 Q. — Did you hear that any such thing occun-ed ? A. — No. 
 
 Q. — It is said here that some of the railroad men seized the hor.se by the head ? A. — I do not 
 mind it. 
 
 Q, — You would remember if that had occurred ? A. — Well, I think so. 
 
 WILLIAM THOMPSON, called by the plaintiff, aud sworn. 
 To Mu. Vaaao-i :— 
 
 Q. — You are a carriagemakor in town ? A. — Yes, sir. 
 
 Q. — Have beei\ for a number of years, I believe > Did you .see this conveyance that met with 
 this accident ? A, — I do not know. I did not .see the accident; I seen the buggy that was brought 
 into the yard. 
 30 Q. — What sort of shape was it in !' A. — Pretty well broken up. 
 
 Q, — Was it past repairing ? A. — It was not worth repairing hardly. [ told them at the time. 
 
 Q. — In consequence of its injuries ? A. — The way it was broken up. 
 
 Q. — Could you tell, from what you saw, what sort of a buggy it had l)een f A. — The quality of it ? 
 
 Q. — The value of it ? A. — It looked to me a buggy worth somewhere from $40 to iSoO. 
 
 Q. — It was past repairing ? A. — Yes, it was not worth repairing. 
 
 Cuosa-EXAMINEU «Y Mk. E. Mkkedith : — 
 
 Q. — The bugg; you say would be worth if new from $W to S50 ? A — Somewhere about that. 
 Q. — ^^Had the buggy l)een run ? A. — Yes ; I could not say how long. 
 
 g. — It would cost from $20 to $30 to put it in order ? A. — That is without a top; a top would 
 40 cost $15. 
 
 (^— The buggy was worth from $40 to $50 ? A.— Yes. 
 
 Case closed. 
 
ose theru is. 
 1, — I do not know. 
 la ring / A. — Vua. 
 ig ? A.— I did not 
 ipuny wuM nugligunt 
 it I saw. 
 
 1 thinl< it would be 
 
 ty ? A.— Yiis, that 
 
 e to the right ? A. 
 
 8(iw it/ A.— if I 
 he track. 
 
 d ? A. — I do not 
 
 ance that met with 
 ;y that was brouglit 
 
 leiii at the time. 
 
 — The quality of it ? 
 10 to *50. 
 
 here about that, 
 a top ; a top would 
 
24 
 
 MOTION FOR NON-SUIT. 
 
 Mk. R. M. Mekeditu — We claim that there is no pretence of a case made out. The plaintill' coming 
 into Court must show some reason why he should recover. He must show clearly beyond any doubt a 
 breach of .some duty and some wrongful act on the part of the defendant. Now, I ask my learned 
 friend to point, if he Ciin, any breach of duty that is imposed on the railway, or any wrong done by 
 them in this matter. The case, as the last witness puts it, is purely a case of an accident The railway 
 had a right to have their railway tracks there ; they hatl a right to use the railroad as they were using 
 it that day ; tlie right to cross the road as often as their business required it, and unless my learned 
 friend can sliow tliat on crossing that roail they are guilty of some wrong, he cannot recover in an action 
 
 10 of this sort. Jt was, a short time ago, common fqr people to bring actions againtst railway companies 
 and recover damages simply because they were railway comiwnies, but now the Court insi.sts upon the 
 l>laintin' placing his finger on some wrongful act on tlie ])art of the railway before ti>ey will allow the 
 case to go before a jury. It was the plaintiff's duty not to run into the railway train, as we are all aware 
 railway trains cannot be managed the same as a horae and buggy. When a person apjn'oaches a 
 railway track lie is bound to do it with the greatest care, and it seems to me this was a case of Mr. 
 Moore running into tiie railway train instead of tlie railway train running into him What negligence, 
 what duty, has been asserted that the defendant's have broken in any way < Tiie only thing that can 
 be suggested is that they did not have a watclnuan. I need not cite to Your Honor that the law does 
 not require tlieni to have a watchman, I f there were a statute requiring them to liave a watchman 
 
 20 there, then if my learned friend proved they had not a watcliman ihere, tlien he might succeed- 
 Railways are a necessity for the country. It is ab.solutcly neceseary for these lines to be viperated and 
 that they should be ojierated with asm.icli s}i(!ed and regularity as possible. It is the duty of a jier.son 
 approaching a railway tm in to avoid any danger. What was done in this case, from tirst to last, was 
 not done to avoid danger. Tiie train was moving apparently, the bell was ringing. Why, on earth, did 
 not this niaii jiiill u]) ? If they had done that they would have avoided the accident and nothing 
 would have liai)pened. The cases upon the p(jiiit are so clear I would ask Your Honor to determine no 
 case has been made out. The onus of showing negligence is upon the I'laintitV. I refer Your Honor, as 
 to the law bearing very much upon this case, to the most recent case of Jones against the Grand Trunk 
 Railway, and the Davey case. The second p((iiit I make to Your Honor is this, that the accident 
 
 30 clearly occurred as stated in the Davey case, through the want of care of the man that was driving. 
 Driving fast, driving right into danger. If he had stopped a moment, what anybody of .sense woukl 
 have done, expecting a watchman there, and seeing no watchman not to go on, hut to wait till he would 
 see if the way was clear .Stewart .says he heard the rumbling of the train and drove faster instead of 
 stopping in a place of safety until the danger was over. He himself said he looked straight north and 
 in no other way. 
 
 The Coukt — He could not see very well any other way, becau.se there was the obstruction in tlie 
 road to prevent them. 
 
le plaintiir coming 
 jyond any doubt a 
 I ask my learned 
 iiy wrong done by 
 ent Tlio railway 
 IS they were using 
 unless my learned 
 cover in an action 
 railway companies 
 rt insists upon the 
 hey will allow the 
 as we are all aware 
 rson approaches a 
 was a case of Mr. 
 What negligence, 
 ily thing that can 
 tliat tile law does 
 have a watchman 
 le might succeed- 
 to be viperated and 
 e duty of a ])ei'son 
 n lirst to last, was 
 Viiy, on earth, did 
 iident and nuthing 
 or to determine no 
 fer Your Honor, as 
 the Grand Trunk 
 that the accident 
 that was driving, 
 y of sense woukl 
 wait till he would 
 'e faster instead of 
 straight north and 
 
 obstruction in tlie 
 
25 
 
 Mr. MEltKDiTH — There were these cars that the witness Stewart won't swear were not moving 
 train, and they were only three cars in length, while the other cars were sixteen in length. It seems 
 to me to be a clear ciise of going right on to danger without taking the ordinary precautions that any- 
 body would take. He puts it himself, there was no watchmnn there, and that is the reason he claims 
 he had a right tc go on. I saw there was no watchman there. I thought there were no cars because 
 there was no watcliman, and so went on If a railway company are to be liable simply because there 
 is an accident, it would be a very hard thing upon the railway companies. There must be a negligence 
 alleged and negligence jjroved. I submit there is not one tittle of negligence proved here, and the cases 
 1 have cited are expressly in point, and the plaintiff" ought therefore to be non-suited. 
 10 The CoUKT — The distinction I see between that case and the present case is that there was a 
 
 watchman's shaniy on the road. If there had been no watchman's shanty there it would be a question. 
 But having once built that shanty and having a watchman there, it was the duty of the Company to 
 keep a watchman there. It might not have been necessary to have put that shanty there, but having 
 put it there, and having put a watchman there, the public felt they were safe in passing by reason of 
 there being a watchman there. 
 
 Mk. Mereuith — Of course if you Honor holds the buildiug of the shanty there renders it 
 necessary to keep a watchman there at all hours of the day and night, then we have a breach of duty. 
 They might want a watchman there only on Satiu'day. 
 
 The Goukt — That is the weak jioint in the plaintiff's case in not going further and showing 
 20 whether a watchman is usually there o^' not. 
 
 Mk. Mkkedith — This case I have cited, there was a watchman tiiere and he was talking to two 
 boys, not doing his duty. 
 
 Mk. Elliot — I admit that this Railway ( 'omiiany are not obliged to have a watchman there, but I 
 submit if they have no watchman they have to provide other means whereby they intimate to 
 passengers the approach of trains. Your Honor is aware that there is a statutory obligation that every 
 engine apjn'oaching a railway crossing must, when they get within 80 rods, sound a bell or blow a 
 whitstle. Here we have an engine and 16 cars from this crossing and they say a bell was heard in the 
 distance. Mr. Stewart says he heard a bell away east. He did not know a train of 16 cars was 
 coming. I submit that is negligence of the grossest description. The case of Jones against the Grand 
 30 Trunk, which Your Honor will recollect, has no bearing whatever upon tliis case. In that case the 
 plaintiff' went unnecessarily out of his way. 1 think he was going to the station, and instead of going 
 along the way provided for that means he went along a track, an unnecessary deviation from the 
 regular path. I submit theie is abundance of evidence to show negligence on th(! part of this Comj)any, 
 That there is this backing down these cars without any man on the crossing. There was no light upon 
 the first car or upon the last car. The engine away up at the end of the sixteen cars. There is nothing 
 to show there was any whistling or 'h'II ringing, except what Mr. Stewart says he heard away in the 
 distance. There is no doubt this signalman's shanty obstructs the view. There is no doubt the cars 
 obstruct the view. 
 
 The Coukt — I won't withdraw the case from the jury. 
 
• were not moving 
 length. It seems 
 icautions that any- 
 e reason he claims 
 :e no cars because 
 aply because there 
 1st be a negligence 
 liere, and the cases 
 
 1 that there was a 
 )uld be a question, 
 if the Company to 
 there, but having 
 ssing by reason of 
 
 r there renders it 
 3 a breach of duty. 
 
 ther and showing 
 
 was talking to two 
 
 ihman there, but I 
 
 they intimate to 
 ligation that every 
 
 a bell or blow a 
 1 was heard in the 
 in of 16 cars was 
 against the Grand 
 
 In that case the 
 id instead of going 
 aviation from the 
 
 of this Company, 
 was no light upon 
 
 There is nothing 
 leard away in the 
 no doubt the cars 
 
c. 
 
 26 
 
 DEFENCE. 
 
 10 
 
 20 
 
 AMOS BLACKWELL, called by the defendant, and awom. 
 To Mr. Meredith : — 
 
 Q. — You are a switchman? A. — Yes, sir. 
 
 Q.— Where are you situated ? A.— I was at Maitland street the night of the accident. 
 Q.— Is there any watchman kept at that crossing ? A.— Xot after half-past seven, 
 Q. — Never is ? A. — No, sir. 
 
 Q.— Do you remember the night of the accident ? A.— Yes, sir. 
 Q.— What were you doing ? A.— I was switching at the time. 
 Q-— Uo you recollect this train coming down ? A. — Yes, sir. 
 Q— Where were you ? A.— At Maitland street. 
 
 Q.— On the train or near the train ? A.— Walking along side the last car. 
 
 Q— For what distance east of the crossing ? A.— Just a short distance before the accident 
 occurred. 
 
 Q —About how far .? A.— From near the centre of the road. 
 
 Q— What did you observe ? A.— I observed the yavdsman on the end of the train giving a yell. 
 
 Q. — There was a yardsman on the end of the train ? A.— Yes, sir. 
 
 Q.— How many cars attached to tliis train ;' A. — Five. 
 
 Q.— Wiiat did the yardsman do .■' A— He yelled at a coming rig. He saw a rig coming and 
 yelled. 
 
 Q. — Did he yell pretty loud ? A.— Yes, sir. 
 
 Q.— How far could you iiear him ? A —You could hear him a good block off. 
 
 Q.— Where was the rig at this time ? A.— Near to the track. 
 rf Q.— How close to the track :- A -About ten feet, I should judge. 
 
 I Q.— What did the driver of the rig do ? A.— The first I noticed was the yardsman jump off the 
 train and catch the hor.se by the head and yell a second time. 
 
 Q.— After yelling the first time he jumped off the train and cauglit the iiorse by the head and 
 yelled again ? A, — Y'es. 
 
 Q— How far would tlie horse be from the train then ? A— Would not be more than four feet 
 off the track. 
 
 (i).— When he took him by the head ? A.— Yes, 
 
 Q.— What happened then ? A.— The driver of the rig urged the horse on and the yardsman 
 jumped away from the horse. 
 
 Q.— And the accident happened in that way i A.— Yes, sir. 
 
 Q. — Came close to the moving train then ? A. — Yes. 
 
 Q.—You said he would be about ten feet from the train when he yelled first ? A.— About ten feet 
 angle ways. 
 
ideiit. 
 u. 
 
 fore the accident 
 
 aiii giving a yell. 
 
 a rig comin<' and 
 
 lan jump off the 
 iy the head and 
 'e than four feet 
 
 id the yardsman 
 
 -About ten feet 
 
^fttoWCt (4^^ 
 
 CUo 
 
 "S 
 
 27 
 
 Q.— Did you see what happened then ? A.— Only as soon as he urged tlie horse on; the horse 
 gave a pull off from the boards between the passengers' sidewalk and the horse-way. 
 Q. — Was the bell ringing ? A. — Yes, sir. 
 Q.— You swear positively to that ? A. — Yes, sir. 
 ^ Q.— Were there any cars standing on the track this side ? A.— I could not say. 
 f Q.— Did the yardsman have any light >. A.— He was on the bottom of the brake-beam hanaiii" on 
 "o the ladder. ° ° 
 
 Q. — Lumber there ? A. — Yes, sir. 
 
 Q.— At what rate of speed were they going down ? A.-#-Between two and three miles an hour 
 10 not any faster than three miles an hour. 
 
 Q. — Are you working for the Grand Trunk now ? A.— No, sir. 
 Q.— Where are you working now ? A.— In Wortman and Ward's Foundry. 
 ^ Q— Anything to prevent any person seeing up the track ? A.— Not that I was aware of ; only the 
 Ns f watchman's shanty. 
 
 Q.— That is just a small building ? A. — Yes, sir. 
 
 Q.— Would the rumbling of the train make any noise ? A.— Yes, sir. 
 
 Q. — Could be heard a considerable distance ? A. — Quite a ways. 
 
 Q.— The bell ringing could be heard a considerable distance ? A.— Yes, sir. 
 
 Q. — Can be heard a block away ? A.— If a person is listening. 
 
 20 
 
 CROSS-EXAMINED BY Mr. ElLIOT :- 
 
 Sir. 
 
 Q. — A good deal of traffic in that part of the town ? A. — Yes, 
 
 Q- — Trains passing and re passing all the time ? A. — Yes. 
 
 Q.— That is the shunting ground of the Grand Trunk ? A.— It is in that neighborhood. 
 
 Q.— Bells going ? A. — Whenever there are any engines around. 
 /. Q.— There are engines around nearly all the time. Is it not a matter of fact that a great deal of 
 
 |f shunting is done at night time ? A. — Yes, sir. 
 "y A Q- — You say this watchman's house obstructed the view ( A.— Yes. 
 
 y Q — If there had been any stationary cars there it \m\iV\ have obstructed the view ? A.— Yes. 
 
 Q.— You have told us you did not know whetlier there ^^ .re cars there or not ? A —I could not 
 30 say. 
 
 Q.— Where did you tell m.y learned friend you were at the time of the accident ? A.— Walkino 
 along the side of the cars. '^ 
 
 Q.— Would that be on the north side >. A.— No, the south side of the cars. 
 Q.— How far from Maitland street ? A.— About six feet I sliould judge from the shanty. 
 . Q.— When the accident occurrerl ? A.— No, before the accident occurred. 
 T Q.— Before the accident occurred you were six or eight feet from the shanty ? A.— Yes, sir. 
 f Q.— Had you seen this carriage approaching ? A.— Not until I heard the yardsman yell". 
 Q.— Is that the yardsman thufc was on the end of the train ? A.— Yes. 
 Q.— What you call the brake-beam ? A.— Yes, ,sir. 
 40 (,). — Was he standing on that ? A. — Yes, sir. 
 
 C^.— Where was he at the time ? A.— He was hanging on the ladder with his feet on the brake- 
 beam. 
 
 Q,— You were six or eight feet from the shanty ? A.— Yes, 
 I" Q.— The shanty is right on the side of the road ? A.— Yes, sir. 
 
horae on ; the horse 
 
 ke-beam hanging on 
 
 hree miles an houi- 
 
 aware of ; only tlie 
 
 borhood. 
 
 at a great deal of 
 
 iew ? A. — Yes. 
 A. — I could not 
 
 It ? A.— Walking 
 
 le shanty. 
 
 A. — Yes, sir. 
 man yell. 
 
 Bet on the brake- 
 
 ^- 
 
dbUulwflL [/\\,Jd^y,a,. ^ 
 
 f 
 
 28 
 
 Q.— Where was the car ? A.— The end of the car was past the shanty. 
 Q. — They were ou Maitlami street ? A. — Yes, ah'. 
 Q. — It was theu that he yelled ? A.— Yes, sir. 
 Q.— Did you see him jump olf? A.— I did. 
 Q.— Did he yell before he jumped ? A. — Yes. 
 
 Q— Which way did he go ? A.-He jumped off the end of the car and got hold of the horse's 
 head. 
 
 Q.— Did he run straight on the track ? A.— No, jumped to the side of the car and on to the 
 roadway. 
 
 10 Q— Then he seized the horse by the head ? A.— Yes. 
 
 Q.— Did he arrest the progress of the horse ^ A.— He got hold of it and hallooed, and then when 
 the man urged the horse on he jumped away. 
 i / Q— How near was the horse to the track at the time ? A.— Four or five teet. 
 fv Q.— When he first seized hold of it 'f A.— Yes. 
 •^ Q.— You had not seen the horse before ? A. — No. 
 
 Q-— You could not say what rate they were going ? A.— No. 
 Q. — You say the horse was urged on ? A. — Yes. 
 Q.— Was it struck by the whip ? A.— I could not say. 
 
 Q.— Do you know whether it was urged on or whether it was frightened by the appearance of the 
 20 car ? A.— I think it was more from the yardsman getting hold of his head. 
 
 (i.— When this yardsman stands upon the brake-beam would that bring his head above the top 
 of the car ? A. — No. 
 
 Q.— He could not give much of a signal from there. Had he a lantern in his hand ? A.— Ye,9. 
 
 Q.- He cuuld not give a signal as he could from the top of the car for passengers going amuss 
 Maiiland street ? A.— 1 suppose he could give a better signal. 
 
 Q.— Supposing there were cars obstructing his view"? A.— I don't suppose he could anymore 
 than he could on the top of the car. 
 
 Q.— Until this plaintiff and this carriage came on to the line of the track where these ciirs were 
 he could not .see this brakeman at all ^ A.— I should judge that he could. 
 30 Q.— You just told us the siianty intercepted the view, and if there were cars there they intercepted 
 
 the view i A.— Yes, if there were cars, 
 
 Q.— Supposing there were cars there f A,— It would for a ways, but as near as they were they 
 
 could see the lantern. 
 I y/ Q-— They could not see the lantern until the car was out into the street 'f A.— No. 
 f Q— It is said there were seventeen cars on this train at this time ? A.— No sir there was only 
 
 five. ' ' 
 
 Q.— What were they, box cars ? A. — Bo.x cars. 
 
 (?.— What rate were you going ? A.— Between two and three miles an hour. 
 
 y.— What were you doing, shunting ! A.— No, backing up the ears t(. put on to the train. 
 
 (i).— The other part of the train was behind ? A.— Yes, sir. 
 
 Q. — How many cars at that end ? A.— I could not say. 
 
 Ke-Examixki) by Mk. E, Mekekith :— 
 
 Q.— The track upon which the acciilent happened, there were no cars upon that f A.— No, sir. 
 Q.— The track to the south of that, how far would that be from the main track ? A.— From here 
 to the end of that side there. 
 
 40 
 
 
lold of tlio horse's 
 3ar and on to the 
 
 3ed, and then when 
 
 ! appearance of the 
 
 ead above the top 
 
 ind ? A.— Yea. 
 Migers going across 
 
 le could any more 
 
 I'c these cars were 
 
 re tlioy intercepted 
 
 as tliey were tliey 
 
 No. 
 
 lir, there was only 
 
 J the train. 
 
 ' A. — No, sir. 
 ' A. — From here 
 
 vX 
 
29 
 
 Q,— If there wore cars on the other truck where would thoy be? A.— To the east of the crossing. 
 Q.— Any person driving to the centre of that track would have ample view all up that track ? 
 A. — Yes, sir. 
 . -' Q. — This man standing on the brake-beam would be in a better position than on the top of the 
 \/ car ? A. — If he was on the top of the cur they could see him a great deal further. 
 Q, — It is part of his duty to be upon the l)nike-l)eam ? A. — Yes. 
 The Couut — There was a tmin there stationary > A. — I don't know about that. 
 
 Rk-Examined by Mb. Elliot : — 
 
 Q. — What does this yardsraan stand on the end for, to signal danger ? A. — Yes, sir. 
 
 10 THOMAS ISHEKWOOD, sworn. 
 
 To Mk. Mkredith :— 
 
 Q. — I believe you are a driver ? A. — Yes, sir. 
 
 Q — How long have you been in the service of the Grand Trunk ? A. — Fifteen years, 
 Q. — Do you remember the accident of the 2nd of October ? A. — Yes. 
 Q. — Were you in charge of the engine ? A. — Yes, sir. 
 
 Q. — What were you doing ? A. — Backing down what is called Walker's Main Line. 
 Q, — Is that the track the accident liappened on ? A. — Yes. 
 
 (Ji. — How far east of Maitland street had you commenced to back down ? A. — Forty yards. 
 Q. — From the time you started to back down was the bell ringing ? A. — Yes, sir. 
 20 Q — The whistle sounding? A. — I did not sound llio whistle. 
 
 i\. — Could the bell be heard some distance ? A. — Yes, sir; almost tw) blocks. 
 Q. — That was continually sounded from the time you commenced until you got off the crossing ? 
 A.— Yes. 
 
 Q. — Did you hear anything ? A. —I heard the watchman let a yell out of him. 
 Q. — What did you do tlien ? A. — I reversed the engine and stopped as quick as I could. 
 Q. — Of course you could not see from the position you were in ? A. — I could not see anything ; 
 it was a very dark night. 
 
 (^. — How far is the other track from the track you were backing down on ? A. — It would be as 
 far as from here to that wall. 
 30 ■ Q. — Do you know anything about any cars standing on that track ? A. —I did not notice any 
 / cars there. 
 
 Q. — How far is the watchman's shanty from that crossing? A. — Pietty near close to the crossing. 
 Ihere is only one sidewalk on that crossing and that is the west side. 
 
 Q. — How far would that be from the wagon road crossing to the watchman's shanty ? A. — 
 Thirty feet. 
 I Q.— How far from the line ? A, — About 8 feet. 
 
 I Q. — Is there a clear view there ? A, — There is a view between the watchman's shanty and the 
 
 tool shanty that belongs to the track men, about 40 or 50 feet. 
 
 Q. — Clear view ? A. — Clear view right from the south side of the track ; you can see between 
 40 these two shanties. 
 
st of tliu croBaiiig. 
 II up that track ? 
 
 on the tup of the 
 
 sir. 
 
 /ems. 
 
 MIQ. 
 
 orty yards. 
 1'. 
 
 off the crossing ? 
 
 I could. 
 
 lot see anything ; 
 
 —It would be as 
 
 1 not notice any 
 
 e to the crossing- 
 
 5 shanty ? A. — 
 
 i shanty and the 
 can sec between 
 
7i^i4^4Afc.<» «^ 
 
 Q.-Any ,K,r8on coul.l see an ..i.pnmclm.g tmin > A.-Unlesa there is cars stan.linK tl.ere. 
 t^.— yon did not see uny airs standing there / A,— No 
 
 rindnirT 1 7 TT'H '" "'" '""''' '' '""■""' '"'^^' ''"•*'" ''"^"'« '^'^^""'^ '''-'" '" '-"' t»'0 lx,ll 
 half-hour ' ' '" ""'' ""^ '"'^' "'"'"' "'""'"' ^''"'' '"■ '"«""'■' "'"'""' ^''"^" •"'"• "^"'' ^ 
 
 Q.-At what rate were yon backing ,lown '. A. -It might l.e two miles or a little more 
 A.-Ye7""'""^'"""''^ 'i-ginK f.om the time you started until you got to the crossing? 
 
 20 
 
 I 
 
 
 To THE COUHT. 
 
 10 Q.-Hrnl the yardsman a lantern in his han.l ? A. -Yes, when ho gave me a signal to stop over 
 
 the switch and he gave n.o signal to hack up, and he went behind the cars and I -lid not see hirn any 
 more till I heard the yell, and 1 8t<3p|)ed as quick as \ could 
 
 l^— What about this watchman > A.— He is not supposed to be on duty after 7 30 
 Q.— Is there much slmnting going on there after 7,30 ? A.— Sometimes there is 
 t^-ho't the danger as great after 7.30 as before > A.-The.v is not so many trains through the 
 night as through the day. " 
 
 ^.-Thereare some? A.-There are some; he stays on there until No. 13 comes in and a 
 hall hour after that comes in. It comes in at t;.30 and then it comes back the ne.Kt mornin.. 
 
 Cross-examined dy Mit, Elliot. 
 
 I 
 
 Q.-When you say there were not .so many trains in the night time, do you mean these ordinary 
 passenger trams and ireight trains ? A.— Yes. ^ 
 
 Q.-AS a fact is there not more shunting done in the night time than in the day lime ? A -No 
 
 g What slmntn>g IS .lone is done in that neighborhood ? A.-Most of the'shuuting is done 
 around that neighborhood at timt end of Hie yard. 
 
 Q.— It is (juite a iaisy portion of the yard i A.— It i,s. 
 
 Q.-HOW many tracks aiv there across there ? A.-There arc three ; the north track, the central 
 track going west, and the south track going east; that is all there is there, but if you want to ao on to 
 the Grand Irunk it is done away with. " 
 
 Q. — It is the same crossing f' A. — Yes. 
 
 Q —There are tracks there > \. — Yes. 
 
 Q.-Are they never used > A.-Unly for shunting ; there is no shunting at night time there 
 
 (^.— Do not cars stand there on these tracks ? A.— Yes. 
 
 (^-Do you know that iiiglit whether there were cars on that next track or not ? A -I do not 
 
 .n f ^'"y]'!'," ^'"" ■''^"'"'' ?'"""^'" ■'^1^"'='' '^'•°""'' the .signal house giving you a view of about 40 or 
 50 teet. It there are cars there the view is intercepted ? A.— Yes. 
 
 Q.— Then if tliere are cars there you cannot see up the track till you get upon it > A— Till you 
 get behind the shanty. . = t ■ ^ u 
 
 Q.— How far is the shanty from the track you were on ? A.— Eight feet. 
 
 Q.-So if there are cars there you have t.j come within eight feet^.f the 'track before you can see 
 eastward ? A.-No. you have not; when you cross over the Grand Trunk siding and got on the north 
 side of the track you can see behind the shanty. 
 
 30 
 
 40 
 
ling tlioro. 
 
 [) to hear the boll 
 1 tlioro for over a 
 
 lo more. 
 to th(i crossing ? 
 
 igiml to stop over 
 not s(!(! him any 
 
 30. 
 
 mins throu<,'h the 
 
 comoH in iuui u 
 orniii". 
 
 in these ordinary 
 
 time ? A, — No. 
 liuiiting is (lone 
 
 racic, the central 
 want to go on to 
 
 '■ time there. 
 
 A.— I do not. 
 v of about 40 or 
 
 A.— Till you 
 
 ore you can see 
 'Ol on the north 
 
 
H 
 
 20 
 
 V^C 
 
 31 
 
 Q.— But if there are cars on tliis side traciv south of the shanty then you cannot sec eastward ? 
 A.— If you are south of these cars you cannot see, but if you are nortli of these cars you can see. 
 
 Q.— But wlien you are north of them you are quite close to the main track ? A.— You are 40 
 feet away. 
 
 Q- — You say you can see them whether there are cars or not ? A. Yes. 
 
 Q.— Coming from the south, approaching the city, suppose tliere are box cars standing on the side 
 tracks around by Maitland street can you see the main hue up eastward i A.— Not till you get north 
 of these tracks. 
 
 Q. — You were going very slowly ? A. — Yes. 
 
 Q — Was it one of these small engines ? A. — Yes, pony engine. 
 
 Q.— How many cars did you say you had ? A. — Five. 
 
 Q. — You heard the brakeman yell ? A. — Yes. 
 
 Q.— Can you tell us iiow near tiie rear car or the front car would be to the crossing of Maitland 
 street when you heard this yell ? A.— I could not tell you because it was dark; I coufd not see the 
 end of the car, 
 
 Q. — You reversed the engine ? A. — Yes. 
 
 y.— How far did you run before the train stopped ? A.— Between 40 and 50 feet. 
 
 Q.— If you were going so slowly and only had five cars could not you have stopped within a 
 shorter distance than that ? A, — No. 
 
 Q.— Was the first car past Maitland street when you did stop ? A.— The first car was across 
 Maitland street over the sidewalk and the second car stood on the centre of the street. 
 
 Q.— Then you went at least a car and a half ? A.— Yes. 
 
 Q.— There was somebody in the engine with you ? A.— The fireman. 
 
 Q. — Anybody else ? A.— Nobody else. 
 
 Q. — Is not there a man named Turten, a yardsman ? A. Yes. 
 
 Q. — Was not he on the engine at tlie time ? A. — No, sir. 
 
 Q.— This is a report made by your own Company, here it is stated that lie was ? A.— He has 
 what you call charge of the engine, we have to obey his orders and go where he tells us. 
 
 Q._What are the duties of the yardsman ? A.— Make up trains and shunting all trains that 
 30 come in on their beat. 
 
 Q.— What was Worth on the end of that car for— on the end of the brake-beam ? A.— We 
 always have someone on the back of the car backing down over a crossinc. 
 
 Q.— What would he be there for ? A.— To give a signal if one was°,vanted. 
 Q.— Signal to the engine-driver .^ A.— Yes, or signal to anyone else to keep out of the way. 
 Q.— As soon as you heard the yelling did you see the lantern wave ? A.— No, sir, I did not. 
 Q.— What did you reverse your engine for ? A,— On account of hearing the yell. ' 
 
 Re-Examined nv Mr. E. MEUEruTH :— 
 
 Q.— Between the main track, where the accident happened and tliis other track, there is no 
 obstruction ? A.— No obstruction but these two shantie* unless there are cars standing upon that track, 
 40 but I di I - ij notice any cars standing there. 
 
mot seu eastward ? 
 you can see. 
 A. — You are 40 
 
 anding on the side 
 ; till you get north 
 
 issing of Maitland 
 could not see the 
 
 et. 
 
 stopped within a 
 
 9t car was across 
 
 B ? A.— He has 
 
 IS. 
 
 ig all trains that 
 beam ? A. — We 
 
 of the way. 
 ir, I did not. 
 1. 
 
 nek, there is no 
 ;upon that track, 
 
32 
 
 MICHAEL DIJKKIN, called by the clefenduiit, iiiul svvoin. 
 
 To Mk, E. Meredith :— 
 
 Q. — You are the lireinan ! A— Yes, sir. 
 
 
 10 
 
 on the 
 
 Q 
 Q 
 Q 
 Q 
 Q 
 Q 
 
 piiifK 
 
 -You were in the engine with the last witness ? A.— Yes, sir 
 
 -Did you hear this shout ? A.-I heard a little of it ; not'niuch. You do not hear so much 
 engine. 
 
 •Did you know the engine was reversed ? A.~Yos, ray mate stopped the enaine. 
 .—What were you doing ? A.— Kinging the bell. " 
 
 .-Did the bell ring continuously ? A.— Yes, sir, I always ring it at the cro.ssin-'. 
 . — It was ringing this night i A. — Yes, sir. ° 
 
 .— How far could it be heard ? A.— Two blocks; five blocks sometimes. 
 -Any other engine around there at the time ? A.— No. 
 
 -From where you were coidd you see anything of the accident at all / X.-~No all I seen 
 was the horse. 1 seen the hor.se after my mate stopped. 
 Q.— That was after the accident hapjiened / A. — Yes. 
 
 li 
 
 Ckoss-Examineu iiy Mii. Elliot. 
 
 Q -How fur nil the line eastward had you been with your train ? A.~We crosse.l tln-ee tracks 
 altogetlier so as to switoli to come down the other track. 
 
 g.— Did you come from the west of Maitland street originally ? A.— Yes, sir 
 20 t^ — The other end of the train was west of Maitland street ? A.— Yes. 
 
 Q.— Then you went up east to Maitlan.l street ? A.- Yes, cut across threes tracks 
 Q.-Whcn you were going eastward how far east did you go f A.-Just five car lenaths „H.rht 
 go a little more. ^ ' -"^ 
 
 tj.— How far east of Maitland street is that switch ? A.— About 40 feet. 
 
 Q.— You had been that fir eastward and then you were backing up? A Yes. 
 
 Q.— That switch is 40 feet east of Maitland street Z A.— Yes." 
 Q- — Of that switchman's house ! A. — Yes. 
 
 Q.— There is a good ileal of shunting done as a rule tliere ? A.— All ni'dit 
 
 t^.-More shunting done in that neighborhood than anywhere else i A.-More d.me around the 
 oO station. 
 
 Q.— Freight business is done uji there ? A. Yes. 
 
 Q —It was a pretty dark night ? A.— I seen the white horse. 
 
 Q.— Is there a light there at all ? A.— What the city gives. 
 
 Q. — You saw a grey hor,se i* A. — Yes. 
 
 Q.— Was that after the accident ? A.— Yes. 
 
 Q -1 )id you hear this yelling i A.-I hear.1 a confusion and I sai.l to my mate there was some- 
 thnig the matter and I went back to the crossing. 
 
 Q.--Did you hear anything before the accident ? A.-Not till ray mate stopped ; there was .ome 
 noi.se when my mate reversed the engine. 
 40 g.— When your mate reversed the engine had not the accident happened / A —Yes 
 
 Q -If your mate reversed the engine the moment h. heard the yell that was after the accident ? 
 A.— It must be after, it could not be belbre. 
 
)t hear so mucli 
 
 ?uie. 
 
 -No, (ill I seen 
 
 ;se(l three tracks 
 
 r lengths, might 
 
 lone iU'ound the 
 
 here was sonic- 
 there was some 
 
 es. 
 
 r the accident ? 
 
"^/ixJu^ 
 
 33 
 
 Q.— Then the yelling was done after the accident ? A.— How could it be ? 
 Q- — Your mate says the nioniont ho heard the yelling ho reversed tlio engine ? A. — Yes. 
 Q. — You say when that was done the accident had already occurred ? A. — Not at all ; it is 
 nonsense. 
 
 Q. — Did not you tell us that just now ? A. — No. 
 Q. — What did you tell us.? A. — I am not talking backwards. 
 
 Q.— You said when the engine was reversed the accident had occurred ? A.— The accident took 
 place there, and here is the horse away off this way. 
 
 Q. — Had the accident ocoun'od then ? A — Why, certainly. 
 10 Q.— When did you first know there was an accident ? A.— Not till we stopped and went back 
 
 to it. 
 
 Q. — You were not going very fast ? A.~No. 
 
 Q.— It would not take very long to stop the five cars ? A. — Not when we stopped from the center 
 of the street to the sidewalk. 
 
 Q.— Your mate said you went the length of a car and a-half before you stopped ? A.— Yes, the 
 men were on the sidewalk. 
 
 Q — When the engine was reversed I understand you to say the accident had occurred ; you saw 
 there was something up ? A.— Yes ; I saw there was something up because 1 .seen a horse going by. 
 Q. — Which side of the track was the horse on then ? A. — The north side. 
 20 Q. — Had the carriage behind him ? A. — No. 
 
 Q. — Then the accident had occurred ? A. — Certainly. 
 
 Q-— When the o.igine was reversed you say you looked out and saw the horse ? A.— Yes. 
 
 Q. — Then the accident had occurred ? A. — Yes. 
 
 I{k-Examined i!y Mr. Mkredith ;— 
 
 Q, — It would take some time to reverse the engine ? A,— About a second ; it is dono as quick as 
 a thought. 
 
 Q.— At all events, when you looked out you saw the horse going away ? A. — Yes. 
 
 Q. — How far east of Maitland street did you go before you turned to come back ? A.— Clear of 
 the switch. 
 30 Q.— Forty rods the last witness said ? A.— You can reckon the length of five cars. We just 
 
 cleared the switch to clear the rail and then backed up. 
 
 40 
 
 JOHN T. WORTH, called by the defendant, and sworn. 
 
 To Mk. E. Meredith : — 
 
 Q. — You are a yardsman f. A. — Yes, sir. 
 
 Q.— How long have you been in the Company's .service ? A. — About two years. 
 
 Q. — You were engaged in this part of the yard that night ? A. — Yes. 
 
 Q. — Well acquainted with the whole yard ? A. — I am, sir. 
 
 Q — Do you remember the night of the accident ? A.— I do. 
 
 Q. — What were you doing ? A.— Riding on the brake-beam of this car. 
 
 Q. —The brake-beam is what ? A.— It is part of the gearing. 
 
le accident took 
 
 and went back 
 
 /V:!!l'/lv.-^^^W'<?ty''?^^^ C^A^ (y~^ 
 
 /<5f <L^ 
 
 
 ,1 
 
 / / 
 
 if/C^L^ ^^(C^a-'iv /t-r-- ^^L-A-^ d-^CX^ lAy<.jua •0^. c»-^C5CZi^ /v.-*-^ /^ 
 
 < t 2 6"^ i-^ ^^<^ 7 /^ -"^'^ '^yLtuj ^u^t (A^ (AT l^ ^^y^c-e^^-^nSi 
 
 DUO as quick as 
 
JV(ri^ 
 
 34 
 
 UO 
 
 i 
 
 as 
 
 20 
 
 30 
 
 40 
 
 Q.— Yoii were riding upon this with your lantern in your hand ? A.— Yes. 
 
 Q.— How fiir had the tiaiii gone east of Maitlaiid street ? A.— About 45 yards. 
 
 Q.— You were coming back ? A.— Backing up on Walker's Siding. 
 
 Q.— You were standing with your light upon the end of this last car ? A.— Yes 
 
 Q. — That was your duty i' A. — Yes, sir. 
 
 Q —What did you see ? A.— I did not see any tiling but the white horse 
 
 Q.-VVhere were you when you first saw the white horse ? A.-Standing on the brake-beam. 
 
 Q._We,.e you on Ma.tland .treet ? A,-No, I was about 15 feet from the cro.ssing diagonally 
 
 Q.-HOW far was the white horse from the track ? A.— Not more than 15 or 16 feet 
 
 Q.- What did you do ? A.-Jumped up and gave a yell and grabbed at the horse by the head 
 gathered some part of the harness. I do not know what it was. 
 
 Q.— Did you stop him ? A.— No, I did not. 
 
 Q.— Why ? A.— Because I could not do it, they were forcing him on. 
 
 Q.— You tried to stop him nil that you could ? A.— I did. 
 
 Q.-How far would he be from the ear then when you got hold of him ? A.-About eiaht feet 
 
 Q--rhey were apparently forcing their hor.se o-; ? A.- Yes, he appeared to make a sprhia jnst 
 1 got to him. ^ " ■' 
 
 Q.— Then the accident happened in the way in which it has been described ? A.— Yes. 
 Cross-Examined by Mr. I'.:.liot. 
 
 Q,_Were you on Maitland street when you first saw the horse ? A.-Just passing the 
 watchman's shanty. pa.ssing the 
 
 happetl^"" ^'"^ ^"'' "°' "''' "^ "'' "'^'"'^ ■ ^■~^"' "" ""° ""'"S "'''' ''^''' ^he accident 
 Q.— Then you had got past the shanty when you observed the hor.se ? A.— Yes 
 Q.— You were west of the shanty ? A.— Yes. 
 Q.— Eight at Maitland street ? A.— Ten or fifteen feet off Maitland 
 
 of the^r^d' "°^ ^''' '''""'^""^''^ "" ^'^" '""-' • ^ -N"' '* ^■''^'' '^^«"t 1^ ov 15 feet from the main part 
 
 Q.-I do not mean the travellmg part of the road, but the road allowance, is not it just on it ^ A 
 — Just about It. J >. . ^. 
 
 Q._You had shot past the signal house before you saw the horse ? A.— Yes, I was past that 
 
 Q.— They were close upon the track ? A.— They were about 15 feet from the track 
 
 Q.— Was the hor.se agitated at all ? A.— I could not say that he was. 
 
 Q.— He was going pretty fast ? A.— Four or five miles an hour. 
 
 Q.— Did the horse see the train ? A.— I do not know. 
 
 Q. — Did you jump oft' ? A. — Yes. 
 
 Q.— Did you run diagonally acro.ss to where the horse was ? A.— Yes. 
 
 Q.— And seized him by the head ? A. — Yes. 
 
 Q. Did you get a pretty good hold i A.-I don't know whether I did or not, I hung on till I .„t 
 close to the cars, then I let go. ^ '' 
 
 fn.J7^''\r\T: ""' ''°''' "' ''' ■ ^■~^"' ^ ''" '"' ''''"'^ ^"^- ^^^ "^'^■■^^l »^<^^ till the car 
 touched me, then I let go. 
 
brake-beam. 
 
 wing diagonally. 
 
 'oet. 
 
 I'se by the head. 
 
 Lbout eight feet, 
 ke a spring ju.st 
 
 -Yes. 
 
 ist jiassing the 
 3U the accident 
 
 11 the main part 
 just on it? A. 
 [ wa.s past that 
 
 ig on till I got 
 me till the car 
 
35 
 
 Q.— This carriage was wrecked as it is described here ? A.— Yes. 
 Q. — There is no doubt about that ? A. — No. 
 Q. — These two men were thrown out ? A. — Yes. 
 Q.— Were they stunned ? A.— I don't know whether they were or not. 
 Q.— You saw thera afterwanJs ? A.— I helped to pick them up. 
 Q.— Were they bleeding ? A.— The shortest one was. 
 g.— That is Stewart ? A.— Yes. 
 
 Q.— Mr. Moore was not bleeding ? A.— No, Mr. Moore got up himself. 
 
 Q.— You thought Stewart was the more hurt of the two ? A.— I asked Mr. Stewart if he was hurt 
 10 and he did not make a reply. 
 
 Q.— You went up the track 45 yards to the switch ? A.— Yes. 
 Q. — With the intention of coming right back ? A. — Yes, sir. 
 
 FRANK G. TUIITEN, called by the defendant, and sworj. 
 To Mk. Meredith : — 
 
 Q.— You are a yardsman in the Grand Trunk ? A.— Yes. 
 Q.— Where were you that night ? A.— About Burwell street crossing. 
 Q. — That is the crossing west of Maitland ? A. — Yes. 
 
 Q.~What were you doing there ? A.— Getting my orders from the yardmaster. 
 Q.~Did you hear anything >. A.~I hoard my mate hallooing. 
 20 Q. — Who is your mate ? A.— Worth. 
 
 Q.— Where were you when you heard him hallooing ? A.— Burwell street. 
 Q. — That is the distance of a block ? A. — Yes. 
 
 Q.— What did you do then .? A.— Both the yardmaster and I came up to see what the trouble 
 was, 
 
 Q. — The accident had happened then ? A. — Yes. 
 
 Q.— You heard the yelling at that distance >. A. — Yes, quite plain. 
 
 Cross-Examined by Mr. Elliot : — 
 
 / (^— Where were you when this accident occurred ? A.— Burwell street crossing. 
 
 Q.— On the crossing ? A.— Right near the crossing on the track. 
 30 Q.— Are you a yardsman ? A.— I got charge of that engine ; I am responsible for what work is 
 
 done by it, 
 
 Q. — You are not travelling on the engine ? A. — N'o, 
 Q- — You were at Burwell street crossing ? A. — Yes, sir. 
 Q.— That is eastward again ? A.— A block west of Maitland. 
 
 Q.--Do you know anything about this casualty report that has been furnished us ? A.— I could 
 not say. 
 
 Q.— You were asked about the accident the next day by the Company ? A, — T suppose I was. 
 Q.—It it said you were on the engine ? A.— That is not true. 
 
 Re-Examined by Mr. Meredith. 
 40 Q. — You did not make any such statement m that ? A. — No. 
 
rt if he was hurt 
 
 i^hat the trouble 
 
 what work is 
 
 A. — I could 
 suppose I was. 
 
ae 
 
 J 
 
 10 
 
 on could Ik ir it 
 openod the door 
 
 (If fourse 
 
 20 
 
 30 
 
 WM. IIEAMAN, called by defuiidaat, and sworn. 
 To Mr. E. Mri.kdith:— 
 
 ^- — Yon ii.i^ II coal and wood dcniur ' .\ —Yes, sir. 
 Q.— Wliore is your otlico ? A.- On M.niUml street, by tiic track. 
 Q.— How far from thi.s track w lia/o been talking of ? A.— Fifty feet 
 Q.— Wore yon in your office that nij,'ht ? A.— I wa.s. 
 Q —Did you hear the yelling that has been described here ? A -I did 
 Q. -What distance could that be heard ? A.- [ heard it very plain. I'suppo.. 
 ft block or a block and a-half. " 
 
 y -Did you see Moore after the accident ? A.- Of cot.rse. hearing this noise 
 and walked to the track. *^ 
 
 (^— Yon are in no way connected with the railway ? A —Not at all 
 Q.-How was Moore ? A.-Moore was standing up when f got to the track. 
 
 he coln:^;: a; ti ' '-' "" "" ^-^^ -'"^^ --^'^-- -^ - -'- ^^ i^ ^^-nk 
 
 course -r^riui"";-,;"' ^"" ""' °" '''" '' "•^"^ ' '-' -'"" ""' ->' '"^ - ""»"^. of 
 Q.— Pretty strong ? A.— Yes, pretty strong. 
 
 Ckoss-Examined ity Mu. Elliot:— 
 
 Q.— Where were you at this time ? A.— ' my office. 
 
 Q. — How far was that from the crossing ? A.— Fifty feet 
 
 Q — Did you hear the crash ? A.— 1 dkl. 
 
 Q.-How loi.M was that after the .shouting / A-I li.anl a continuous shontin. and about . 
 nunu^ or two after that t e cri.h came. Of course I was on the road when I hear.l th:c ^ . 
 
 Q.-Yon don t mean to tell ns there was a minute or two elap.se.l between th. hallooin< and the 
 crash, because this yardsman told us he ran fifteen feet ? A.-I should iudge it would Z'nutr 
 two or three minutes the continued yelliiK' and then 1 lieonl tl... .,. i i '" ' "^ "''^ """"^^S; 
 
 yelling afterwards. " ' "'" '"''''' "'^' "^ ^^^urse there was 
 
 Q. — Then yon went out r' A. — Yes. 
 
 Q -You saw these two men on the track ? A.-Mr. Stewart was on the track ; he had not been 
 taken up, ami Mr. Moore was standing uj). ^^^^ 
 
 Q -I suppose you thought Mr. Stewart was drunk because he laid there ^ A.-No • I expected 
 we had found a dead man. J^^o , i txpecreu 
 
 <.J.-Moore was np and you thought he was drunk ? A.-Mr. Moore could walk 
 
 Mevl7 TT^Tr'^'i T" "''""'■ ""'"'" ^ •^"I'P-eyou thought he was d."nnk^ A -Mr 
 Mereditli asked me if I smelt liquor on him. "^ ■ -n.. mi. 
 
 (^— You judge that because you smelt liquor ? A.— Yes. 
 
in»s:ii^.s^- ■" "i?BES5ISE 
 
 Oil could Ik ir it 
 openod the door 
 
 ink Of foiirae 
 10 was (Iriuik, of 
 
 g, and about ii 
 crasli. 
 
 illiioiiiir jiiid the 
 1)0 two mimiti's. 
 mrso there was 
 
 e had not been 
 '^0 ; I expectod 
 
 nk ? A.— Mr. 
 [ supposed Mr. 
 
10 
 
 87 
 ANDREW JARVIS, sworn. 
 To Mh. Mkrkdith :— 
 
 Q.— You aro a o-nniiigo-makor ? A.— Yea, air. 
 Q.— You saw tliia biiKKy < A.— Yes, sir, 
 
 g.-What is your estiniato .,f the value of the buggy / A. -The way it is at present ? 
 Q-What w.a,hl it iH. worth before the accident/ A.-I could not say what it was before 
 because I did not see it, """j»o, 
 
 Q.— What would it cost to repair it / A.— Thirty dollars, 
 
 Q.— Put it in us gowl shajw as it was Ijeforo / A.— Yos, better shape. 
 
 R. M. Mekeuith— I desire to renew the application for a non-suit. 
 
 The CouRT-Of course you will have the benefit of your motion whether there is a verdict against 
 you or not, so you may as well go to the jury. ** 
 
 Mh Mkiiedith— Does your honor rule as to the question of the buggy ? 
 
 The (-cukt-I should be disposed to rule against you, Mr. Elliot, unless you have some authority. 
 
 nr, nof ''■ f''''''"~} f"'"'"'^ POBsossiou of goods Constitutes sufticient ownership for a person to brin- 
 an action for any tort or any injury. t- i •• tu uiui„ 
 
 The CouUT--Perlmps it w.ml.l b.. just as well to allow the whole case to go to the jury and then 
 speak to this motion aftt^r wards. ^ ^ 
 
 If' 
 
sunt ? 
 
 it it was before. 
 
 I verdict against 
 
 some authority, 
 person to briiij,' 
 
 jury antl then 
 
S8 
 
 JUDGE'S CHARGE. 
 
 Gkntlemen of the Jury, 
 
 railways to be ,„ade lilce a netw^ovic ^ ov t „ It "^hl "^ tf""'^'"''^ '" ^^^™'""'^' "'^^ 
 they oonie across these railways that it is ueclJZ 7'r. H ^ '''" '"'" '™ ^"I'l"^^^'^ ^^h'^" 
 be some da,.ger ahead. It is u-cessa y tlT rsh 1 • "" "\ "'""^ ^'^^''^'^^^ ^^'^«" ^^ere may 
 
 10 for the purpose of savin, themse rf v e Lt^^^^ ""i^'" "•'""'^' ""■'' ^"•^'■'^" -'^' '''"g-'- 
 severe, accidents n.ost"n.e,„ent;:j;::^S^^:;t"^;;:w ^^^^^^^ '^^" ^^""^"^ -"^ 
 
 neghgent in this particular instance to son.e extent bu if L > M .'n , T "'^ '"'^ ^"^''^^^'-^ '•^' 
 case of that kind it i. called contributory nealLn!.' V ' ''"' '''''" "^«''»''"' '-^'^O' *" a 
 
 a case of that kind the law does rprrfn itt f T\ ""^''^"^'^^ ^" ^^^^ 'accident himself. In 
 
 no right to run n, the n.ce o u 1 'T^ ^.'' ^ ^ " '^ ^'7" '^g'"-' ^'- -i^way. A n.an has 
 the insMncts of his nature to tal Jc re In",^^^^^ "^ disown life; it is one of 
 
 thing that suggests itself to everv'^l , ^l, '^'"" e-n the presence of danger the first 
 
 That 13 the foremo.st i.iea in ev^.y o,^^^'^^ m^ or he will ,et into trouble, 
 
 -■-^.rv .aution and prudence to o ^ ^ ^ k^' a '7;;'"''? ^^ ' '!"" '' ^"^^'^^ "^ «^ 
 2C iv.w.;.Un. case it is alleged, in the first ulace thtV T '' '" "'" '"''^^^"^'^ "^ ^'^"Mei- 
 
 which the liailway Oon.pany deny H he;";v T "" "" '"%''^""" "" "" 1^'"'' "^ ^'^ -'-^7- 
 there was also neghgenc on the L t 'Zti ' " "'^f, "^^'^!g-^'^ "" ''^ P^'^ "^ ^'^ ^aUway 
 hearing the whistling or hearing t!.e b ZtZ mu:;in ', '"' ' 7 ""'• "'^ ~^' "^^ 
 exerc.se great caution. He should not Inv.r nl, , "'"' ^'"'^ '">'• ^'"^^ '^'^ ''^'T'"'*-^*' to 
 
 of the e„gn.e, son.ewhere in he 't" Ij' ^,, "^"' ^"Tf j! 'f^ '" "" ^'"'^ '^'^'"' '-"-"the bell 
 bell ringing, there is no doubt . J^Xt hi.™ i ll' , ""■"^^"'^'^' "^"^ ^^ '^'^ '^-'^« ^'-- -« 
 
 approached the track, an d if there was ,u\t^^^^^ 
 
 -»''^nh^yT;;;nmiTarnc 
 
 30 oYe-nHri^ad. and by doing that cT^'da:^ n^g^ t ^ ti: T:';!':::^^'' ''"' '"" '^'^''"^' 
 of engines, they were not takin- tiiat conr.o fh / .• ^^^'^ ''^'I'lcious movements on tJie part 
 
 fton. their ow.f negligence I ".1^. "d 1 7 T "'^'^ ''"' ^"^> ^'"^ '^'^'-^ -"'t-l 
 
 thedefenda,.two,dd^.ot be U e r ; Tv';;' '/; r""'';''"'^ '"^'^'^"^^ '""' "-^^- 
 opinion supports that theory, th^ ^^.'t^ J Jt^tV^r "" -'''-- in your 
 
 .inc^ie governing cases of th.s kind would ^i^^ j^^: ^ t: irrs.r;;:::!;^ 
 
11 tiieao railway 
 e railways are 
 lie laws of tlie 
 jrmittiiig tliese 
 suiiposod wlic'ii 
 'hen there may 
 
 ami diligence 
 generally very 
 ay perhaps he 
 igent also, in a 
 nt himself. Fn 
 ■■ A man has 
 fe ; it is one of 
 langer tlie first 
 ^t into trouble, 
 tables men of 
 ice of danger- 
 f tlie railway, 
 f the railway 
 
 crossed there 
 le required to 
 aring tlie bell 
 nts there was 
 e got out an d 
 I judge if the 
 itead of doing 
 been driving 
 s on the part 
 Jent resulted 
 nd tlierefoi'e 
 ence in your 
 well known 
 ver damages, 
 n to, in the 
 ion, iuid also 
 
 I 
 
39 
 
 -.3^ aa...... ...ever ,.,.e. „, ^ ,,.„. ,,, ,, ^.,^^^^^,^ ^^^^ ^ ^^^^^^ ^^^ ^^ 
 
 w. ^it:i t:::f ,::::rt5.: :i^^^^^ ;;-::- 7 - -. . .. .,. .,., .. 
 
 evmence was, and it is not necessary that I slo Id ( we i /. -V^"" ?"' ^''''' >'«" ^^^^-^ ^''^^ the 
 c^ently fesh in your .e.nory, and tL eloque t" Ur ^:^^' ^ ''^ ^f ^ ^— it is sulH- 
 
 leave very l.ttle for me to say to you in re nrd to T , " '"^'^*^ °" b°*'' ^i^'es, I think 
 
 ■ory brief in what , do say ^on fhat ^ ^ The .t ^^7^'"' r :"'' ^"^■^^'°"- ^ '^h'^" ^'■' 
 yardsnian standing at the end of this ear th.f ^ u '^'^'°" *° *^« b'^'' ri"8i>'g, there was i 
 
 10 hand. They say ;:„.ther that w.l: T X ^Z:tr:tm'''f ^1 ^'^^ ^^ '^' ^ '-^^ " - 
 engine was backing near this man, he say! Ts^o ted or ve W " . ' "" '"'"^^ ^^'^^^ "''^^ ""^ 
 hold o the horse by the head, endeavoWn, to ketph, n back U " '""•^"' °" ''^'^ ^"^'""^ ^^^ ""^ 
 onward. It is a .juostion for you to decide whether th ^ i. . u' ^'''''' '" '^'' ^'^S^y forced Wn. 
 had his wits about him. because we canLt it ' ud^! H H '' ''^ ''''''''' '' ' -«^'-« -an who 
 >nan has his wits about lnn> or not. A ml„ ^ j, tel"^ ' ^ """°* '-^^^^^^^'^ *^>' ^^ether a 
 
 otherwise he should not be at large. EverLt, fZT '^ rT"""^ '" ^'''' '"^ ''''' ^^out hin,, 
 and ordinary caution. Now, the questij.for y .3 5 d L e 'T'''' "' "'^''^^•■^ "'^'^'"'8-- 
 
 beheve that evidence, did he exetcise ordillry aSion a 1 ' T" '""" '''' "'^'"^ '^^'^'--> ^^ y- 
 horse forward when this man was endeavuHXT .^ H T' "' P"''""° °" ■'^"'' I'>-'^««i"g this 
 
 20 from the railroad, and the cr was ab u th H, ^ t "'' ^''^'" "'^ ^^'^« t''«» '^'-"t ten fee 
 railway. Now. the second auestioi; s^ d 1^^^^^^ f-" ^-at particular part of the 
 
 buggy, jump off before the horse go as fa aT U e tm ", 'J' T' ''"''"^^"" ^'" '^'^'■^'"^^ ^^'''-k ^1- 
 
 =^tt:;: r-' -^ - -- ^^ -"™ - -i^ri ::r-: j-r ;ri;: 
 
 piain;;?'^:^,:;;4r;i;iS ;trr,:';:rhr7 r- ^"-'^"^ -^ - ^^'^ --- - ^^ 
 
 support the aflirnuUive of that question they ,.1 '^'"" '" '"'"^ ''^ ^^"'^' ^he accident / To 
 
 Burwell street, and he heard the'man si Jut' 'u\:::^Z u./T T 'T '^ "'^^ ^ ^'°°^ ""■ - 
 
 or you to consider if this man. who is only ten or fif^e Z ft t T ""' "'' '' '' ' '1"-^'°" 
 
 siieeti J-* "L nearu nun a block away at Burwell 
 
 4th. If the defendants were onUtv „( „.. ,1; 
 was. If you b.dieve there was .^^ ^ w ^d'k: t^T? 'T ?''"'' ^'^''^ ^'"^' ^'^^ -g'^g-ce 
 you gentlen.en to assist me in getti^.g^at that v c L, Y " I, " "^^ '" '"-"'"""^^' ^-'^^ ^'^ ^ -k 
 ". your opinion, what negligent. deLdantl .v'e gum; „f "" '''''' "''^^ '" "'"'-• ''-' 'luestiou. 
 
 i-npo:;:;;. t:':; z^:^s\:'::i:z::t7 ^-^ ""''- ^ ^'^ -^^-^ ^ ^^- ^^ a ve^ 
 
 mi.es a.1 hour we all kno^ there woi^ ^ ::2 i ^ ::'i. "" '^'''' "^' ^' ^"" ^^'^ "^ ^^^t or J 
 
 was only backing up at two or three mil. r, ho" Th "uJ '"' '""''"'^ ""^" ''' ^•-' ^-•-■■' 
 
 40 view that the train was coming in at the rate uZ.o,Z:'Sf ^'"'r"" ''''''''' "^ '^''^^^ ""' 
 
 for you to say in answer to that ,,uestion then. "' '" """ "'"'^^ ^n hour. It is 
 
 With tp^ir^rSift ri'rtii'v'i "'"r- ^- -•"--- ^- ^^ given 
 
 ^»"g^''- ' '"""^ '•'" ^'''-'' '^^-^'"•<^ '■" the fac of the approaching 
 
t I shall put to 
 
 ?ine ringing, and 
 heard what thu 
 3ause it is sulH- 
 'i sides, I think, 
 ion. I shall b,. 
 ;iiig, there was a 
 a lantern in his 
 rack where this 
 engine and got 
 iggy forced hini 
 tions man who 
 i say whether a 
 ts about him, 
 ry intelligence 
 ^'idence, if you 
 pressing this 
 ihout ten feet 
 H part of the 
 iiiat struck the 
 ip, and did he 
 )r you to find 
 
 ti'ack, and if 
 ;cident ;* To 
 block off, on 
 is a question 
 )n he did not 
 K at Burwell 
 
 It negligence 
 iS, and I ask 
 lat question, 
 
 lat is a very 
 "ight or ten 
 if the train 
 favor tlie 
 liinr. It is 
 
 n be given 
 I'proaching 
 
40 
 
 certain class of e.pert e vidence-profe.s.sional evidlC i !. it "?' "" '"' ^"'•" ^''" ''^^'^"^'^ «' '' 
 cases wl.e,.e damage is clai.ned for personal inju^ th ^l 'J " . "' "-'r"'^- '" ''""'''''' ^^-^^ 
 generally te 1 b, examinin, the „.an whether he iLn '^k or ^"1, \"" "'" '' ''''"'' ^^'"^ -' 
 have methods of exa..i„i„. a n.eans of k„owi„. a ™ ll 'f '"'"^''''^"'' ^^ ^'<^""'"^'- '^'I'^y 
 
 elanvthing about, but they have the facul ;^ ^ ; tlV '''" '"' "'' '"^-'^ -nnot 
 purpose. It ,s very easy tor a man, when an accide ha take , "^ ^ °"r''"^ ^^''"'"^"^ ^^^ ^'-^ 
 because no one can enter into his person and jud^e tts M W 7 ""' ''"' '" '^'" '"'^» '"J"-'- 
 10 except these people who are experts and who ea^ by „ „ ^ L"f '''"- "' J"^'"" "^ ^is symptoms 
 IS shanmnng or not. To avoid any danger of me^ bei ,2>w T T '^ '""'' J"^'""^ ^'^^'^er he 
 
 ronUy never sustained, and which it would be n'i^S 1Ztn''"''''''l '" '"J"''"'^ ^^"'^'^ ^'^^ f-"' 
 some persons into the box who can give some ev'd n '^Z ^"''' " " "'"''^' '" ""-'^'^ ^'^^'^^ to put 
 
 man who says he has been injured. In Scase t e ev ""'^ '" '"'^"'"^ ^'^ •^*^^'-"'^"t of he 
 
 -ferring to this as one of these nutters latTa be ^^^ ""'' 1 f"'^^'^"^ ^°''^«^^- ' ^ ™-' > 
 ";entn,g upon it and in the way the learned co "el com'nteTr" "'v ' " ""^ ^"^^^ ^ ^^ -'- 
 statement to enforce a claim for damages. '^'^•"mented upon ,t. You have only got his nake.l 
 
 8th. Assuming, for the purpose of this (.uestion fhn^ h 
 
 previously referred to. ' ^'"^ '^'■^'^ '^""g'^ '■" the other matters that I have' 
 
 10th. State what damages was dnno f„ fu u 
 
 .would ask you to con.id.; uXlSt^i^rrr ^Sh b ''' ^"^ ^^^^^ ^^ ^'^^ -^^' 
 whether it is a proper claim or not that is rem..v.d thrl ^^ '''"'"" "^ '''■'^t. I„ regard to 
 
 argued before myself ""'""' ^"^ ^''^ P-'^^'^^nt tune from you and will have to be 
 
 prudence and o^in^T^l^^.r^idvii;; a'L."^ "l^^' ovI-Trr'^'t " I" """'"' ''^ ^^"•^'«'"S 
 
 " .'^oe^:r r!;:r ::.;^^^ -. „:.;::, I have .. a su^dent 
 
 course you will be guided only by the evZ^ .r:;^^^^^^ oJ 
 
 sympathies are concerned I need hardiv say it wo ,ld JM r ' *" ''*' ^^"'''•^'^ ''>'■ «« far as 
 
 nioment to influence your iudgment. " You a e 1 eThtttt ' '7'^ '^^"''^ ''''^^ '"-' 
 
 at all or to sympathize with one party .,r the o^her f i "'' ""' '" "•'^^^' '" "^"tside matters 
 
 sympathy on the other. A great deal has b e s d . !" '"""'""^^ "" ^^""^^ ^'^^' """•'" '"ay le 
 
 stmng opinions in regard to ^ilwayco,,^,! ^'.,h ^ '""" ''^'•'«^^'>' -" that Juries d,?'.^ 
 only to themselves, perhaps suflici^it tJ ™m n " ' ^' 'r"'^ f^'' "^^"'^ ^'"^ — '-"- 
 stand. These corporations represent hun.ired a ,, ,d of 1 "'T' ""^''^'" ^""""^ "'"1- 
 40 earnings; inany of them are orphans and manv of t le ^ ^ r*^'*^ T'" ^" ''^^'^'^'-^ "l-a then, 
 you are dealing with, but you are dealin. .|ire;tl v w t h . ■ . " ""* " '^^'Toration withr.ut a soul 
 
 your syn.patj.y as any pe. ,on that ever ;J :tt::':r';t;;;T "' ^"'= '"'' "^ """^" '^"^'"^'^ ^ 
 •-"---P«.-i the want.. pi.uden..niniak,-nv/';;::,,tttrc-^^^^^^ 
 
r? Well, there 
 riie abaeuce of a 
 ilrao.st all these 
 ictoi's who can 
 gemiiiie. They 
 myself cannot 
 ad need for that 
 3 been injured, 
 hi8 symptoms, 
 Ige whether he 
 lich they hav(i 
 se cases to put 
 ternent of the 
 I am merely 
 y I am com- 
 got his naked 
 
 le defendants' 
 the plaintiir 
 
 md could he, 
 tliat r have 
 
 o{ this trial 
 In regard to 
 1 have to be 
 
 « exercising 
 
 •1 sutticient 
 I.'.- for. Of 
 So far as 
 hat lor one 
 ide matters 
 ure may be 
 ies do talve 
 ises known 
 'lot under- 
 npon their 
 !'>ut a soul 
 entitled to 
 "Ullerinjr, 
 it is very 
 
m 
 
 h) 
 
 20 
 
 41 
 render full comulcmtb,,, ,„d I will ask vc, l„ in ^ ill ,■ , "" ""'" '"" »■'" S»'« "» 
 
 "* ^- •-» e'-tfc. and coje ji: :::;:,;,'z rr:;,;:::'' ^» ' '-*• »• «- »■■" 
 
 a., illL^raTsw:,';,!'!!" "''■'"■"""■" '"'■ '"■' "" ""*""-' if "■ y«" will put tha. dow„„ 
 Jury retire. • 
 Jury return. 
 
 4 T', , I'"'"""-''''"" ""« '» flvo mile, „„ ,,„„,. *■ 
 
 Eleventh— Ye.s. 
 
 Mk. Ellk.t— I move for judgment. 
 The CoriiT-r will hear the niotiou to-morro,v. 
 Court adjourned at H p.m., till 10 a.m. to-uiorrow. 
 Thursday, -h.ue 12th. fourt ope.ied at 10 o'clock. 
 
 .hich the railway ha. di.e,a.,i no juc^nl::: '::.:: :: ^^^ '"'' ''^'' ^"'"^ ""'^ 
 ■■'"■; n.lo.s ],y which the milway must he run Th.-v " "' ' ^■'"'", "" '" ^'"' ■l>"T cannot formulate 
 U'ing. What the statute ,roL. .U Z U^ JZ'\ 7 T ''l "•'"^^' ^'^'^" '''' ^ -'"-' 
 conceded, and I need not a gue that tin i v ^ ^ "■ """'' "' '^'' ^^^ ^''"^'^ ^"^'^1 ha.s 
 
 •should be a watchman there^ At .^l e e t , e L^^'^^^^^^^ " '" ^''^'7 ""' ^""•^''"' ^ ->' '^^^^ ^i'- 
 learned Hiend can a.k you to pass jud-Zu hi ,r" h' ^" ""^ ^""^ ^^ '^' -'' ^^ ^l-t nu 
 
 J .n.ent n. hi.s iavo, „„, ,s theanswer tothe fourth .p,e.stion, ' If tl,;. 
 
, gfiitlemeii, the 
 on will give the 
 'Iv iit them and 
 
 le jury lielieves 
 it that down as 
 
 1 clause — Yes. 
 ! accident. 
 
 tiie plaintiir 
 Vinir Hunoi' 
 Jiice (jii tile 
 
 I upon tlie 
 there is no 
 .' breach of 
 some duty 
 
 ! formnliite 
 ' 'I cerliiin 
 friend has 
 that tliere 
 
 II that my 
 1, 'IfthV 
 
 !>: I 
 
 I 
 
4J 
 
 ti^r:.:;;' !:;r/:;;;i- l:*;;::^.7r;:^ i;'^ -^ -• ^^^^^ what ..t „eg,i,e„ee .. . t, . 
 
 Company or the plaintin; ^ '^'^ ""' '^-- -Aether that is inte.uied t^o Tuea,' tlr RailJ;; 
 
 The Couar-I fancy that meant the pJaintifl: 
 
 to th^iS whld: h^r;;:f ,;l:r^'f ^'"^ ''^-'""- -■-t waning does the law ,.e,ui,.e to h • ' 
 their skill w„„l.i |,.t fl.o.r •"''"' ^""ct'ive, Your Honor th'if th. ^ '"' ^'^'-^" 
 
 "'*'« "P".. the plaintiff. U was „lt or th I "'' ^'^'^ "'^ °""« «^ P-'oving the be I ' °"'" 
 
 ■«io„ o„,|,l „„t I '='"•'' ■ Tins ti»i„ „.a, „„,„ j,v|,i , "-'""» ''»"' o™ry placo 
 
 "-<■ i".y.».if..„Tti ,.:;;:;'■ '7 '■' ,"""""'"« "■«'*« w^wnri ''""'■";■"«• '■> "« 
 
 bivncl, „r ,|„i,. „, „„ ,, ■ ""'">' '»' I'S ap|,l,cablc t„ this ™ a,„l ,),",„ ■ """""'■ "°" ''' 
 roiinhv a ,,,1,. ■"'•^■""«» l»is iud.ic no claim ,„ ,,,„ „,.,,„,.,, '^'''' !■»'* »t the facts of 
 
 i" "".■ a .; : :: °'""" ■" "» ''»'»««- .t an if hi , , ' • ":: """ "™^ ''-•' u- 
 
 ■McN«,„c, ;,,„ ,2 " " « 7* "•.>ki%.. fro,,, „,,„„, it , t °;,r, ""■ ""t^ ">« i«"""' 
 
 .. ^I" K, uor-_Tlu. ,j„,^ ,,ave h.M H... ;. .... ... ,- "" '' """' "^ '^ ""'^ «^- 
 
 4(1 
 
 I 
 
 -"•-. - u. piaii'"^ r: ;; ,:"T ' ^^^ "^^^•^«'- - - -eh as t^.y .w not • . 
 
 j'''^'"^ ^'-t when the 1.1, is ^.X' an"' ' ™"T"' '''^^ ^'"^ '^«" -- "'n^ IW " "'""'"'^ 
 
lice was ? That 
 !an the Railway 
 
 lii'e to be given 
 ^ gone as far us 
 '- 110 doubt out 
 'Ve will discuss 
 against us. l 
 
 the defendant 
 it is not for the 
 
 <luty. Now 
 icient warning 
 1 have been, if 
 to the ringiiio- 
 us not ringinc 
 SHing; there 
 :one that fai. 
 tiiitiff has not 
 are unable to 
 311 that point 
 s sort. The 
 in the yard, 
 
 every place 
 '»g. so tliat 
 Slid, oven if 
 ''iiig of any 
 niit to Your 
 
 the facts of 
 ly from the 
 he plaintiff 
 ill, and Air. 
 •e. What 
 
 got judg- 
 ', he has a 
 
 only .S^.'i. 
 
 sufficient 
 L' conteni- 
 
 evidence 
 iid lieara 
 
 IgilU! WA>i 
 
 'istead ol 
 ■ If this 
 
43 
 
 -ngin.. w.,re con,i„g f„re,„o,st, an.l they Loan! th^ Iw.Il ,.• • , 
 
 Hubnnt. . .....licence, .uul that is wh.t tho iuvv ^::^:ll^:''.T''''': "•«^" «r« ^hesu six oa... Th.t, , 
 
 Hubnnt, ,.s .....hgonce, .uul that is wl..,t (ho jury t . , " 7'""^ "'"'"" ^'^'^ ^^'^*'" ^''^ "■^••^- '' 
 TiikCouht ('..„N '""^''"I'l'^l"'' who,, thoy misworod that , .stion 
 
 to a^;th:::^;;r ^"" ^-^^^^^ -^"""^ ^'- -"• ^^ "-..^ ^y t.. co.,., _ tCL, .„„ 
 
 l'^-^^r!:'-Z^'!!;i^^^^^ ;^^ end of that fain ,o,. the ve:y p,.,„.e of wan.i... 
 
 40 or 5„ leet. I thin, th.,, ;,, ,!:;' , t ..Zi;;;:: ^^ "- ^"" ^^"-"'«' «« '-'y •>" "^ 
 
 position on that car where he hin.solf saj.s l.ocl^^Vf "''"''- ""' '"^'""^ "' ^'"'^ '- take.su 
 10 unless he was ri.ht npon the sfeet. Now', wt say h "'I ' r'" ""'"" "'^''"''^•'"'^' "- ---•.' 
 -M-y "my not hy law be >.e,.,i,.ecl to 1 ave a wat 1 ,71 T ''""' "' ""^' """•"«'' "'' 
 
 the approach of a train, and the ringing of a bell It' ^ '"l "" '■'"'""'"'^ '"' ""'^fy I'^ople of 
 Wybody knows that in that ne gi;.r ood y „1 1^' "J'^ '' ^ 'T] - "ot sn.licfent nl.ic. 
 know whether the train is con.ing towards yor,,,^ ^ " T ^""^ ""^''"°- ^°" '»■' '"" 
 -eard a bell sonic distance off". They were ife tly^wl T T '^'- '^'''''"'' ^'*"' '^^ t'>""«''t 1- 
 to assinne there were tive or six frei^.t ears U^ki:;!^:^:^:;: "'"''"" '" '•^■^^' '^'^'^^^ »>"" "-'^'"t 
 
 «^.u.t!:g^Z[ mi 'r'lirt LrrtVt^\;r;;'"^V'^ ^"^'^"^"^ ^" ^^--^-^ ndsisa 
 
 n.ght and day ,f there was, and that wa te ail L;^^:' ': '"" ^"^ " -^^•"-' ^"Pt In that p,: 
 20 .ay l,at wonld be evidence of negligence on the p fo H., " ''''""' ?"'" '"'^ I-^^' ^ ■^'"'ul'l cert inly 
 -U^hnian eft the shanty. Conse.pLntlv it wa! f n L i:,'//""'' '" "." ^^'^'"^■^^ ■^-■'' '^^ '■■'^ tin- 
 fat g^^ had a perfect right to expect that they Z:i^:Tl:Sr' ^"'^ ''''' ^^^^ "^^"^ 
 Mb. ELLioT-It is one of the highways of the city 
 
 ^^,^j;. W-Theyhave.3tas ninch right to noti, the pnblie as tl^ public have to .ok ont 
 
 The Coukt — Unlessthere are tt t 
 
 I . — »" "" '"V 
 
 MS expected (.f them. 
 
 rung 
 
 A 
 
 Mk. KLLl0T_TI,e ,l,u„to V un^i^^T '"" " ^■'"■"" t«v Vvvhio n. ? 
 
 I 
 
 a. »';:.to7;:,^™f:'Tzx^^ ■"• -."-y p-o.«o„ .w„. .^,, 
 
 ■•y .1.0,, „„„„o„ „,.e ,,, „„„.,„. „„y ,_^^ ,^ - . .,«.y av„ f„ „,. ,„„„ ., „ ;y 
 
 Thr Conir— I ,nit fh.t , „ , r . , accident by caution on his part 
 
> ftm|>l(' time t.. 
 < cars. Tl,!it, 1 
 il'iestion. 
 
 I) than thoy (li,| 
 
 osc of wnrnitij,' 
 "Illy hail to »„ 
 that he takes a 
 ig 'liu croasini,' 
 t although this 
 f>tify people of 
 llieient notice. 
 You ill not 
 he thought lie 
 r had no ri<»ht 
 
 ly- This is ji 
 in that place 
 ulil certainly 
 1 fit 7. .SO this 
 -I'aou passing 
 
 ' to look out 
 
 tlE tllpjury 
 tt is (i\l thsit 
 msiom ? 
 
 ill is to he 
 
 ' S'ly, as a 
 
 'efoi-e thoy 
 'eyligence, 
 
 '■r a special 
 assistance 
 2 attaclied 
 they gave 
 
I 
 
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 ^: 
 
 %. 
 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
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 Photographic 
 
 Sciences 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, NY. 14580 
 
 (716) 872-4503 
 
 q^ 
 
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44 
 
 -n'^' ^^'z;v:i:::zz:z^':^^^ > ^y -y ^'^ - not su^eient 
 
 favor of the plaintiff, and I move for a verdicT dTw H T "u ^"'^ """^ '''^^" ''"^^-'^d in 
 to recover against a wrongdoer? ^°"' """"^ ''°'^ '^at the bailee is not entitled 
 
 donJtL:irn;i::;:;i^£:^:;,:^- I-.tell ,ou when theti,ne co.es. r 
 
 these facts could stand five minutef arguZ thi 1 1 'f f I"->'»« --y verdict found upon 
 
 c ose of the case, but I wanted this cTse to go t he ury o U,; ' '"^"'"' " "°"-^"'^-^' '^^''^'^ 
 theu opnuons upon the facts. I think upot all the fi fdinl ^ ^"'' ,'""' '^'^^"'^'^'^ ^^ §^""'8 
 10 evidence whatever to support the presumpL o n g i„! "Tnd rt" 1%"^ "^'. " '''' ^'^^^^ ^^ ^^ 
 afterwards to set aside the verdict, if I should enter a verdS I sho. Si f 1 ' '^'" ''P^'^^""" ^'^^^ 
 verdict. I may fe.l that if I ,,fused to do so that the Cou^ o A T '"If '"'"^'^^ "^ ''' ''^^' ^^e 
 Therefore it becon.es unnecessary to decide that c ue t If h ^'^r" """"^^ ^'^''^ «°°» "^^k^ me- 
 
 If I am not correct my decision of th s n 'tte cln ? ''' ^ ''"^ "'''' '^^'^^^ ^« "« "^gligence 
 
 .jurisdiction to do so. ''"'' "^^ "^^''^ ^ ^""''^^ted by a court having competent 
 
i not sufficient 
 1 answered in 
 is not entitled 
 
 me comes. I 
 t found upon 
 suiting at the 
 >ly of getting 
 sliape of any 
 iication made 
 set aside the 
 lu maiie me. 
 10 negligence, 
 g competent 
 
46 
 
 QUESTIONS TO JURY AND ANSWERS. 
 
 1. Q,-At the time of the accident and for some time before was the bell of the engine ringins and 
 was there a man with a lantern standing at the end of the car ? Answer to first clause-Not sufficient 
 evidence. Answer to second clause— Yes. 
 
 K f \?'7^'^ *^ ™*" '^^^"^^ ^' "^^"^ '^*' "'^"'^'"8 °" *^^ ca^ tl>at struck the buggy, jump oft' 
 before the horse got as far as the track where the train was backing up, and did he seize the horse by 
 the head and endeavor to keep him from getting on the track ? A.-Yes, but not in sufficient time to 
 prevent the accident. 
 
 ir> » ^^ ^■~?J*J *?"* "''" '^""^ ^^°'^ ^^^ P^^"'*'^ g°* "" ^^« track, and if plaintitt> was paying 
 10 attention could he have heard him shout in time to avoid the accident ? A.-Yes, but not in time 
 under the circumstances to avoid the accident. 
 
 4. Q.-If the defendants were guilty of negligence in causing the accident state what that 
 negligence was ? A.— That they did not have sufficient wainincr 
 
 5. Q.— At what rate of speed were the cars backing up at the time of the accident ? A -From 
 three to five miles an hour. 
 
 6. Q.— If your answer to the second question is in the affirmative what explanation can be oiven 
 with respect to the plaintiff's conduct in forcing the horse forward in the face of approachiua danoer ? 
 A.— In his anxiety to get out of danger he did what in his judgment was best. ° ° 
 
 on , ^^ ,^'^~^^^ *^« plaintiif injured by the accident and what does the injury consist of ? A —Yes 
 20 but evidence not decisive to say extent. •• ca, 
 
 8. Q._ Assuming, for the purpose of this question, that the accident was caused by the defendants' 
 negligence through no cause of the plaintiff, what damages, if any, do you consider the plaintiff 
 sustained by reason thereof ? A.— $25. ^ p«uiLi.i 
 
 9. Q.-Was the plaintiff at the time of the accident capable of taking care of himself and could he 
 by ordinary caution have avoided the accident ? A.-To the first clause, YeS ; second clause, No. 
 
 10. Q. — State what damage was done to the buggy ? A.— J40. 
 
 11. Q._Would a cautious man of a dark night, under the circumstances in evidence be 
 exercising prudence and ordinary caution in driving a horse at a trot over a railway track ? A.-Yes. 
 
RS. 
 
 ringing, and 
 ot sufficient 
 
 ;y, jump off 
 he horse by 
 lent time to 
 
 ivas paying 
 ot in time 
 
 what that 
 
 A.— From 
 
 n be given 
 
 ig danger ? 
 
 A.— Yes, 
 
 efendants' 
 e plaintilt 
 
 I could he 
 
 No. 
 
 ieuce, be 
 —Yes. 
 
46 
 
 JUDGMENT. 
 
 costs. 
 
 Upon the findings of the jury on the questions submitted I 
 
 June 17th, 1890. 
 
 (Signed), 
 
 enter a verdict for defendants with 
 R DAVIS, J. 
 
 REASONS OF APPEAL. 
 
 1. That the learned Judge submitted certain (luestious to the jury and thev liavina fnn,„l fV, 
 
 10 
 
 done. 
 
 That it was not competent for the learned Judge to disregard the findiugs of the jury as ho has 
 
 is wrong^lT'lf; ^'"''""" '''''''' '^ ''' '^'^'^'^ ''''^' '^ '^ ^"^-d - ^he special findings of the jury 
 
 4. That the question as to what the negligence of the defendants consisted of could not be 
 a swered by attnbutmg .t to a single act. or to the omission of a single act. on the part fd end 
 ants, as the learned Judge by the said question and by his remarks required. 
 
 ^.^J\!'''^y!"l^'''''Z''^^^'^^^^^^^^^ '^^y '"'«^«'«1 that the neolicence 
 
 cons,sted in no having sufficient warning, inasmuch as the defendants' negligence was conipounded 
 of several ingredients, such as the absence of the customary watchman at the pface whi dZerwas 
 20 imminent, the u. terception of the view by the interposition of cars, the improper seizure and XcZ 
 of the horse by the railway employe' and other circumstances. ^ 
 
 6. That the said judgment is contrary to the weight of evidence, as well as wrong in law and for 
 non-direction in not telling the jury to consider the locality and all the circumstances requi ite tolow 
 that proper precautions were taken by defendants. 'equisiie to ,Jiow 
 
 7. That the learned Judge was wrong in holding that the co.itjjliance of the defendants with certain 
 statutjuy requirements, such as ringing a bell or sounding a whistl^ was sufficient to absofve^h;,: Lm 
 
 «n., ^' ^ K\f ' ^T"'1 '^f^' """' ""''""^ "' ''"^'^'"§ *^^ defendants were not required to rina a bell or 
 sound a whistle unless the locomotive or train started beyond 80 rods distant from the highvvay 
 
 9. lliat the ju.lgment should be set aside and judgment entered for the plaintiff' for the amount of 
 damages found by the jury, with costs, or at all events a new trial granted. ^ 
 
 Hume B. Elliot, 
 
 Appellant's Counsel, 
 
 30