Net). State IIitor!cil Soc.
moutb. Journal.
SEMI-WEEKLY EDITION FOUR PAGES
VOLUME XXIX
PLATTSMOUTII, NEBRASKA, MONDAY FKMIUAHY 21, 1U10
NO 15
Sb
CASE OF EARL R. BUSH
: 1HEUGI0II
Blish Sues for $25,000 Damages for Loss of Foot in Railroad
Collision in Local Yards Last July.
The trial of the case of Earl R.
Bllsh against the Burlington railroad
commenced yesterday afternoon, the
work of lmpannelling the jury being
taken up at 2 o'clock. The plaintiff
is represented in this case by Matthew
Gering, while the defendant was rep
resented by Byron Clark and W. A.
Robertson. .
The case In brief, is one brought
by Earl R. Blish for the loss of his
left foot which was crushed in a col
lision In the Plattsmouth yards on
July 1st last, between a switch en
gine on which the plaintiff was fire
man and a fast freight train. The
swticher was backing out of a siding
at the west end of the yards when
the freight train bound east rounded
the curve and crashed into the switch
er. Blish started to jump from the
switcher, but did not have time, and
his foot was caught between the en
gine and tank and crushed. There
was no semaphore working at the
west end of the yards, owing to some
grading which was being done there,
and the company was presumed to
have out instructions for engine and
trainmen to enter the yards under
control, that Is, so the train could
fee stopped within a short distance.
The plaintiff contends that the train
which ran into the switcher was not
nnder control when the collision hap
pened, and that the negligence of the
crew of the freight made the com
pany liable. The plaintiff contends
further that his injury Is such as to
incapacitate him for labor and is per
manent. .
. r r. K i- r v , .. ....
The selection of the jury resulted in
the plaintiff exhausting all of his
three challenges, the defendant waiv
ing all its challenges. The jury, as
finally chosen, are Jno Bogard, Wm.
Cross, John Domingo, Emerson, Dow
)er, W. E. Dull, John Frolieh, Creed
Harris, Chas. Jackman, H. F. Kropp,
Wm. Kunz, John. Schoerman and
George Vogel.
Matthew Gering, for the plaintiff,
made the opening statement to the
reviewing the life of the plaintiff,
whom he stated was a young man 28
years of age, who had fired on the
Lehigh Valley railroad in Pennsyl
vania, and had done other work there,
coming to Nebraska in June, 1909.
He sought work of the Burlington
and was sent here and went to work
firing on June 30, 1909. He was
Ignorant of semaphores and the like.
That when he went to work, grading
was in progress in the west end of
the Burlington yards, and the wires
leading to the semaphore at the west
end of the yards had been torn up.
The operating officers of the Burling
ton knew the semaphore lights did
Bot work and on June 30th, an order
was issued from the superintendent's
ffice that all trains approach Platts
mouth yards under complete con
trol, as the semaphores were out of
order. Another order was issued on
July 1, at 10 p. m., which merely
stated the semaphores at the west end
of Plattsmouth yards were out of
rder and to approach the yards un
der caution. The train which collided
with the switcher was known as No.
74's etxra. It left South Omaha at
9 p. m., on July 1st. One of the
two orders was in force when the
train left Gibson at 11 o'clock. It
arrived at Oreapolis at 11:40 o'clock.
Engineer . Davis and Conductor Allen
were in charge. It came from Oreap
olis to the scene of the accident in
peven minutes, or arrived at 11:47.
The distance is I miles. The
rules provided that a train should
stop when a semaphore light was seen
to be out. According to the evidence,
Mr. Goring contended, the delivery of
the orders to the engineer and con
ductor was overlooked by lho tele
graph operator at Gibson. Mr. (Spr
ing contended that within yard lim
its, switching crews could work on
any of the tracks up to ten minutes!
of the RUnni'ldt trnlnu ilm.i m. 1
............ i. l , Ullt lliU
swl;chers had rights over Inferior
trains. The evidence, It was claim
ed, would show the night operator
here, informed the night ynrdmaster
that 74's extra would not be here
until 12 or 12:10, midnight. The
movement of the switcher and the
subsequent collision with the freight
was then described. Mr. Gering went
Into the question of the measure of
IIOW Oil 111
damages.
Mr. Clark, for the Burlington,
stated he did not consider there
would be much difference in the evi
dence. He believed that Blish had
been Instructed to keep a look out,
and that he knew the point where
the switcher was working was a dan
gerous one. He also contended Blish
knew the extra.train was coming and
he should have kept a lookout. He
also contended that the place where
the accident occurred was one where
trains coming in could see but a short
distance and that the freight was un
der control. There was a duty in
cumbent on the plaintiff to keep a
lookout Mr. Clark then discussed
the measure of damages and decided
that was a matter for arbitration.
Court then adjourned until 9 a. m.
Court opened this morning at 9
o'clock promptly and the plaintiff,
Earl R. Blish was called to the stand
immediately. Almost the first evi
dence to be placed before the jury
after the plaintiff had taken the stand
was the introduction of a plat of that
section of the Plattsmouth yards
where the accident in which plaintiff
was injured, took place. This plat
showed the various distances between
a number of points such as fixed sig
nals and the like. This plat was ad
mitted to be a correct one by the
defendant. The plaintiff also Intro
duced a number of photographs taken
at the same points and covering the
same places as Bhown on the plat. The
plat and photographs were identified
by the witness, Bllsh, who pointed
out where the camera stood at the
time the several photographs were
taken. He was then excused for the
time being.
G. R. Olson, the photographer who
took the photographs mentioned, was
then called and also testified as to
the location of the cemera at the time
the several photographs were taken.
The photographs in question wit
ness testified were taken at 9 a. m.,
the day after the accident. They re
presented the position of the engines
on the track at that time.
Mr. Olson also testified' .for the
railroad company as to certain meas
urements he had made at or near the
scene of the accident and certain
photographs which the defendant of
fered were admitted by plaintiff to
be correct.
L. D. Hlatt, photographer, called,
testified to having taken certain
photographB which were offered in
evidence, on January 23. He also
testified as to the location of the
camera when these photographs were
taken. They were taken at the point
where witness understood tho acci
dent had taken place.
C. S. Johnson, yardmaster of the
Burlington at Plattsmouth, called, is
in charge of switch crews at all times.
Yardmaster 15 years and familiar
with yards. Recalled accident, tracks,
etc., now as they were in July last.
Witness shows plat and testified as
to location of yard limit sign, sema
phore platforms and semaphores at
west end of yards. The jury was then
agreed by the parties to bo allowed
to visit, the yards with Yardmaster
Johnson, and on suggestion of Judge
Travis, the counsel for the parties.
Mr. Johnson to explain to the jury
the situation of the signals, stands,
tracks and engines at the time of the
accident bo far a3 he knew. Counsel
was not to speak to jury.
Before tho jury left the photo
graphs offered by defendant were ad
mitted in evidence.
Judge Travis ruled the jury was to
view the place and understand the
plat and photographs offered in evi
dence hut not to go Into the facts of
the accident.
Judge Travis ilien Instructed die
jury to go with Mr. Johnson to place
of accident and with the plat and
photographs and examine lliings
shown on them, and they were not
to discuss tho matter among them
selves or other persons but might ask
Mr. Johnson any question about t lie
plat or photographos but. not for opin
ions or conclusions. Tho attorneys
were to go along but were not to ask
or answer question.
Tho jury then left for the scene of
the ncihl-nt accompanied by one bail
iff and the sheriff.
The Jury completed its survey of
the premises at about 11 o'clock and
returned into court when Mr. Johnson
resumed his testimony. He testified
that he in company with the attor
neys had explained to the Jury the
plan of the yards. He testified that
Chrlssinger was engine foreman.Nell
son engineer, Gochenour follower and
Blish fireman on the switcher on the
night of July 1st. Chrisinger was in
charge of engine and crew. The rights
of switching engines and crews were
outlined in a book of printed rules
witness testified In answer to Mr.
Clark. Witness testified an inside
switch train had rights over all trains
except first-class trans which they
must clear by ten minutes. They
had absolute rights over freights and
extra trains. Witness then explained
what a semaphore was and its opera
tion and also the use of semaphore
lights. The location and number of
semaphores at the west end of the
Plattsmouth yards was explained by
witness. The semaphores were out of
condition on the night of July 1st.
The reason was the company was
ditching It's tracks and the sema
phore post had been removed. Wit
ness showed on plat where the work
was done. An east bound train when
the semaphore lights were out should
stop at that indicated danger. Knew
Con Gillespie was section foreman of
the Burlington. He had no control
over semaphores. Knew George Dyer
who had worked for the Burlington
on semaphores. Geo. Poisall, Sr., was
doing the ditching. Witness shown
book of rules of the Burlington which
he identified as the rules in force on
July 1st. 'Defendant admitted that
book of rules offered was correct and
both parties might read from them.
Mr. Gering read Rules Band F,
which Mr. Johnson testified were in
force. Rule on page 6 also offered.
Also on a great many other pages of
the book of rules, such rules as re
lated to the duty of employes in fol
lowing the rules as to signals and
their observance, the classes of trains
and their rights, rates of speed, ord
ers their delivery and promulgation,
duties of operators, train registering
and reporting, semaphores and their
significance, duties of chief dispatch
ers, dispatchers and operator! and en
gine and trainmen and their duties.
Mr. Johnson also identified the offi
cial time card of the Burlington and
the rules thereon which were ad
mitted by consent of defendant as the
time table and rules in force on July
1 and 2. Mr. Johnson testified an
order had been issued by the super
intendent that the semaphores were
out of order. The duties of the fire
man were to obey the instructions of
the engineer. He had no control over
the signals. His work was vo fire
the engine and take s-rs-sitft. He did
not control the engine movements.
Witness usually received notice when
extra trains would reach the yards.
From Oreapolis to Plattsmouth sta
tion was 4 miles. Notice of trains pas
sing Oreapolis usually sent Platts
mouth. Some times night yard fore
man notified. Usually any of crew
present were told by operator. Some
times the fireman was told merely to
notify the remainder of the crew.
(Saturday n jvshioii.)
At the afternoon session yesterday
Yardmaster Johnson resumed his tes
timony explaining what was meant
by complete control of a train and
explaining the duties of engineers
when approaching semaphores where
the lights were out. The operation
of switchboards and lights was ex
plained at length. Witness knew
piaintlff by sight. He was under
Supt. of Shops Balrd. First time wit
ness ever saw Bllsh was the night
he was injured. No cross examina
tion. F. C. Weber called; sueprlntendent
of tho Plattsmouth Waier company.
Pumping station one mile north of
the Burlington station. Rout. Chrlst
opherson engineer at pumphouso.
Traveled Burlington yards to and
from the pumping station and knew
yards. Remembered accident and
saw wreck about !t a. in., next morn
ing. Knew semaphores' location and
the wins to tho semaphore were torn
up. Witness did not believe, sema
phore wan in working order, Xo cross
examination.
George Dwyor called; went to rail
roading May 1st us telegraph mes
senger, later look care of switch
lamps nnd semaphores on Tuesdays
and Fridays. Took care of sema
phores during week before July 1st.
No light there that night as sema
phores were out of commission. This
was true for several days before July
1st. George poisall was working
west of tho tracks at that time.
Switches east of semaphore were
(lighted when he left them. Cross
examined, witness said lights some
times smoked when turned too high.
Con Gillespie, section foreman of
the Burlington called. Had lived
here since 1890 and been foreman
of section 112 since 1891. His terri
tory ran from one-half mile west of
the pumphouse to the east end of the
Platte river bridge. Went through
yards every morning and evening and
saw a man ditching between the sem
aphores. Work caused wires to be
pulled up and semaphores d.uld not
work. Could not say how, long this
state of affairs existed. Cross ex
amined, witness testified that the
wires would likely have to be taken
out.
Robt. Christopherson, engineer at
pumphouse called. Lived at Perkins
House, Plattsmouth. Pumping sta
tion one mile north of the Burlington
station on the east side of the Bur
lington tracks. His testimony as to
the state of the wreck the next morn
ing after the collision corroborated
Mr. Weber. Witness testified to
knowing semaphores location and that
wires were taken down several days
prior to the accident. Mr. Christo
pherson's testimony was largely cor
roborative of others.
On behalf of the defendant Mr.
Clark admitted that the semaphores
were out of order and had been for
several days.
George Poisall called. Knew Road
master Ibsen, rcadmaster of the Bur
lington who had contracted with him
to ditch tho Burlington tracks from
down in the yards up to beyond tho
pumphouse. Had taken out the sem
aphore wires before he commenced
work on June 27 or 28. Saw wreck
about 8:30 a. m., next day and found
his scrapers under the wreck. Wit
ness produced letters from Road
master Ibsen showing his employment
to do the ditching. Cross examined.
Wires had to be taken out to do the
work.
Deposition of John 1. McShane, the
chief .dispatcher of the Burlingtua
read by Mr. Gering. Reviewed his
connection with the Burlington. Jerry
McManus, night chiew dispatcher at
Omnha; operators under witness and
McManns. Jas, Welch, dispatcher at
time. Explained system of handling
train orders on the road. The duties
of operntors are to keep copies of ail
orders and deliver orders to conduct
ors. Witness further deposed as to
duties of oeprators handling train
orders and also as to tho workings
and significance of semaphores. Wit
ness then deposed as to the move
ments of the train known as 74's
extra. This train had 42 loads and
8 empties with a tonnage of 1,950.
Train in charge of Conductor Allen
and Engineer Davis. Witness did not
know of whereabout of either con
ductor or engineer. Train left South
Omaha at 9:10, and Gibson was
reached at 9:30. I. L. Mitchell was
operator at Gibson. Next operator
was at Oreapolis. Could not say
whether operators at Oreapolis or
Plattsmouth knew about trains' time.
They were not usually told. This train
a regular train running extra. Welch
would know of notification of agent
at Plattsmouth. Witness deposed as
to duties of engineers regarding sem
aphores. Knew Engineer Snead who
ran a train from Sioux City to Tlatts
mouth that night. He came from Ash
land to Plattsmouth In time between
8:15 and 9:30 p. in. Witness ex
plained about semaphores In Platts
mouth yards and testified as to an
order for Engineer Davis stating all
signals at west end of Plattsmouth
yards were out of order but could not
say whether he got them or not.
Running orders were also introduced
and also a long set of meeting and
running orders were introduced and
read. Order regarding semaphores
at Plattsmouth was In force on July
1st and 2nd. Witness testified that
this order was not delivered to the
engineer or fireman of tho extra.
Tho operator forgot to deliver tho
order was disclosed at an investiga
tion held by tho company. Engineer
Davis ran extra tho night of the
wreck nnd tho train should have been
under full control. Road from Oronn-
olis to Plattsmouth at river grade, a
distance of u.91 miles. Train left
Oreapolis at. 11:4(1 p. in., nnd tho
wreck happened at 11:17 or 11:48.
Davis ran trains after tho wreck nnd
arier the Investigation by Supt. Flynn.
Cross examination held by Mr. Clark
was very brief and showed witness
had no personal knowledge, ()f tho
construction of semaphores,
.1. K. McManus deposit Ion read by
Mr. Gering was largely corroborative
,of McShano's, especially as regards
who were dispatchers, engineer, train
men nnd operators and as to orders
Issued to the train of 74's extra, wit
ness developed that the extra was
running late on the night of July 1st,
but it , was not necessary to notify
the switching crews or yardmen at
riattsmouth. A great deal of the de
position was devoted to the question
of rules, and the duties of yardmen
and trainmen.
The deposition of Jas. Welch, trick
dispatcher at Omaha read by Mr. Ger
ng, was largely corroborative of those
of McShane and McManus and related
to the duties of operators, trainmen
and englnemen and as to the hand
ling of orders. It developed that the
operator at South Omaha had been
discharged from the company's ser
vice for failing to deliver the order
to engineer of 74's extra, telling him
of the condition of the semaphores
at the west end of Plattsmouth yards.
W. L. Pickett was called. He Is
agent at riattsmouth and has been
for 17 years. Is in charge of opera
tors here and had a record of same.
II. J. Leuchtweia was operator from
lip. m., to 8 a. m. July 1-2. Moore
worked from 2 p. m. to 11 p. m., on
July 1st. Witness explained the hand
ling of any notification of approach
ing trains In the local yards by which
It appeared that it was the duty of
the operator to deliver this messnge
to the yardmaster. Witness was noti
fied by night police Cory of the wreck
here and visited tho Bcene about half
an hour after the accident. Witness
showed by a photograph where he
first saw Blish which was a point be
tween the engine nnd tank. Witness
could not see much of plaintiff ex
cept his foot. Saw htm about an
hour, plaintiff begged to be released
and begged the boys to cut his foot
off. Mr. Clements and Dr. J. S. Liv
ingston were present. Witness left
scene about 3 a. m. Cross examined
by Mr Clark, witness stated memor
andum of approaching trains was
merely for the information of yard
men working In the yards. Witness
thought all of a switch crew should
watch for approaching trains.
A. O. Moore, operator at Platts
mouth called. Operator hero night
of July 1st. Had had three years
experience. Worked from 2 to 11
p. m., on July 1st, and received no
word of extra 1973 or 74's extra as
he remembered. Did not always
keep a record of train limups. Us
ually notified the yardman In charge.
Never notified engineer or fireman.
II. A. Howerger, operator at Platts
mouth. Was operator at Orenpolls
from 4 p. m. to 12 a. m., on July 1st.
Engineer Snead was on train No. 88
and passed Oreapolis that night be
tween 9 and 11 p. m. Did not re
ceive notice of 74's extra leaving
Gibson. Received an order which
he was instructed to produce at once.
Pending his securing this order,
Mr. Crlsslnger wfts called. He was
a helper in tho yards and in charge
on July 1st at night. First saw him
on the night of Juno 30th at work
in. the yards. Crew that night was
P. M. Llndsey and Harry Gochenour,
helpers; Julius Nellson, engineer, and
Earl Bllsh, fireman. Train 74 was
duo here nt 11:05 p. m. Switcher
left for the west end of the yards
about 11:35 p. in., and No. 74 hnd
not come then. He did not know
of 74's extra coming but hnd been
told that No. 74 would be hero about
midnight. Operator Leuchtwels told
him 74 would arrive at 12 o'clock.
Nellson and Bllsh were on the en
gine and Gochenour was close at
hand. Crew then went to the west
end of the yards to make room for
cars off train No. 74. Did not tell
any of the crew about the message.
Did not tell Blish any of this lnforma
tlon. Witness explained responsibil
ity for handling the engine. Witness
shown pint and on it traced details
of tho movement of tho switcher in
the yards culminating in backing out
on tho east bound main line when the
extra camo around tho bend and
crashed into tho switcher. Ho also
detailed tho position of each man.
Witness was thl teen car lengths
from the engine when he saw the
extra coming nnd he told Gochenour
to get olf and ho signaled to stop,
then ho Junip'd. Mr. Clark quest
ioned tho witness to show that ho
did not know where tho point of col
lision was nnd succeeded to cutting
out his testimony on that point. Wit
ness related further detnlis regarding
tho collision which wero intended to
show his position nt the limo and
details regarding tho position of tho
switcher as related to the semaphore.
No Rlgnals wero displayed against
74's extra ns tho switching crew had
rights on them. Did not hear either
whistle or bell of extra but Raw head
light. Crlsslnger met Nellson and tho
latter told him ho guessed no ono
had been hurt nnd witness then went
to the Btation to report the wreck.
Did not see Blish until about an hour
later. Bllsh could have spon h
proaching train by looking out but
not over the tank. - Blish was on left
side of engine and Neilsen on the
right.
When court opened this mornlne
there was quite an appreciable' in
crease in attendance, there being a
number of girls and women in the
audience. The first wit
was Harvey Howergerd. the operator
at Oreapolis last July, who was called
to produce copies of orders from 74's
extra which he received the night of
the wreck here. The
which he produced bearing upon the
accident was one to the conductor
and engineer of the extra telling
them that all trains due had passed
and they need not register in this
city. Aside from this his testimony
seemed unimportant.
Julius Neilsen, the engineer on the
switcher on which Blish was firing
was called on; his testimony was cor
roborative of Foreman Crlsinger as
to the workings of the switcher ou
the night of the accident and the
facts of the wreck. He testified that
the extra train could not have seen
the red switch light of tho track on
which the switcher was working, on
account of the position of the switch
engine. The witness was corrobora
tive of the other witness who had
testified as to the facts of Bllsh being
caught between the engine and tank
and the Intense pain which he suf
fered before he was released. Wit
ness also testified to having tried
to warn Bllsh of the Impending col
lision before lie leaped from the en
gine but Bllsh could not get out in
time to escape.
Mrs. Isabel McLaughlin, a nurso
from the Wise Memorial hospital nt
Omaha, who took care of Bllsh dur
ing his confinement after the acci
dent, was called and testified merely
to the condition In which he was
after she took charge of the case and
as to the amount of' care w hich was
necessary to his recovery. Her testi
mony was largely of merely a techni
cal nature At the conclusion of he
testimony court adjourned for noon.
At the afternoon session John Cory,'
night policeman nt the time of the
accident in this city, was called and
testified to the wreck nnd that he
heard the noise of the collision while
ho wns down on Main street at a
distance of about one mile from the
scene of the accident. The witness
hurried to the scene or the accident
and found HUsh pinioned between the
engine and the tank ns other wit
nesses hnd testified to. He also cor
roborated Agent Pickett as to calling
him after the accident. in the mail
his testimony was largely corrobora
tive of others.
Engineer J. II. Snead was culled
and testified that he was engineer of
train No. 88 which had come from
Ashland to Plattsmouth about two
hours prJor to the accident and that
he hnd received copies of orders call
ing his attention to the condition of
the semaphores at the west end of the
Plattsmouth yards and ordering him
to exercise due caution In approaching
the yards and to have his train un
der control.
The deposition of Harry Gochenour,
follower of the engine on which Blish
wns firing, was read and the deposi
tion corroborates very largely th
testimony of Crlsslnger aud Neilsen,
the facts to vrhlch they testified boiutr
home out by Gochenour's deposition.
The deposition of H. J. Leuchtweia.
operator nt Plattsmouth on tte night
or the accident, wns read and It cor
roborated Crlsslnger as to the time
of arrival of 74's extra, although It
was not so strong ns Crlsslnger's tes
timony. Tho deposition of p. M. Llndsey,
switch man, was rend and It was also
largely of a corroborative nature and
added nothing new to the testimony.
At three o'clock an adjournment
was taken until Monday next In order
to allow the Jurors to go home
Sunday.
for
Tliey ulll Have It.
Undo John p. Keil of nenr Culloni
Is In the city today looking alter
business matters and visiting with
friends and while here ho called at
tin; Journal office and placed his
name? upon the list of subscribers for
tho Daily Journal. Undo Peter, n
everyone knows him, Is one' of th.
best men In Cass county nnd a good
citizen who bus mado good in this
world's goods by much hard work.
Ifo has now accumulated a coinpe
teneco and is going to enjoy lifo'as he
should. lie ciinio down ou tno ncnuy
ler train this morning and wUll re
turn on the same train this afternoon.