1 VIRGINIA: ORIGINAL 2 IN THE CIRCUIT COURT OF THE CITY OF RICHMOND 3 JOHN MARSHALL COURTS BUILDING 4 5 ------------------------------------- 6 CURTIS FOWLKES, 7 Plaintif f 8 vs. At Law No. LE-755 9 NORFOLK SOUTHERN RAILWAY COMPANY, 10 Defendant 11 ------------------------------------- 12 13 14 DEPOSITION OF ROBERT WRIGHT FORSYTH, IV 15 (October 2B, 1998) 16 17 18 19 20 21 22 23 CRANE-SNEAD & ASSOCIATES, INC. 24 4914 Fitzhugh Avenue - Suite 203 Richmond, Virginia 23230 25 Tel. No. (804) 355-4335 2 2 Deposition of ROBERT WRIGHT FORSYTH, IV, 3 taken pursuant to Notice, before D. McGuire, a 4 Registered Professional Reporter and a Notary Public 5 in and for the State of Virginia at Large, at the 6 offices of Mays & Valentine, 1111 East Main Street, 7 Richmond, Virginia, on the 28th day of October, 1998; 8 said deposition taken pursuant to the Rules of the 9 Supreme Court of Virginia. 10 11 12 13 1 4 15 16 17 18 19 2 0 21 2 2 2 3 2 4 2 5 CRANE-SNEAD ASSOCIATES, INC. 3 1 APPEARANCES: 2 John M. Cooper, Esquire Wilson, Hajek & Shapiro, PC 3 Post Office Box 5369 1294 Diamond Springs Road 4 Virginia Beach, Virginia 23455 Counsel for the Plaintiff 5 6 C. Stephen Setliff, Esquire Mays & Valentine 7 1111 East Main Street Richmond, Virginia 23219 8 Counsel for the Defendant 9 Mr. D. P. (Doug) Price 10 Claim Agent Norfolk Southern Corporation 11 2200 Redgate Avenue Norfolk, Virginia 23507 12 1 3 1 4 is 16 17 18 19 2 0 21 2 2 23 2 4 2 5 CRANE-SNEAD & ASSOCIATES, INC. 4 1 Deposition taken -- October 28, 1998. 2 3 4 5 I-N-D-E-X 6 DIRECT CROSS 7 RO.BERT WRIGHT FORSYTH, IV 5 8 9 10 11 Forsyth Depositic)n Exhibit Number 1.......... Page 100 Composite of two photographs of 12 the accident scene 13 Forsyth Deposition Exhibit Number 2.......... Page 101 Composite of two photographs of 14 the accident scene is Forsyth Deposition Exhibit Number 3.......... Page 147 Accident Report dated June 3, 1996. 16 filled dout by Curtis Fowlkes 17 Forsyth Deposition Exhibit Number 4.......... Page 147 Accident Report dated June 3, 1996, 18 filled out by Robert Forsyth 19 2 0 21 2 2 2 3 2 4 25 Reported by D. McGuire. CRANE-SNEAD & ASSOCIATES, INC. 5 Robert Forsyth - Direct 2 ROBERT WRIGHT FORSYTH, IV, a witness 3 called to testify by counsel for the Plaintiff, first 4 being duly sworn, deposes and states as follows: 5 DIRECT EXAMINATION 6 BY MR. COOPER: 7 Q Please state your full name for the 8 record. 9 A Robert Wright Forsyth, IV. 10 Q Mr. Forsyth, what is your home address? 11 A 905 West 32nd Street, Richmond, and the 12 Zip Code is 23225. 13 Q And do you understand we're here to take 14 your deposition today? 15 A Yes, I do. 16 Q And you've had that done before in other 17 FELA cases, had your deposition taken before? 18 A Yes. 19 Q So then you understand that I'm going to 20 ask questions, and you're going to answer, and this 21 lady (Denoting court reporter) is going on take it 22 all down, right? 23 A I understand. 24 Q And as you're doing now, which I 25 appreciate you answering verbally with yeses and nos CRANE-SNEAD & ASSOCIATES, INC. 6 Robert Forsyth - Direct 1 as opposed to shaking your head, that sort of thing 2 -- I appreciate that. 3 A I understand. 4 Q And if I ask a question that is less than 5 perfectly clear, I'll ask you to tell me that you 6 didn't understand it or didn't get it. otherwise, I 7 will assume that you understood my question. Okay? 8 A All right. 9 Q what is your business address? 10 A 405 West 32nd Street, also in Richmond -- 11 Excuse me, West 6th Street. 12 Q That's the Richmond Yard office, 13 basically? 14 MR. COOPER: (To Mr. Setliff) And, 15 Counsel, do you have a copy of his position 16 description for me today? I thought we might 17 have had an agreement along those lines that 18 you would do that, and it would be in the order 19 from the October 18 hearing. If you would, 20 take a look at that. I take it you don't have 21 one to get me here, sitting here right now. 22 MR. SETLIFF: (shaking head negatively.) 23 MR. COOPER: If you will agree to provide 24 me one in some little time for Mr. Forsyth -- 2S MR. SETLIFF: I can't remember if we CRANE-SNEAD & ASSOCIATES, INC. 7 Robert Forsyth - Direct 1 talked about that or not. I'll take a look at 2 the Order. If I said I'd do it, I'll do it. 3 MR. COOPER: Okay. And I would ask you if 4 you would do it for each witness. If at all 5 possible; if you don't have them ready at the 6 time of the witnesses' depositions, which is 7 obviously the intent, that you provide it 8 immediately thereafter, or as soon as you can 9 thereafter, to the extent that that's in the 10 order. 11 MR. SETLIFF: Okay. 12 MR. COOPER: Let me also note for the 13 record that I have yet to get full and complete 14 answers to certain questions I asked the 15 Railroad in this case. 16 (To the witness) As a result of that, 17 there may be things that I have to ask you a 18 longer version than if I had known what the 19 answers were going to be from the Railroad 20 today, Mr. Forsyth. So I hope you'll bear with 21 me. 22 THE WITNESS: I'll bear with you. 23 MR. COOPER: (To Mr. Setliff) Obviously, 24 to the extent that there is anything signi- 25 ficant in the answers whenever counsel gets CRANE-SNEAD & ASSOCIATES, INC. 8 Robert Forsyth - Direct I them to me that would make me feel the need to 2 redepose any of the witnesses today, I reserve 3 my right to ask the Court to make you do that. 4 I do not want to inconvenience Mr. Forsyth, of 5 course, but if I feel like I do, that once I 6 see what the answers are, there may be new 7 information that I didn't have an opportunity 8 to ask about, even though the Court Order said 9 the information was to come to me by October 10 2 3 . 11 Q Mr. Forsyth, tell me briefly, starting 12 with your first job with the Railroad and going 13 forward in time, each job you have held, your title, 14 how long you were in it, where you basically worked 15 out of, and what your basic job duties were. Before 16 you begin that, have you ever worked for any Railroad 17 other than Norfolk Southern? 18 A No. 19 Q Why don't you start with your employment 20 with Norfolk Southern and move forward, from your 21 first job. 22 A All right. You asked have I ever worked 23 for another Railroad. I have worked for railroad 24 contractors, but not another Railroad. 25 Q which railroad contractors have you worked CRANE-SNEAD & ASSOCIATES, INC. 9 Robert Forsyth - Direct 1 for? 2 A It was Kennedy Railroad Contractors and 3 Vaughan Railroad Contractors. 4 Q Was that before your employment with 5 Norfolk Southern? 6 A No, during one of the layoffs. 7 Q I see. And can you tell me approximately 8 what years you would have done those jobs and what 9 you did for those companies? 10 A Let's see. With Kennedy, in 183, and with 11 Vaughan, it would have been in 184. 12 Q What did you do for those companies? 13 A Laborer. 14 Q Track laborer or what sort of -- is A Track laborer. 1G Q -- laborer? 17 MR. SETLIFF: (To the witness) Make sure 18 he finishes asking his questions before you 19 start the answer, Mr. Forsyth. Don't talk over 2 0 him. 21 Q Anything other than track laborer that you 22 would have done for those companies? 23 A No. 24 Q Why don't we just then go back and start 2S with your first job with the Railroad. CRANE-SNEAD & ASSOCIATES, INC. 1 0 Robert Forsyth - Direct 1 A Employment with Norfolk Southern. 2 Q Norfolk Southern, was that 180/181? 3 A I hired in 1981, September of -81. 4 Q And what did you do when you were hired? 5 A A laborer. 6 Q Again we're talking about track -- what 7 department was that in? 8 A maintenance of way. 9 Q And was it out of the Richmond office, or 10 where were you? 11 A In Richmond originally, and then in 184, 12 I was with a rail gang, also as a laborer, Combo 1 13 was the rail gang's designation, and then to 14 Charlottesville in 185, where I worked as a laborer 15 on a section gang, maintenance of way. To Richmond 16 in 1988, I believe it was October, where I worked as 17 a foreman, and then was promoted to my present 1B position in January of 1988 -- excuse me, the foreman 19 would be 1987. January of 1988, I was promoted to my 20 current position. 21 Q which is? 22 A Assistant track supervisor. 23 Q And you do that out of Richmond? 24 A Yes. 25 Q In 184, where were you physically? Where CRANE-SNEAD & ASSOCIATES, INC. Robert Forsyth - Direct I was your gang out of? Was it Roanoke or Lynchburg? 2 A The rail gang? 3 Q Yes. 4 A I believe the general division engineer 5 who had province over that gang was out of Asheville, 6 North Carolina. 7 Q Right. Where did you report for duty, is 8 what I was asking. 9 A Started just outside of Raleigh, North 10 Carolina, and we finished the year just outside of 11 Birmingham, Alabama. 12 Q Was there any significant difference, 13 other than location, in the work that you did as a 14 laborer from 181 to when you became a foreman in 187? 15 And what I mean by that -- you have to assume I don't 16 know that much about the Railroad, and so I don't 17 know if being a maintenance of way is different than 18 being a rail gang or section gang, difference in 19 logistics. 20 A There is a difference between the work 21 done by a section gang and that done by a rail gang. 22 Q Tell me what the basic difference is. 23 A A rail gang is a production gang where 24 you're involved in a component of the entire job, 25 while also involved as -- you know, a part of the CRANE-SNEAD & ASSOCIATES, INC. 1 2 Robert Forsyth - Direct 1 entire job as a laborer. The section gang is a 2 smaller group, so you have a more thorough 3 involvement with the entire operation. A rail 4 gang is a big operation, you're a smaller part of 5 it. You are a bigger part of a section gang. 6 Q How many men was on a rail gang, roughly? 7 A Sixty. 8 Q And on a section gang? 9 A Between -- I've worked on them as small as 10 two, and between two and five. 11 Q How about in 185 when you were there, was 12 it between two and five it fluctuated? 13 A Is this in Charlottesville? 14 Q In Charlottesville. is A There it would be five, and foreman. 16 Q And how do those two things differ from 17 being the kind of laborer you were with maintenance 18 of way that you were from 181 to 84? 19 A Not significantly. Same sort of work. 20 Q What about crew size? 21 A Same approximate crew size, two to five. 22 Q Which of those three posts would be the 23 correlate, the same as basically what my client, 24 Curtis Fowlkes, did at the time of the accident? 25 A He was working on a section gang, a line CRANE-SNEAD & ASSOCIATES, INC. 1 3 Robert Forsyth - Direct 1 maintenance gang. 2 Q So it would be similar to what you were 3 doing in 1985? 4 A And in 1981. 5 Q The '81 to 184, did your crew size vary 6 between two and five, or do you remember more 7 precisely what the numbers were? 8 A It varied. 9 Q What causes the crew size to vary? 10 A Absentees, vacation, people will bid off 11 of a gang for another gang -- there are any number of 12 variables that can take place. 13 Q Is there any system of automatic 14 replacement or any kind of standardized replacement, 15 either a Norfolk Southern policy or a Union policy, 16 that would say that you can't get below two, or any 17 time a man leaves, you've got to bring in another 18 man? Do you understand how that system works, or is 19 there such a system? 20 A A standard, no, not to my knowledge. 21 There are provisions in the contracts that provide 22 for those jobs being made available to others. 23 Q Right. Are there any Norfolk Southern 24 rules that you're aware of that govern that, that say 25 you can't have less than two on a gang or whatever? CRANE-SNEAD & ASSOCIATES, INC. 1 4 Robert Forsyth - Direct 1 It wouldn't be much of a gang if you only had one, 2 right? 3 A Right. 4 Q Okay. And when we talk about crew size, 5 for instance in Charlottesville, of five, is the 6 foreman included in that or is that -- 7 A Yes, the foreman is included, foreman and 8 four men. 9 MR. SETLIFF: (To the witness) Let him 10 finish the question. You're talking overtop of 11 him. 12 MR. COOPER: It wasn't disturbing me, but 13 it's probably a better policy. It helps the 14 court reporter. It makes it easier for her. is Q In 187, when you became a foreman, what 16 kind of work -- was that foreman of a section gang? 17 A Yes. 18 Q Does each gang have a number? Is that how 19 you designate the gang? 2 0 A Yes. 21 Q What was the gang number there? 22 A TM-21. 23 Q What was Mr. Fowlkes' gang at the time he 24 got hurt? 25 A TM-21. CRANE-SNEAD & ASSOCIATES, INC. 1 5 Robert Forsyth - Direct I Q It was that same gang. And I take it 187 2 is the first time you started working with TM-21. 3 A No. I was with TM-21 when I was hired. 4 Q So does TM-21 designate -- that designates s the section gang? 6 A Correct, a track maintenance gang. 7 Q And so then, except for the 184 job, you 8 were with TM-21 as a laborer when you were a laborer? 9 A I was with TM-21. I worked briefly with a 10 smoothing gang, I believe it was SM-2. I was briefly 11 with a bolt-tightening gang. But most of my work as 12 a laborer was performed as a member of a track 13 maintenance gang. 14 Q In 187, when you became foreman of that is gang, how many crew members were there? 16 A There were four. 17 Q Again, foreman plus three? 18 A No, the foreman -- I counted myself, too. 19 I had four laborers. 20 MR. SETLIFF: John, I don't want to 21 interrupt you again, but will you agree to give 22 me a continuing objection to number of gang 23 members, size of gangs, reduction in gang 24 force, as being irrelevant? 25 MR. COOPER: Sure. I don't want to CRANE-SNEAD & ASSOCIATES, INC. 1 6 Robert Forsyth - Direct 1 interrupt it. I want to keep it moving. And I 2 would say that you have a continuing line of 3 obi.ections. Any objection normally would be 4 heard under the rule, I think that would he 5 one, relevance, you can have throughout. No 6 relevance objections need to be made about that 7 or anything else that we're alleging that you a don't think is relevant; we'll fight about that 9 at a later day. 10 MR. SETLIFF: All right. Fine. Thank 11 you. 12 Q Why did you move up to foreman in 187? 13 A They actually asked me to come down and 14 fill in for a man who had been dismissed from their is service for causing an accident with a locomotive. 16 Q I take it then it was by way of a 17 promotion. I mean, you were probably getting paid 18 somewhat more money. 19 A Well, you can't be promoted directly into 20 a foreman's job. You have to do the job and are then 21 qualified to do the job. 22 Q Were you already qualified? 23 A I had had some qualifications as a 24 flagging foreman. I was working as a flagman at the 25 time that they sent me to Richmond, actually to West CRANE-SNEAD & ASSOCIATES, INC. 1 7 Robert Forsyth - Direct 1 Point, to stand in for the fellow who was being taken 2 out of service. 3 Q What is a flagman for? 4 A Providing flag protection and obtaining 5 track time for either a Railroad group, a welder or 6 his group, or an outside contractor who is performing 7 the work that interfaces in some way with the 8 Railroad operation. 9 Q So it's somewhat of a liaison between -- 10 is it for scheduling? 11 A For scheduling primarily. 12 Q When you become a foreman rather than a 13 laborer, I assume you earn more money. 14 A Yes. is Q And obviously your duties are different. 16 A Yes. 17 Q Tell me what the difference in duties are 18 between being a foreman and just being a member 19 amongst the labor on a section gang. 20 A The coordination of the work, a greater 21 involvement with the methods that would be employed 22 to do the work. You have responsibilities for 23 keeping track of the time, as well as the protection 24 of the work, the appropriate means of track time 25 acquisition. CRANE-SNEAD & ASSOCIATES, INC. 1 8 Robert Forsyth - Direct 2 NOTE: After an off-record discussion, 3 recess is had from 9:05 A.M. until 9:15 A.M., 4 after which deposition resumes as follows: 5 6 A There's a difference between being a 7 foreman and the track laborer. Also, the foreman has 8 responsibiliites for immediate supervision. 9 Q Is it fair to say that the foreman is the 10 one who decides what the workers may do on a given 11 day? 12 A A great deal of the decision rests with 13 the foreman, yes. 14 Q By telling them -- 15 A He actually organizes his job on site, 1 6 yes. 17 Q And tells them what methods to be using if 18 there's any question about that? 19 A If there are questions about it, yes. 20 Q The foreman is generally the one who is 21 most responsible for safety of the crew? 22 MR. SETLIFF: Objection to the form of the 23 question. 24 (To the witness) Answer that as best you 25 can. CRANE-SNEAD & ASSOCIATES, INC. 1 9 Robert Forsyth - Direct 1 Q Each individual is responsible for the 2 safety, his own safety and for the safety of the 3 crew. And it's difficult to say that there is one 4 person who is most responsible. 5 Q And would you say, therefore -- 6 A He is essential to the safe operations. 7 Q Would the men rely on the foreman to help 8 them decide what the proper methods are, the safe 9 methods are to do things? 10 MR. SETLIFF: Note an objection, please. 11 (To the witness) Answer the best you can, 12 Bob. 13 A To some extent. They have a wealth of 14 personal experience upon which to call, as well. 15 Q When you say wealth of experience, that is 16 what makes them qualified to be foreman to begin 17 with, right? 18 MR. SETLIFF: Objection. That 19 mischaracterizes his testimony. 20 A Each individual on the gang has experience 21 which that individual brings into play in the work 22 being done. 23 Q What I'm saying is that the way they pick 24 foreman is, in part, based upon their having some 25 good experience in this field, right? CRANE-SNEAD & ASSOCIATES, INC. 2 0 Robert Forsyth - Direct 1 A You're not actually promoted to the job of 2 foreman. You work your way into it through a system 3 of qualifications. 4 Q And the qualifications essentially having 5 a certain sufficient level of experience and 6 knowledge of the safety rules, right? 7 A That becomes a part of it, yes, the 8 qualifying process. 9 Q What else is involved in the qualifying 10 process, sir? 11 A An understanding of the work, capability 12 to do the job, and the versatility to adapt to the 13 situations and guide the gang. 14 Q Now, when you became an assistant track is supervisor, I take it, again, that was a promotion. 16 A Yes. 17 Q You earned more money in that post? 18 A It varies. It varies. 19 Q You have the potential to earn more? 20 A Actually, my salary is set. Some of the 21 guys out there have a potential to earn more than I 22 do if they -- 23 Q They get overtime? 2 4 A Yes. 25 Q You don't get overtime as an assistant CRANE-SNEAD & ASSOCIATES, INC. 2 1 Robert Forsyth - Direct 1 track supervisor? 2 A No. No. 3 Q I take it when you become an assistant 4 track supervisor, you've now joined the ranks of 5 management, as it were. You're now a supervisor as 6 opposed to -- 7 A That's correct. I'm a non-agreement 8 employee. 9 Q And you've pretty much been in that post 10 from 188 through today? 11 A Yes. 12 Q Including the time May 28, 1996, when 13 Curtis Fowlkes got hurt? 14 A I was in this post at the time of that is incident. 16 Q Tell me what your basic duties are as 17 assistant track supervisor? 18 A The first responsibility of an assistant 19 track supervisor is inspection of track, and then to 20 assist the track supervisor in the performance of his 21 duties, identification of the work that needs to be 22 done, and the allocation of resources. And, perhaps, 23 the identification of the other resources then may 2 4 dif fer. 25 Q What group of workers are under your CRANE-SNEAD & ASSOCIATES, INC. 2 2 Robert Forsyth - Direct 1 control as an assistant track supervisor in Richmond? 2 For instance, who is it that you have responsibility 3 over? 4 A At May the 28th, there was no track 5 supervisor in Richmond, so TM-21 would have been 6 within my responsibility. 7 Q So you were functioning as the acting 8 track supervisor at that time? 9 A That's correct. 10 Q And who else other than TM-21 would have 11 been under your -- how many gangs did you control or 12 what have you at that time? 13 A There was TM-6. TM-6 is a Richmond gang, 14 but TM-6 was empty at that point in time. TM-6, 15 there's just one man who rides with the assistant 16 track supervisor. So the fellow who was riding with 17 me came off of TM-21. The only gang in May working 18 with us was TM-21. 19 Now, there is a bridge gang which would be 20 assisting Richmond, but they are not directly under 21 the track supervisor; they work for a separate 22 supervisor. 23 Q And going back up the chain of command 24 from you -- and all my questions will be directed 25 really from here on out to May 28, 1996, unless we CRANE-SNEAD & ASSOCIATES, INC. 2 3 Robert Forsyth - Direct 1 specify some other time frame, unless something else 2 makes a difference. As of that time, who would have 3 been your immediate supervisor? 4 A A. Scott Snow. 5 Q What's his title, do you know? 6 A Assistant division engineer. 7 Q And what does the assistant division 8 engineer do and control? 9 A He has the responsibility for a number of 10 track supervisors' territories, and he is going to be 11 looking at those territories to determine how to 12 allocate resources in the maintenance of the track 13 within those territories. 14 Q And so did you have a geographic area that is you were in charge of when you were acting track 16 supervisor in May of 1996? 17 A Yes, there's a territory. 18 Q What is that territory? 19 A The Richmond District is its designation, 20 and the territory runs from Burkeville in the south, 21 and that would be a railroad milepost F84.8, to West 22 Point, and that is -- the last milepost is F179. 23 Q Is West Point to the north or is it -- 24 A North on the railroad. And I imagine 25 you've had some things to do with this already. CRANE-SNEAD & ASSOCIATES, INC. 2 4 Robert Forsyth - Direct 1 Q And somewhere within that geographic area 2 would have included the place where Mr. Fowlkes got 3 hurt? 4 A Yes. 5 Q In terms of your resources at that time, 6 was having one section gang normal for that 7 territory, or was that less than normal? I mean, 8 did it used to have -- 9 A It was normal. 10 Q That was pretty much normal? 11 A Yes. 12 Q And at that time, again May 28, 1996, do 13 you know how many people were on Mr. Fowlkes' gang in 14 TM-21? is A The gang had a foreman and three. And one 16 of them, Linwood Ferabee, was riding with me, doing 17 track inspections. And we had a contract backhoe and 18 a contract laborer -- operator and laborer. The 19 contractor was working with the gang, working with 2 0 TM-21. 21 Q Do you remember who those fellows were? I 22 think I probably know. Other than Ferabee, the two 23 others would be Fowlkes and Hughes? 24 A Yes, and Mike Board was the foreman. 25 Q Board was the foreman, the backhoe CRANE-SNEAD & ASSOCIATES, INC. 2 5 Robert Forsyth - Direct 1 operator was the Rocky Bennett fellow? 2 A Right. 3 Q Do you remember who the laborer was? 4 A Linberg -- I don't remember Linberg's last 5 name. I'm sorry. 6 Q What was his first name? I'm sorry. 7 A Linberg, L-i-n-b-e-r-g. I can acquire 8 that for you. 9 MR. COOPER: Steve, would you agree to 10 j.ust get the full name without -- 11 MR. SETLIFF: Absolutely. 12 MR. COOPER: Okay. 13 Q Do you know if that fellow was there on 14 the day that Mr. Fowlkes got hurt? Was the laborer 15 there? 16 A Yes. 17 Q He would have been helping Mr. Bennett 18 with the backhoe? 19 A He would have been assisting in any way 20 Mr. Board -- 21 Q Instructed him? 22 A -- felt appropriate. And Mr. Bennett does 23 not need help in running his backhoe. 24 Q Okay. Is it fair to say that when the 25 Railroad hires independent contractors like Mr. CRANE-SNEAD & ASSOCIATES, INC. 2 6 Robert Forsyth - Direct 1 Bennett and his assisting laborer, they are not 2 Railroad employees, but they're treated as such for 3 purposes of the crew? 4 MR. SETLIFF: Objection to the form of the 5 question. It calls for a legal conclusion. 6 (To the witness) Answer it the best you 7 can, Mr. Forsyth. 8 A They're regarded as contractors working in 9 conjunction with Railroad operations. 10 Q That's actually sort of a compound 11 question. Let me break it down. Those two guys, 12 Bennett and Linberg, whatever his last name is, were 13 not Railroad employees, right? 14 A No. 15 MR. SETLIFF: Same objection. 16 Q No, they were not, right? 17 A No, they were contractors working for the 18 Railroad, for Norfolk Southern. 19 Q Did Board and you have the right to 20 instruct them what to be doing? 21 A Yes. They answer to their employer. if 22 an instance arose where we asked one of these 23 contractors to do something that they didn't feel was 24 consistent with their employer's instructions, they 25 could take that to the employer and they would talk CRANE-SNEAD & ASSOCIATES, INC. 2 7 Robert Forsyth - Direct I about whether or not what we were requesting was 2 appropriate. 3 Q Why was Ferabee taken out of the gang and 4 made part of TM-6 to ride with you? 5 A He was the oldest man. And I need to have 6 someone with me when I'm inspecting track. There are 7 things that I have to do while I'm inspecting track 8 that require additional physical help. And, also, 9 it's a prudent precaution to have two people on the 10 track in case something does come up. 11 Q And when you say -- you're certain that he 12 was the oldest? 13 A Chronologically oldest, yes. 14 Q Is that because essentially it's an easier is thing to ride with the assistant track supervisor, or 16 is that because -- 17 A Physically it's generally less demanding. 18 Q And it looks like after Mr. Fowlkes, 19 injury, when he reported back to work the next day, 20 he was allowed to ride with you for a couple of days. 21 A Curtis rode with me, and then we had a 22 flagging job, providing protection for contractors 23 working for the City of Richmond. It's the 24 construction of a combined sewage outlet program. and 25 Mr. Fowlkes also worked as a flagman, protecting CRANE-SNEAD & ASSOCIATES, INC. 2 8 Robert Forsyth - Direct 1 those operations. 2 Q Do you remember what day of the week he 3 got hurt? 4 A Tuesday. 5 Q And you first actually saw Curtis the next 6 day, on Wednesday? 7 A Correct -- actually talked to Curtis. 8 Q Do you know how many days he worked that 9 week? 10 A Curtis came to work each day. 11 Q You mean Wednesday, Thursday, Friday? 12 A To the best of my recollection, he was 13 there all five days. 14 Q I take it you don't have an exact 15 recollection of what his schedule was? 16 A The flagging takes place on the weekends, 17 as well. The contractor works on the weekend. I 18 don't recall whether or not Curtis worked that 19 Saturday providing flagging protection. 20 Q But you do recall that because he had 21 claimed his knee was hurt, that you all took him out 22 of what he was doing, his active duty labor and stuff 23 on the crew, and allowed him to ride in the truck 24 with you? 25 A Curtis had said that his knee was stiff, CRANE-SNEAD & ASSOCIATES, INC. 2 9 Robert Forsyth - Direct I and I allowed Curtis to ride with me. 2 Q In terms of the job that he was doing when 3 he got hurt, I take it you probably have done that, 4 meaning used the hydraulic hammer to spike ties. 5 A Yes, I've done that. 6 Q How many times? Are we talking on the 7 order of tens? Hundreds? Thousands? 8 A It's difficult to calculate the number of 9 times I've done it. In the years when I was a 10 laborer, we generally spiked the ties with spiking 11 hammers. 12 Q The manual hammer? 13 A Right. My laboring predates the advent of 14 the hydraulics. 15 Q Do you remember when that came in, 16 roughly? 17 A This is the first gang truck that came to 18 Richmond with hydraulics. 19 Q Do you remember roughly what year that 2 0 was? 21 A That was 194. Prior to 194, we had used, 22 in some instances, pneumatic tools. 23 Q What is the difference -- and I am not 24 very mechanical. 25 A Pneumatic? CRANE-SNEAD & ASSOCIATES, INC. 3 0 Robert Forsyth - Direct 1 Q What is the difference between pneumatic 2 and hydraulic? 3 A Pneumatic is air; hydraulic is power- 4 assisted. 5 Q But I guess pneumatic would also be 6 power-assisted in a sense, in other words, there 7 would be something just beyond a man's body creating 8 the motion to drive the spike. 9 A Right. 10 Q How long were the pneumatics in before the 11 hydraulic? 12 A Pneumatics had been around as long as I 13 can recall. Hydraulics had been around; we just 14 couldn't find ways to fit them onto -- we just needed is a smaller package. 16 Q Is doing it pneumatically pretty much as 17 easy as doing it hydraulically? 18 MR. SETLIFF: Objection to the form of 19 the question. it's subject to different 20 interpretation and it's ambiguous. 21 (To the witness) Answer it the best you 2 2 can. 23 A Clarify easier. Could you clarify easier 24 for me? 25 Q Do you know what easier means? I don't CRANE-SNEAD & ASSOCIATES, INC. 3 1 Robert Forsyth - Direct 1 know -- I mean, is it physically more demanding? 2 A The physical actions are similar. You 3 know, the tools are configured in a similar way. 4 Q And they're both easier in the sense of 5 less physically demanding than banging it with an 6 actual manual hammer, right? 7 A Yes. 8 Q How many times have you done it with a 9 hydraulic hose? 10 A I can't tell you exactly. 11 Q Again, can you give me the factors that 12 went into -- dozens or hundreds? 13 A Dozens. 14 Q How many of those were done -- and I'm 15 just going to preface, those being -- well, let me 16 start again. when did they put the reel on the 17 truck? 18 A The reel was installed in July -- 19 Q Of ? 20 A 1996. No, excuse me. The reel was 21 acquired in July of 1996; it was installed in 22 February of 1997. 23 MR. SETLIFF: May the record reflect that 24 that truck is the truck that was assigned to 25 TM-21? CRANE-SNEAD & ASSOCIATES, INC. 3 2 Robert Forsyth - Direct 1 MR. COOPER: Right. 2 Q What do you call that truck? 3 A 3 9 4 6 1 0 . 4 Q So that's the, in other words, number that 5 goes with the truck -- 6 A Yes. 7 Q -- that was involved in Mr. Fowlkes, 8 accident, that crew's truck? 9 A That was the truck used by TM-21 on the 10 day of Mr. Fowlke's incident. 11 Q From here on out -- let's talk some 12 definitions, just so we'll always be talking about 13 the same thing -- when I say "that truck" or "the 14 truck," I'm talking about -- 15 A 3 9 4 6 1 0 . 16 Q Exactly, unless I say otherwise. Is that 17 f a i r ? 18 A That's fair. 19 Q And when I say "the reel," I've also taken 20 to calling it a threader or a -- I believe a 21 threader. What do you use to describe this thing 22 that takes up the hose that's on the truck now? 23 A A hose reel. 24 Q Hose reel. 25 A But I understand what you're referring to I CRANE-SNEAD & ASSOCIATES, INC. 3 3 Robert Forsyth - Direct 1 by threader. 2 Q Okay. So if I use those terms inter- 3 changeably, again unless -- 4 A Unless I have some confusion -- 5 Q Thanks. 6 A -- I'll understand. 7 Q So the threader that was put on in 8 February of 197, and acquired in July of 1996, is the 9 one that I saw the other day when we did the site 10 inspection? 11 A Yes. 12 Q And that's pretty much been on there 13 continuous since that time? 14 A Yes, since we installed it, it has not 15 been removed. 16 Q Now, I understand there was some delays in 17 being able to figure out how to install it, because 18 of the hydraulic system. Why did it take whatever 19 number of months that is from July of 196 to February 20 of 197 to put it on? 21 A The process, because each one of these 22 things, to my knowledge, is an individual process of 23 mounting this reel on, again, it had to be studied. 24 It had to be studied by the installer. The installer 25 in this instance was Hesco, here in Richmond -- CRANE-SNEAD & ASSOCIATES, INC. 3 4 Robert Forsyth - Direct 1 H-e-s-c-c. There were concerns with the hydraulics 2 on the truck, and coming up with an appropriate 3 modification that benefitted us instead of made the 4 hydraulics less useful. 5 And the hydraulics are an asset to the 6 operation of the gang. Having the hydraulics down 7 because of something we did improperly was a 8 consideration in the installation of the other hose 9 reel. 10 Q Were you actively involved in either a 11 study of how to mount it, or the actual installation 1 2 of it? 13 A By the time the hose reel was installed, 14 there was a fellow, Rick Meredith, who was working is here in Richmond as the track supervisor. And Rick 16 had a more immediate involvement with the actual 17 installation of the hose reel. 18 Q When did Rick come on as track supervisor? 19 A In September of 196. 20 Q And so at that point, he became your 21 immediate supervisor? 22 A That's correct. 23 Q And so he would have overseen the 24 process of installation; it would have been under 25 his responsibility? CRANE-SNEAD & ASSOCIATES, INC. 3 5 Robert Forsyth - Direct 1 A Yes. 2 Q But the Railroad hired Hesco to come in 3 and do the mounting? 4 A We had used Hesco for hydraulic repairs on 5 this gang truck before. And Hesco is a local outfit, 6 so they were the choice as the installer. 7 Q Now, as best I understand it, the 8 manufacturer of the reel is Hannay, H-a-n-n-a-y. 9 Does that sound right? 10 A That's correct. 11 Q Do you know whether it was bought as an 12 off the rack, you know, this is model 324, or 13 whatever it is, or was it modified somehow other than 14 those hydrualic modifications? 15 A my understanding is that it was an 16 available reel. It was not -- we had to find the way 17 to mount it on the truck. There is no place on the 18 truck that's set up for a high rail -- or excuse me, 19 for a reel, a hose reel. We had to affix the hose 20 reel that we acquired to the gang truck. 21 Q In fact, I think the main problem, other 22 than coming up with a place to mount it, was to make 23 sure that it didn't make the hydraulic system run too 2 4 hot. 25 A That's correct. CRANE-SNEAD & ASSOCIATES, INC. 3 6 Robert Forsyth - Direct 1 Q I take it even before the reel was put on 2 there, the hydraulic hoses can get hot. 3 A Yes. 4 Q Just because there's hot water run through 5 i t ? 6 A No, hydraulic fluid under pressure. 7 When you increase the pressure in fluids, you 8 increase heat. And the pressures inside of the 9 hydraulic system of the truck are fairly high. And 10 some of these tools are designed to withstand, I 11 think, up to 2,000 of pressure. I'm not sure of the 12 exact operating pressure of the hydraulic system in 13 our truck. But at those kinds of pressures, you 14 generate heat within the fluids themselves, the 15 hydraulic fluids that operate the tools. 16 Any constriction in that hydraulic system, 17 that increases pressure, increases heat, and that 18 heat then is transferred by the fluid to the tools. 19 The tools are metal, so that heat is then transferred 20 to the tools. 21 Q Just by this process. if you can call it 22 that, you might increase the pressure, and at that 2 3 point -- 24 A You have to add piping to the system, as 25 well as bends in the piping to get the hydraulic CRANE-SNEAD & ASSOCIATES, INC. 3 7 Robert Forsyth - Direct 1 fluid up to the reel from the block that's located 2 at the rear of the truck. 3 Q So the actual fix that they designed was 4 some pipings running from the back up to the 5 mounting? 6 A After you get the hydraulic from the 7 outlets at the rear of the truck, up to the location 8 of the reel, it's mounted on top of the bed of the 9 truck, tool bed of the truck. This will require 10 running additional piping and will require bends in 11 the piping tube to follow the flow route. 12 Q If David Goode had come up from Norfolk 13 and said, by golly! I want a reel on this truck and I 14 want it tomorrow, how long do you think it would have 15 taken -- what is the soonest amount of time it could 16 have taken from the date that you all acquired it, to 17 get Hesco to do what they had to do and figure out 18 the fix and get it done? 19 MR. SETLIFF: Objection. It's 20 speculative. 21 A I have no idea. 22 Q Could it have been done faster than that? 23 MR. SETLIFF: Objection. That's 24 irrelevant and speculative. 25 MR. COOPER: (To the witness) Go ahead. CRANE-SNEAD & ASSOCIATES, INC. 3 8 Robert Forsyth - Direct 1 A I have no idea. 2 Q Were there any delays that you're aware 3 of, particularly in -- 4 A In finding a way to do this? 5 Q Yes. 6 A I recall certain problems. I can't give 7 you specifics. They had to be -- 8 Q How much of a priority did you all make it 9 to get that done? 10 MR. SETLIFF: Objection. 11 A As compared to -- 12 MR. SETLIFF: I object to the form of the 13 question. It's vague. 14 (To the witness) Answer it if you can. is Q Who actually made -- who actually gave the 16 order to say, let's put this thing on? 17 A We were looking at putting it on there for 18 a while. I can't give you the exact dates we began 19 looking at installing the hose reel. 20 Q Who would have had to have given the final 21 okay to say, yes, we're going to do it; let's go 22 ahead and buy it? 23 A We would apply to the office of the 24 division engineer, that's through Scott Snow, and 25 Scott Snow would have been the assistant division CRANE-SNEAD & ASSOCIATES, INC. 3 9 Robert Forsyth - Direct 1 engineer at the time -- for the purchase of a hose 2 reel. The purchase of any material had to go through 3 our boss, to approve the purchase. 4 Q I saw the name McKibbon on a hunch of 5 papers. What would -- 6 A He would have been Mr. Snow's boss, the 7 division engineer. 8 Q But even as assistant division engineer, 9 Snow could have ordered it? 10 A He could have okayed the order, yes. 11 Q Is it your understanding it was, in fact, 12 Snow, who did order it? 13 A Yes. 14 Q Do you know when the order was made -- 15 A Approved the order. 16 Q Approved the order. Do you know when the 17 order was made to acquire it? 18 A No, I don't have that information. 19 Q Did Snow or McKibbon or anyone, or for 20 that matter, Rick Meredith, put any pressure on you 21 or Hesco to say, this is really an urgent thing, or a 22 very important thing; we want this to be given 23 priority? 2 4 25 NOTE: There is a brief recess in order CRANE-SNEAD & ASSOCIATES, INC. 4 0 Robert Forsyth - Direct 1 for Mr. Setliff to answer the phone, after 2 which the deposition resumes as follows: 3 4 A Your question again? 5 Q What I'm asking you is, were you aware of 6 anybody putting any pressure on the people who were 7 involved in installing the reel? 8 A On myself or Hesco to rush the job? 9 Q Yes, absolutely. Was there any 10 conversations stating that this reel needs to be 11 done; why is it taking so long? Was anybody 12 inquiring about delays? 13 A That it was not being performed in a 14 timely manner? 15 Q Yes. 16 A No, there was no question about that. The 17 job was not ordered to be rushed. 18 Q Why was it that the reel was ordered? 19 A Reels were being ordered to go on other 20 gang trucks and, of course, we put in for the 21 acquisition and applied for the reel. The purchase 22 was approved, and then we went through the process of 23 finding a way to mount the thing. 24 Q And so the Railroad was in the process of 25 putting these on all crew trucks? CRANE-SNEAD & ASSOCIATES, INC. 4 1 Robert Forsyth - Direct I A I can't really answer that accurately. 2 Q Well, I take it that you had a sense that 3 they were putting it on other trucks. 4 A I have seen them on other trucks. s Q Were they on other trucks in the 6 Railroad's fleet before this? 7 A Best of my recollection, I had seen hose 8 reels mounted on other gang trucks. 9 Q When approximately was that? 10 A I can't give you an accurate date on it, 11 but approximately prior to 1996. And the 12 conversation in staff meetings, other track 13 supervisors had broached concerns about hydraulic 14 reels that had been installed, and with trouble- 15 shootings, and how we could figure out ways to handle 16 some of the problems that they had encountered with 17 the installation of these reels. 18 Q So you had seen them or were aware that 19 they were on other trucks in the fleet as early as 20 1995, sometime in 19S? 21 A Prior to 1996, yes. Probably 1995, but I 22 can't tell you the exact date on this. 23 Q Isn't it true though that when the 24 discussions were first taking place about you all 25 acquiring one -- do you recall approximately when CRANE-SNEAD & ASSOCIATES, INC. 4 2 Robert Forsyth - Direct 1 that was? 2 MR. SETLIFF: About TM-21 truck? 3 MR. COOPER: About TM-21 getting one on 4 their truck. 5 A You mean as an outside thing? 6 Q When was the earliest discussion in any 7 form, either among the supervisors or the workers 8 asking for it, where we said, we'd like to have or 9 were considering getting a reel for this truck? 10 MR. SETLIFF: That's a compound question. 11 I object to the form. 12 (To the witness) Answer the best you can. 13 MR. COOPER: Do you need me to break that 14 down? 15 A I had described -- 16 Q What I'm asking is, what do you believe is 17 the earliest date that you heard any discussion on 18 that? 19 A I don't think I can really give you an 20 accurate answer to that. 21 Q Let me tell you: In the investigation -- 22 A There had been conversations about what 23 our position was about a hose reel prior to 196, May 24 of 1996. But I can't tell you accurately when I 25 first heard any conversations regarding a hose reel. CRANE-SNEAD & ASSOCIATES, INC. 4 3 Robert Forsyth - Direct 1 Q It's fair to say then that there, at 2 least, were some conversations in 1995, that being 3 earlier than 1996? 4 A No, I can't tell you that. See, we're 5 talking May of 1996, which is the date of this 6 injury. 7 Q Right. 8 A All right. So that doesn't extrapolate 9 that because of this incident in May of 1996, that 10 sometime prior to 1995, there were conversations. 11 Q No, I'm not saying prior to 1995. Listen 12 to my questions. Okay? What I'm saying is, you said 13 that you believed it was sometime before 1996. 14 MR. SETLIFF: He said May of 196. 15 MR. COOPER: Before May of 196. All 16 right. 17 Q In an investigation that was done on Mr. 18 Fowlkes, either you or Mr. Snow, I believe, indicated 19 that approximately one year before this man's injury 20 was when the first discussions occurred. Does that 21 sound approximately correct? 22 A Discussions of what? 23 Q of putting a reel on the truck. 24 A On this specific truck? 25 Q Yes, sir. CRANE-SNEAD & ASSOCIATES, INC. 4 4 Robert Forsyth - Direct 1 A I'm sorry, I can't be that specific. I 2 can't be that specific. It must have been Mr. Snow 3 -- I can't be that specific. 4 Q All right. Well, you said that it was 5 sometime before. Can you give me a factor? Was it 6 days before Mr. Fowlkes' injury that discussions 7 occurred? 8 A No. It was months. 9 Q Moriths. 10 A There's no clear date that stands out when 11 we talked about hose reels and putting them on. we 12 talked about it a couple of times -- Monday morning 13 meetings: Is it a good thing to do, and is it 14 something that we want; why do we want it; what does 15 it do for us; what are the possible things that it 16 could do that harm us. There's no date when these 17 conversations began. 18 Q Because you don't recall exactly? 19 A No. 20 Q Is there any documentation of it? Would 21 there have been anything in writing? 22 A No, not to my knowledge. 23 Q And are there any ready sources of 24 documents that you could go refer to where you think 25 it might be, in the safety meeting minutes that you CRANE-SNEAD & ASSOCIATES, INC. 4 5 Robert Forsyth - Direct 1 do keep, or that are kept? 2 A We could look. I don't know that anybody 3 would have jotted down that this was an item of 4 discussion. 5 Q But if they did write it down, where would 6 they write it? 7 A On the Monday morning safety meeting 8 minutes, which is not anything as exacting as what 9 is being performed here. It's just they put 10 something -- they covered safety rule such and such, 11 and talked about Mr. Woodfin, regarding -- Mr. 12 Woodfin is the vice president -- regarding the 13 reading of, the focus of the week, such as indury 14 examinations. So it is not comprehensive minutes. 15 Q Understood. But I take it that there are 16 always some minutes from those Monday safety 17 meetings? 18 A Every Monday morning, a quick report was 19 made concerning some of the topics. 20 Q Who keeps those? 21 A We might have some in our file cabinet. 22 I'm not sure how far back they go. We have gone 23 through now, since 195 -- (Counting) One, two, 24 three, four track supervisors, including the time 25 when I was doing the job. So each one of these guys CRANE-SNEAD & ASSOCIATES, INC. 4 6 Robert Forsyth - Direct 1 comes in and goes through the file cabinet. I'm not 2 sure what they keep. I mean, it's aboveboard. 3 Q As assistant track supervisor, I take it 4 you were probably the guy that got stuck doing the 5 reports and keeping the filing. 6 A No. 7 Q Who is that? 8 A No, that's the track supervisor. 9 MR. COOPER: Counsel, could I have your 10 agreement as part of our production request 11 I'm sure it's broad enough to encompass this 12 that you will go and look for reports going 13 back discussing reels? 14 MR. SETLIFF: I'll go back and check your 15 request and see what we've got. 16 MR. COOPER: Okay. 17 (To the witness) If you would cooperate 18 with -- I assume that you could help Mr. 19 Setliff. 20 THE WITNESS: Sure. 21 MR. COOPER: Thank you. 22 Q So I take it that the discussions that 23 occurred about putting a reel on would have occurred 24 at Monday safety meetings, as well as at some other 25 type meetings. CRANE-SNEAD & ASSOCIATES, INC. 4 7 Robert Forsyth - Direct 1 A They gathered together -- the gang 2 gathered together in, yeah, the track supervisor's 3 office at the beginning of each workday. So 4 identifying the exact date or occasion of the 5 gathering, in my recollection, is impossible. But 6 the gang does gather in the same setting every 7 morning. 8 Q Yes, sir. Would there have been any other 9 setting where reels were discussed other than at the 10 Monday safety meetings and the daily safety meetings? 11 A I would say at larger safety meetings. 12 Q I'm sorry? There are larger safety 13 meetings? 14 A There's a safety meeting going on today 15 in Sheldon's in Keysville, Sheldon's Restaurant in 16 Keysville, where a number of different gangs get 17 together. This would have been Snow's territory; now 18 it's Jeff Gerhart's territory, where he's addressing 19 these guys. There are a number of gangs together -- 20 if it's that type of format, it's that type of 21 setting that you're referring to. 22 Q okay. And is there an official Union 23 representation at those meetings? 24 A No. 25 Q Is there some kind of safety meetings CRANE-SNEAD & ASSOCIATES, INC. 4 8 Robert Forsyth - Direct 1 where the Union is invited to participate? 2 A There are safety banquets each year where 3 the Union is invited to participate. 4 Q Do you remember whether this was ever 5 discussed at any of those? 6 A No. That wouldn't be the appropriate 7 setting. A safety banquet is a large gathering where 8 they are identifying or are recognizing people that 9 have exemplary safety records. And the Union is 10 there, the Federal Railroad Administration is there, 11 dignitaries are there. 12 Q I've got you. Mr. Snow's territory, as an 13 assistant division engineer, is that broader than the 14 Richmond District? is A Yes. 16 Q What is his turf called? 17 A It's the East End of the Virginia 18 Division, and that would cover five track 19 supervisors' territory. 20 Q As far as -- 21 A Six supervisors' territory. Excuse me. 22 Q What do you call those meetings when they 23 get groups of track supervisors together? 24 A A safety meeting -- groups of track 25 supervisors together? CRANE-SNEAD & ASSOCIATES, INC. 4 9 Robert Forsyth - Direct I Q The bigger meeting that you're talking 2 about, what do you call that? Is there a name for 3 that? 4 A The one where the Union would he present? 5 Q No, no, not the banquet, the one in 6 between those, the one where you said that Snow would 7 get groups of gangs together. 8 A Multi-gang safety meetings that include a 9 number of different gangs in different locations. 10 That's a safety meeting or quarterly safety meeting. 11 Q Are minutes taken of those? 12 A No, I don't believe so. They probably 13 have like an itinerary (sic) written down somewhere, 14 things that they want to cover during the course of 15 the meeting. But no, minutes are not taken. 16 They're just talking about railway 17 workers, concerns, any railway worker rules that have 18 been ushered in in the last several years. 19 Q So if anyone would have kept such minutes, 20 it would be Snow or someone at the division engineers 21 office, right. 22 A I honestly believe that no such minutes 23 would be kept. The minutes would not be kept. They 24 might have a plan for the meeting, in other words, 25 what they would talk about. CRANE-SNEAD & ASSOCIATES, INC. 5 0 Robert Forsyth - Direct 1 Q Well, specifically do you recall about the 2 discussions prior to the acquisition of the reel 3 about, why we want to get a reel -- I mean, why would 4 it be better for the workers; what would be the help? 5 A It would be -- the first benefit to the 6 guy out there using the hydraulic system with the 7 addition of the reel is that it makes storing and 8 deploying the hose a great deal easier. That's the 9 biggest single benefit to the reel, which is finding 10 a way to store the hose. 11 Let's say we were doing a job where 12 somebody like Curtis was doing in May of 196, and we 13 were gauging three locations, each 200 yards apart. 14 After completing in each location, say 15 feet of 15 gauge, after the place had been gauged, that hose 16 would have to be handled, loaded onto the bed of the 17 truck, the truck moved to the new location, maybe 100 18 feet, 200 feet away, unloaded, redeployed, stretched 19 out, the gauging done, that hose picked up, loaded 20 onto the truck, another 100 feet -- everytime that 21 they had to do a job, that hose had to be unloaded 22 physically and then picked up physically and put back 23 onto the bed of the truck. 24 So the greatest advantage in the addition 25 of a hose reel is finding an easier way to store and CRANE-SNEAD & ASSOCIATES, INC. 5 1 Robert Forsyth - Direct then to deploy the hose as you're out at the work 2 s i t e . 3 Q What other benefits would there be to 4 having a reel? 5 A You get the free-up space in the toolbox 6 where that large hose, not very pliant hose, would 7 have taken up space. You use the space for other 8 things on the gang truck. You remove the hoses from 9 some risk of damage from other tools that's on top of 10 them if they're not taken care of carefully. And 11 that's just generally a good addition to the truck. 12 There are some concerns that have to be addressed 13 before its installation. 14 Q Can you think of any other benefits of the is reel? 16 A other than easy deployment and storage? 17 Q I'm talking about -- I'm mainly concerned 18 about safety of workers. Are there any benefits that 19 you see for the safety of workers for having the 2 0 reel? 21 A You didn't get a chance to try to pick up 22 those hoses Friday. Handling those hoses would be a 23 concern. If the storage of the hose is made easier, 24 then that's just a safety that's being addressed. 25 Q So the hoses are, first of all, fairly CRANE-SNEAD & ASSOCIATES, INC. 5 2 Robert Forsyth - Direct 1 heavy, I take it. 2 A Unwieldy. 3 Q I mean really, they get get tangled, and 4 loops, and that sort of thing if you don't have a 5 reel? 6 MR. SETLIFF: Objection to the form of the 7 question. Mischaracterizing his testimony. 8 MR. COOPER: It's not necessarily leading. 9 A It just depends on how well the hose is 10 managed by the responsible employee. 11 Q But it could get tangled up once it -- 12 A The hose taken from the reel can get 13 tangled up. 14 Q But the reel, because it makes the pulling is easier, would make that less likely to get tangled, 16 is it fair to say? 17 A If not managed and maintained properly by 18 the responsible employee, not necessarily. It could 19 be just as easily tangled. 20 Q I'm trying to determine what you mean. I 21 think it's a fair statement that safety is increased 22 by the ease of the handling of the hose. I'm trying 23 to figure out why that would be. What are some of 24 the risks that the hose presents to a worker that 2S could potentially get him injured that -- CRANE-SNEAD & ASSOCIATES, INC. 5 3 Robert Forsyth - Direct 1 A Just handling the hose, picking it up and 2 getting it on the bed of a truck. You've got to hand 3 the hose up to an employee who is on the bed of the 4 truck already, then he's got to deploy the hose from 5 the bed of the truck. It's just that it increases 6 the possibility of tripping in the bed of the truck. 7 The lift of the hose by the employee to the employee 8 who would be waiting in the bed of the truck, or the 9 employee who is on the ground trying to just throw 10 the hose, doing that himself and just shoving it up 11 on the gang truck, or in the bed of the truck. And 12 apart from safety, if the job is done conscientiously 13 and perceptively, then it doesn't need to be unsafe. 14 That's a labor thing. It can be fairly difficult to 15 pick those hoses up and store them. 16 Q Do they also get hot? Well, you've 17 already said that. When they get hot from use, do 18 they sweat? Does moisture come on the exterior of 19 the hose? 20 A That hasn't been my experience. If the 21 hydraulic fluid gets so hot, it's going to actually 22 evaporate, you know, condensation wouldn't be on 23 there. So it would be too hot for condensation. 24 Q How about the hammer itself: When it gets 25 real hot, does it cause the metal on the hammer to CRANE-SNEAD & ASSOCIATES, INC. 5 4 Robert Forsyth - Direct 1 sweat? 2 A Not to my knowledge. No, that would be a 3 design concern for Stanley Tools. And to my 4 knowledge, they don't sweat. 5 MR. SETLIFF: John, we've been going for 6 an hour and ten minutes. Can we take a 7 five-minute break, please? 8 MR. COOPER: Sure. 9 10 NOTE: Recess is had from 9:55 A.M. until 11 10:02 A.M., after which the deposition resumes 12 as follows: 1 3 14 Q When we left off, we were talking about is some of the benefits of having a reel, and you were 16 saying that some of the benefits of it being easier 17 to pull and store and so on would be that it would 18 tend to increase safety, also, by, among other 19 things, you know, having people to do less back and 20 forth, less moving of the hose and, therefore, less 21 opportunities to trip or have something bad happen. 22 Is that fair to say? 23 A No, that's not fair to say. 24 MR. SETLIFF: No, that's not what he said. 25 Q Tell me again what then you think the CRANE-SNEAD & ASSOCIATES, INC. 5 5 Robert Forsyth - Direct 1 safety benefits are of the reel. 2 MR. SETLIFF: That's asked and answered. 3 MR. COOPER: Obviously I misunderstood 4 him. 5 (To the witness) So you can go ahead and 6 answer it. 7 MR. SETLIFF: (To the witness) Answer it 8 the best you can, Bob. Think about your prior 9 testimony before you do. 10 A Being that the hose is not a very pliable 11 hose to enforce, it would handle the pressures of the 12 hydraulic fluid being pumped through it; and storing 13 the hose -- 14 Q I'm just talking about things that relate 15 to safety right now. 16 A Storing the hose, handling it while you're 17 storing it -- and it's not as easy as, say, winding 18 up a garden hose. So being able to retract it and 19 store it in the reel is an easier operation than 20 actually having to pick up the hose and put it in its 21 box up on the bed of the truck. 22 Q And that has some bearing on safety? 23 A It makes the job easier? 24 Q And therefore safer, also? 25 MR. SETLIFF: Objection to the form of the CRANE-SNEAD & ASSOCIATES, INC. 5 6 Robert Forsyth - Direct 1 question. 2 (To the witness) Answer the best you can, 3 Bob. 4 A It makes the job easier. You're asking me 5 that it's easier, therefore, it's safer? 6 Q That's what I'm asking you. That's the 7 question. Would it he -- 8 A It's not always, therefore, safer. 9 Q In this particular case, would it be? 10 A I'd say that, yeah, it can make the job 11 safer by making it easier, or if you can make a job 12 easier, there's a chance that you make the job safer. 13 Q I take it that part of why you're saying 14 that is if the man is fatigued, he might tend to be 15 more injury-prone than if he is not fatigued. 16 MR. SETLIFF: Objection. That's 17 speculative. It has no relevancy to this 18 particular injury. 19 (To the witness) But answer it the best 20 you can. 21 A Do I have special expertise in this? 22 Q I'm not asking you for any expertise. 23 A Whether a man who is fatigued is more 24 likely to make a mistake than a man who is not 25 fatigued? CRANE-SNEAD & ASSOCIATES, INC. 5 7 Robert Forsyth - Direct 1 Q You would agree with that, right? 2 MR. SETLIFF: I have a continuing 3 objection to the form of the question. 4 MR. COOPER: Sure. 5 A That would be within the realms of our 6 experience, yes. 7 Q You know that from being a laborer, that 8 when you get fatigued, it's harder to do your job as 9 well, right? 10 MR. SETLIFF: Same objection. 11 MR. COOPER: You have a continuing line of 12 objections on these lines, Counsel. 13 A You still have to focus on performing 14 your job s@fely and effectively. And you have 15 responsibilities. So no one else can monitor what 16 your experience is at that moment. 17 Q But I'm just asking you the proposition, 18 would you agree, from your experience as a laborer, 19 that when you tended to get fatigued, it was harder 20 to focus and do as good a job? 21 A And how does this relate to the hose reel? 22 Q No, I'm just asking -- 23 A It has nothing to do with the hose reel. 24 Q I'm just asking a general question, Mr. 25 Forsyth. I'm not trying to -- let me say that I'm CRANE-SNEAD & ASSOCIATES, INC. 5 8 Robert Forsyth - Direct 1 not trying to get at anything. Just listen to my 2 question, and just answer the question. And what I'm 3 asking you -- do you remember the question that's on 4 the table? 5 A If you are fatigued -- 6 MR. SETLIFF: Before you answer that, let 7 me interpose an objection. I think this almost 8 calls for an ergonomic, medical opinion to link 9 up the possibility to the extent that you're 10 more fatigued, you're more injury-prone. I 11 think it goes into an ergonomic opinion. For 12 that reason, I have to interpose an objection 13 to the form of the question. I think it's 14 irrelevant and not calculated -- is (To the witness) But answer the best you 16 can, Bob. 17 MR. COOPER: Counsel, again, you don't 18 know what I've got reserved to the time of 19 trial. Except as to form -- I think that needs 20 to be corrected here. I think you know the 21 rules as well as I do. 22 I'd ask that you please try to limit your 23 interruptions, especially when we give you a 24 continuing line of objections. Okay? That's 25 on the record. CRANE-SNEAD & ASSOCIATES, INC. 5 9 Robert Forsyth - Direct 1 (To the witness) Go ahead. 2 THE WITNESS: Please restate your 3 question. 4 NOTE: The pending question is read by 5 the court reporter. 6 A Not necessarily harder to focus, and does 7 not necessarily compromise your ability to do the 8 job. If you're fatigued, you have to be aware of 9 your state and take steps to protect yourself and the 10 people that are working with you. 11 Q Did it ever happen -- 12 A If you are fatigued -- and I would use the 13 analogy of driving an automobile. Then you stand a 14 better chance of making a mistake driving the 15 automobile than you would if you were fresh. 16 Q I'm just asking from your actual 17 experience, do you ever remember at any time in your 18 Railroad career being fatigued and realizing that you 19 weren't being quite as safe as you -- 20 A Becoming fatigued and then finding myself 21 more likely to make a mistake? 22 Q Yes. Has that ever happened to you? 23 A I think that's a concern that I have had 24 to address. 25 Q Now, in terms of other reasons why the CRANE-SNEAD & ASSOCIATES, INC. 6 0 Robert Forsyth - Direct 1 easier deployment with the reel might improve safety, 2 is it fair to say that's because there's a whole lot 3 less actions that are required to deal with the reel, 4 less movement by the worker because the machine is 5 doing part of the job for you? 6 A What part of the job is the machine doing? 7 Q Well, remember, you said that in terms of 8 if you had to keep moving every 15 feet down the 9 track, under the old system, without the reel -- 10 A More like 100 feet. You can't drag the 11 hose behind the truck or drag the hose with the 12 hammer attached behind the truck. That would be 13 asking somebody to carry this hammer as they move 14 forward. You can't detach the hammer and just drag 15 the hose because there's a chance that you'll damage 16 the fitting, the way you plug the hammer in. The 17 hose has to be stored before the truck is moved, even 18 if it's only moving a hundred feet. 19 Q So under the old system, if you were 20 going to move that hundred feet, somebody would have 21 to physically take the hose, get it up on the truck 22 and -- 23 A Store the hose on the truck. 24 Q -- store it, move the truck, take it back 25 off, and reattach it to the hammer? CRANE-SNEAD & ASSOCIATES, INC. 6 1 Robert Forsyth - Direct 1 A Yes. 2 Q And then proceed with the next job? 3 A Yes. 4 Q Whereas what makes it easier with the 5 retracting threader is that all you have to do is 6 give one tug -- 7 A Correct. 8 Q -- and like a window shade, it moves on up 9 into the reel? 10 MR. SETLIFF: (To the witness) Listen to 11 his question. Do you understand what he just 12 asked you? 13 A You asked if it touched the hammer and 14 then moved into the appropriate position to feed the is hose into the reel? 16 Q And feed very easily. 17 A It's a good tool. 18 Q Is it similar to a window shade that we 19 essentially pull down, that kicks in the retracting 20 part that sucks it back up into the reel? 21 A Yes. 22 Q And the other thing is that when you are 23 using -- with respect to that, it makes that job 24 easier, and therefore, there's less motion and 25 activity that the worker has to do to store the reel? CRANE-SNEAD & ASSOCIATES, INC. 6 2 Robert Forsyth - Direct 1 A Yes. If you're in one location, that's 2 not the case. 3 Q Now, when you're hammering a spike with a 4 hydraulic system, how much slack do ycu need behind 5 you or beside of you to operate the -- 6 A You need enough slack to give you freedom 7 of movement. 8 Q And part of your movement is, for 9 instance, if you're going to go from the outside 10 spike on a given plate to the inside spike, you've 11 got to lift it up and over the rail, correct? 12 A Yes. 13 Q How high is the rail off the ground? 14 A The rail sizes vary. 15 Q Approximately 8 to 10 inches off the 16 ground? 17 A No. Curtis was spiking on a rail that's 18 100 RE, getting into the Railroad esoteria. And 19 100 RE rail is about 6 inches high. 20 Q You're saying where Curtis was working was 21 about 6 inches high? 22 A Right. 23 Q Is that 6 inches off the plate or off the 2 4 tie? 25 A The actual profile of the rail was about 6 CRANE-SNEAD & ASSOCIATES, INC. 6 3 Robert Forsyth - Direct 1 inches. 2 Q When you say profile, you mean from the 3 ground to the top of -- 4 A No, no, no. If you add the plate, you'll 5 add another quarter to three-eights of an inch. 6 Q So you would have to lift it well clear of 7 those 6 plus inches to move it from the outside rail, 8 the outside spike to the inside spike? 9 MR. SETLIFF: Objection to the form of the 10 question. I'm not sure what well clear means. 11 (To the witness) But answer it the best 12 you can. 13 Q Do you know what well clear means? 14 A You don't want to catch the hammer on the 15 top of the rail. 16 Q You've got to be sure to clear it? 17 A So you've got to make sure you clear the 18 rail. 19 Q And in order to clear it, you've got to 20 get at least several inches up above it to make sure 21 you're not going to catch it, right? 22 A Well, I play tennis, and some tennis 23 players can do some amazing things with very little 24 room -- develop superior depth perception, superior 25 muscular control. CRANE-SNEAD & ASSOCIATES, INC. 6 4 Robert Forsyth - Direct 1 Q And obviously each man is different as to 2 what he feels comfortable with? 3 A But you want to be sure, just make sure 4 that you've cleared the reel. 5 Q How much clearance -- when you have made 6 that motion from the outside spike to the inside 7 spike, how much clearance would you normally want to 8 get? 9 A Well, I'd say, because I'm about six feet 10 tall and the hammer measures about 30 inches or so, 11 so naturally I could clear six inches very easily. 12 Q How much above the six inches would you go 13 though to make that movement? 14 A I can't say. It never occurred to me to 15 measure or to stop in mid-motion and -- 16 MR. SETLIFF: The question is unintelli- 17 gible because you're saying, how far do you 18 have to go over the rail. And I don't know 19 what he's measuring from and to, and where he 2 0 went. 21 THE WITNESS: I'm sure my answer is 22 unintelligible as well. 23 A But I'd say probably it clears the rail by 24 several inches. 25 Q And a shorter man might feel the need to CRANE-SNEAD & ASSOCIATES, INC. 6 5 Robert Forsyth - Direct 1 pull it up even higher than a taller man? 2 MR. SETLIFF: objection. It calls for 3 speculation. 4 (To the witness) Answer it the best you s can. 6 A Depending on how short you're talking 7 about. You've got a range of heights out there. 8 Q Mr. Fowlkes is a fair bit shorter than 9 you, is that correct? 10 A I guess Curtis is about five six -- I 11 guess -- and I'm a little under six feet. 12 Q So when you're making that movement, 13 again, approximately how much slack do you feel that 14 you would need to have on the ground with you, making is that motion? 16 MR. SETLIFF: When you say motion, you 17 mean from one side of the rail to the other? 18 MR. COOPER: Yes. 19 MR. SETLIFF: Okay. 20 A And slack measured -- 21 Q In feet, inches, or whatever you want. 22 MR. SETLIFF: From where to where? 23 A The hose is looped behind me, and I want 24 enough slack in the hose to allow me to freely move 25 the hammer over the top of the rail. You could CRANE-SNEAD & ASSOCIATES, INC. 6 6 Robert Forsyth - Direct 1 start, I guess, the operation with the hose feeding 2 directly out of the hammer, back to the truck, and 3 then generate the slack as you move towards the truck 4 with the hammer. And that would still work. 5 Q So you could have either no slack at all, 6 or enough slack to loop it around behind you? 7 A You could. 8 Q Either way? 9 A And still, you know, successfully drive 10 the spikes. 11 Q Isn't it fair to say that if Curtis had 12 had the reel on the date in question, that he could 13 have been operating more easily with far less slack 14 than he actually had out there? 15 MR. SETLIFF: Objection. It's 16 speculative, it's vague, and it's not limited 17 in time or space to the particulars that you 18 have explained to him what he was doing. 19 (To the witness) So go ahead and answer 20 as best you can. 21 A Restate it again, please. 22 Q Do you know what Curtis was doing when he 23 got hurt? 24 A Yes. 25 Q Tell me what your understanding is? CRANE-SNEAD & ASSOCIATES, INC. 6 7 Robert Forsyth - Direct 1 A Curtis was operating the pneumatic -- or 2 hydraulic spiking hammer. 3 Q And do you understand what motion he 4 indicates he was doing? 5 A Straddling the rail, inside/outside. 6 Q Moving the hammer from the outside to the 7 inside. 8 A Outside to the inside, and back and forth. 9 Q And that he was not terribly far behind 10 the truck, let's say somewhere between five and ten 11 feet, as an estimate. 12 MR. SETLIFF: That's right out of your 13 head. That's the first time anybody has heard 14 that. 15 Q Do you have any idea how far he was 16 relative to the truck? 17 A My impression has been that he was further 18 behind the truck than five or ten feet. 19 Q What is your understanding of how far he 20 was behind it? 21 A The general arrangement in a situation 22 such as this is, the truck will be further ahead 23 because the other man who is operating the hammer 24 is moving towards the truck. 25 Q Right. CRANE-SNEAD & ASSOCIATES, INC. 6 8 Robert Forsyth - Direct 1 A And my understanding is in this instance 2 Curtis was also spiking towards the truck. 3 Q I'm asking you, do you know how closely 4 he had gotten toward the truck at the time of this 5 accident? 6 A Well, Curtis' statement was that he began 7 to spike four ties. He had spiked three ties and was 8 spiking the fourth. So I would be surprised that it 9 escaped my notice that the foreman would locate the 10 truck so close to the beginning of the work that the 11 truck would have to be moved after the other man 12 operating the spiking hammer had spiked -- if he was 13 beginning his fourth tie, he had five feet to the end 14 of the truck and he's got room to spike two more 15 ties, so the truck was located at the beginning of 16 the job, giving the man operating the spiking hammer 17 only enough room to spike six or seven ties before 18 the truck has to be moved again. 19 Q So normally that would be six or seven 2 0 times? 21 A No, that would surprise me if the truck 22 had been located that way. 23 Q How far would you think would be normal? 24 A If the foreman could maintain -- he had to 25 maintain room for the backhoe. If the foreman could CRANE-SNEAD & ASSOCIATES, INC. 6 9 Robert Forsyth - Direct 1 do so and in a free open site, he would have the 2 truck positioned so that the man operating the 3 spiking hammer could do as much of the job as 4 possible before the truck had to be relocated. 5 Q Well, how far back could the man be 6 operating without a reel, under the old system -- how 7 far back could he be and be spiking? 8 A It's a 50-foot hose. The hose is 50 feet 9 long, one piece. Spiking with the hose in front of 10 him, he could go back as far as 50 feet. In all 11 likelihood, he would be a distance less than that 12 from the truck, with the hose trailing him as he 13 made his way towards the truck. So something under 14 50 feet. 15 MR. SETLIFF: John, let me alert you to 16 something that's going to be a problem. You 17 continue to use "old system" in your questions, 18 and I just want you to understand, I'm going to 19 object to every reference to that and any 20 attempt to read or use that on the basis of 21 relevance. 22 MR. COOPER: That goes to form, Counsel. 23 If you have any problem with my form, you'd 24 better put it on the record each time. 25 MR. SETLIFF: Every time you say -- Okay. CRANE-SNEAD & ASSOCIATES, INC. 7 0 Robert Forsyth - Direct Well, then you do want me to object every time? 2 MR. COOPER: Well, let me be sure that 3 you're clear, Counsel. 4 MR. SETLIFF: Well, I object -- 5 MR. COOPER: I'm saying you have to 6 proceed under the rules adduced in court, which 7 say -- 8 MR. SETLIFF: I understand what the rules 9 say. 10 MR. COOPER: They say that things that 11 could have been corrected at the time of 12 deposition need to be put on the record; other 13 things don't. 14 MR. SETLIFF: Well, I told you that any 15 reference to alternate ways to do the job, 16 alternate set-ups to do the job, and implicitly 17 old system/new system would fall under that. 18 I'm just trying to give you a heads-up here. 19 MR. COOPER: Well, then maybe we don't 20 have any such agreement. I mean, if you have 21 an objection to my form, which I regard as a 22 formal objection, maybe a formal objection, I 23 believe you need to make it now. I understand 24 that you can reserve all questions -- all 25 objections that would be reserved under rules CRANE-SNEAD & ASSOCIATES, INC. 7 1 Robert Forsyth - Direct 1 normally. That's all I'm saying. We're 2 proceeding under the rules. So you're 3 continuing to make your objections, and go 4 ahead and do it. 5 MR. SETLIFF: I'll give you a caveat now. 6 Anytime you say "old system," I'm going to 7 object to that as being form of the question, 8 on relevancy, not calculated -- 9 (To the witness) Answer it the best you 10 can. 11 (To Mr. Cooper) I object to the question. 12 I just wanted to give you a heads-up about 13 that. 14 Q Isn't it true that the reels are the 15 current way of doing it? 16 A Yes. 17 Q And before that, the old system was to not 18 have a reel on the truck, correct? 19 MR. SETLIFF: Same objection. 20 (To the witness) Go ahead and answer it. 21 A Well, the hydraulics on this gang truck 22 includes the 94 -- the truck's identification number 23 stands for the model year. So this gang truck was 24 1994, it was the first gang truck -- 2S Q This is a yes-or-no question, Mr. Forsyth. CRANE-SNEAD & ASSOCIATES, INC. 7 2 Robert Forsyth - Direct 1 With all due respect, you can explain all you want 2 to -- 3 A Please restate it. 4 Q Would you agree that the old system before 5 you put on the reels was not to have a reel on the 6 truck? 7 MR. SETLIFF: Objection to the form of the 8 question. 9 (To the witness) Answer it the best you 10 can. 11 A Old system? 12 Q Excuse me. What I'm saying is -- 13 A Before there was a hose reel, there was a 14 hydraulic hose. This was all relatively new to us. 15 Q Mr. Forsyth, with respect to the ties -- 16 first of all, you were not at the scene, nor even on 17 duty the day this happened, right? 18 A Yes. I was inspecting the railroad 19 between Burkeville and Richmond. 20 Q You didn't go to the site the day that it 21 happened, did you? 22 A No. I got back when I completed my 23 inspection shortly before the gang completed its job 24 for the day, and then the foreman reported to me. I 25 made it back to the office by 3:30. CRANE-SNEAD & ASSOCIATES, INC. 7 3 Robert Forsyth - Direct 1 Q Again, this is really yes or no. You were 2 never at the site -- I'm saying the site where he 3 indicates he got hurt. Were you at that location 4 during that day? 5 A No. 6 Q When did you first go to that location 7 after that day? 8 A The following day? 9 Q Did you go there for the purpose of seeing 10 what happened to Mr. Fowlkes? 11 A To look at the site and look at the job, 12 and then it was also a day -- Wednesdays, I have some 13 control of, electives. I can make elections on 14 looking at those things that are not scheduled for 15 inspection by the Federal Railroad Administration. 16 Q what did you find -- 17 A I have options on Wednesdays. So that 18 would he one of the places that I went that 19 Wednesday. 20 Q What did you find when you got out there? 21 A That the job had been done. There was 22 nothing striking about the scene. 23 Q What job are you talking about? 24 A The gauging and installation of ties. And 25 nothing was striking about the scene. I CRANE-SNEAD & ASSOCIATES, INC. 7 4 Robert Forsyth - Direct 1 Q Did you ever have Mr. Fowlkes point out 2 to you the high spike that he believes the hose got 3 caught on? 4 A No, I did not. 5 Q Did anyone, to your knowledge? 6 A Point out the high spike? 7 Q Yes. 8 A No, and I didn't find the high spike when 9 I went to examine the site. 10 Q Are you saying that you went and looked 11 for a high spike and did not see one? 12 A I didn't actually look for the high spike, 13 not the following day. But then when I went out to 14 look at the site after Mr. Fowlkes' report was made, 15 I didn't find the high spike. 16 Q Let's start with the very next day. You 17 went out to the site, you went out and looked around? 18 A The next day was more to look at the 19 actual job that had been done. 20 Q So you weren't at that time looking -- 21 A No, I was -- 22 Q Let me finish my question. You weren't 23 looking with respect to finding out what happened to 24 Mr. Fowlkes? 25 A No. CRANE-SNEAD & ASSOCIATES, INC. 7 5 Robert Forsyth - Direct 1 Q Was there some later time when you went 2 out to look, to see what happened to Mr. Fowlkes? 3 A I covered that track on a scheduled basis 4 twice every week, every Monday and every Thursday. 5 And on one of those trips, and I can't remember 6 exactly which one it was, so it was within the next 7 week or so, I stopped to look and see what the actual 8 site we were talking about looked like. And I didn't 9 see any high spikes. 10 Q So with respect to the Wednesday you went 11 out there, the day after his injury, I take it you 12 were not looking for high spikes and, therefore, 13 don't know whether there was one or not. 14 A When we went out that Wednesday, we were 15 just looking at the job. 16 Q And you went out to look at it with an eye 17 toward what happened to Mr. Fowlkes. You're not sure 1B if it was Thursday, two days after the accident, 19 Monday, six days after the accident, or the following 20 Thursday? 21 A It probably was the following Monday. 22 Q That was the day you all officially did 23 the reports? 24 A Right. 25 Q Did you go out there with Curtis? CRANE-SNEAD & ASSOCIATES, INC. 7 6 Robert Forsyth - Direct 1 A No, I did not. 2 Q Did you or anyone else ever ask Mr. 3 Fowlkes to point out to you, hey, where's the high 4 spike that you believe you got caught on? 5 A No. 6 Q Who did go out there with you that Monday? 7 A It was just me. 8 Q And what did you see that day? 9 A ostensibly what we saw Friday. There were 10 some changes, but ostensibly the same site that we 11 looked at on Friday. 12 Q When you say you looked at on Friday, 13 you're talking about when you came to do a site 14 inspection? 15 A That's correct. 16 Q Do you know if anyone had come through and 17 done any work there between the date of Mr. Fowlke's 18 accident and when you came through to look at it? 19 A We had had thermite welders recently, in 20 the last several weeks, welding out rail joints. 21 Q I'm talking about back then. I'm talking 22 about May of 1996. You say a couple of weeks. I 23 wasn't sure you were talking about a couple of weeks 24 from today or -- 25 A A couple of weeks ago, yes, just recently. CRANE-SNEAD & ASSOCIATES, INC. 7 7 Robert Forsyth - Direct 1 Q What I'm talking about right now -- 2 A Has anybody gone out there to do more 3 work? No. 4 Q Let's be fair, because we're on different 5 pages. Let me start again. I'm talking about when 6 you went out there on the Monday, June 3, 1996, after 7 he filed the reports with you, the same day that the 8 reports were filled out, and you went out to look at 9 the scene, do you know if anybody had come through 10 and done any work in that area -- 11 A No. 12 Q -- after this injury, before you came and 13 looked at it? 14 A No. My recollection is that they had 15 completed that job that day. 16 Q But do you know -- I'm asking you, do you 17 know whether for sure that no one had done any work? 18 A For sure? No, there was no work done in 19 that location after the accident. My recollection is 20 that the job was completed. I looked at it Monday 21 and the job was done to my satisfaction. 22 Q When you went out there, how did you know 23 where to look? 24 A They were to be gauging curves between the 25 milepost 141.2, which is underneath the pipeline -- I CRANE-SNEAD & ASSOCIATES, INC. 7 8 Robert Forsyth - Direct 1 don't know if you saw that part of it, but it's a 2 little bit south of your site inspection the other 3 day -- and through the curve where this took place. 4 The site inspection did take place. I walked that 5 stretch of track. 6 Q Do you remember what part of it you 7 walked? Did you walk on both sides of the rail? 8 A Down the center of the rail, yes, with a 9 measuring gauge. 10 Q So you walked -- when you say down the 11 center of the rail, you're talking about between the 12 two rails? 13 A (The witness nods affirmatively.) 14 Q Did you ever walk on the outside of both 15 sides of the rail? 16 A Not to my recollection, no. 17 Q Did you see any high spikes? 18 A That really wasn't the purpose of that. 19 Q When we're talking about high spike, Mr. 20 Forsyth, how would you define a high spike? 21 A A high spike is a spike that has worked 22 back up out of the tie with the movement of the rail. 23 As the train goes over it, the rail will move up and 24 down. And as you know, as it puts pressure on that 25 spike, it will pull it back out of the tie, CRANE-SNEAD & ASSOCIATES, INC. 7 9 Robert Forsyth - Direct 1 especially a weak tie. 2 Q And the average spike is what, about six 3 inches long? 4 A About six inches long. 5 Q And so when it's fully hammered down, 6 almost all six inches is in either the wood of the 7 tie or whatever, or in the ground? 8 A Yeah, the wood or in then the tie plate. 9 Q And when you're looking at a spike that 10 had come up just from the normal use of the rail 11 lines, how high does it have to be for it to be 12 something that you think needs to be hammered back 13 down? 14 A It wouldn't be the single spike getting to 15 a certain point coming up out of the tie that would 16 indicate to me that something had to be done; it 17 would be a number of spikes in a location that had 18 been pulled up from the ties that would indicate that 19 this may be, you know, a problem that needs to be 20 addressed or it may be an indication of weak wood, 21 the crossties, or maybe the rail is moving 22 excessivley, it had been canted by the rails, or by 23 the trains that roll over it, or that it's rising up 24 and down and vertically. So one spike coming out of 25 there -- there is no signal for a spike. It's just CRANE-SNEAD & ASSOCIATES, INC. 8 0 Robert Forsyth - Direct 1 now four inches out of the tie, that means we have to 2 go in and drive that spike back down. That kind of 3 work would be, or that would be indication as a 4 number of spikes I've seen in that condition, and we 5 would be looking for an explanation for why. it 6 could be an indication of another problem. 7 Q And I take it that it would be impractical 8 for the Railroad to make sure that every single tie 9 on every single plate -- 10 A Every spike. 11 Q -- every single spike, in fact, had not 12 even one inch of clearance. You couldn't -- there's 13 not enough men to do that, right? 14 A No, you couldn't maintain your railroad by 15 personally -- there's no need to. 16 Q I take it there are no rules, either 17 federal rules or company rules, that tell you that 18 a spike can't be more than one inch or some other 19 number which is out of place. 20 A A single spike? 21 Q Yes. 22 A No. 23 Q Would you expect a man who came across a 24 single spike while he was doing something else to 25 believe it was his duty to redrive that spike? CRANE-SNEAD & ASSOCIATES, INC. Robert Forsyth - Direct MR. SETLIFF: Objection. It's vague to 2 the extent that -- what is something else? 3 A I've done it. And I don't expect every 4 man working on the railroad to feel an urgent need to 5 drive that spike back in. 6 Q And in terms of when Board went out 7 there -- I assume that Board is the one that day 8 who would have marked which ties had to come out. 9 A Yes. Well, let me clarify something about 10 the job. 11 Q Please. 12 A The curve had just been surfaced and new 13 ties had been added as part of a larger operation. 14 And we were going to gauge it ahead of that 15 operation, but were overtaken. So several new ties 16 were added, so that we would be spiking fresh wood to 17 hold this gauge, and stretch out our maintenance 18 cycle. So, yes, Mike would have been through to mark 19 the old ties that would come out and then install new 20 ties in the curve. 21 Q So the main purpose of putting in the new 22 ties was to have some fresh wood to make sure the 23 gauge was right? 24 A Even though a number of the ties in the 25 curve were brand new, a good number of them because CRANE-SNEAD & ASSOCIATES, INC. 8 2 Robert Forsyth - Direct 1 of this timbering and surfacing that had just taken 2 place, and we want the gauge that we set in that 3 curve to last so that we don't have to go back and do 4 it again soon. So I asked them to install new ties 5 so that it would be fresh wood, brand new wood, 6 without any spike holes in there, so we can hold 7 gauge in that curve for as long as possible before 8 we have to return to do the job again. 9 Q So I take it the T&S crew that had come 10 through before had already replaced some of the ties, 11 but not all of them. 12 A Not all of them. 13 Q So Mr. Board was going to come and replace 14 those that had not already been replaced by the T&S? 15 A Replace a number of them, yes. 16 Q When I say all of the ones that were -- 17 A No. no. 18 Q Some of them. 19 A The railroad manifest was spotty and 20 several ties needed to be replaced. There were ten 21 to fifteen ties. 22 Q Over what area? 23 A Through the curve. I guess we're talking 24 about 35 yards, 40 yards. 25 Q What is the distance between ties? CRANE-SNEAD & ASSOCIATES, INC. 8 3 Robert Forsyth - Direct 1 A Eighteen inches roughly. It varies, but 2 18 inches is the general tie space. 3 Q When you're spotting, as he was doing that 4 day, approximately what interval of ties would he be 5 doing? Would he be doing every third tie? Every 6 fourth tie? 7 A It would vary on that day based upon the 8 location of the new ties that had just been installed 9 by the timbering and surfacing gang. So he would be 10 looking through that to find where there might be an 11 opporunity to get in a new tie, or this would be the 12 first spike driven into that tie. 13 Q And obviously you don't know, sitting here 14 today, exactly the interval. is A Not the interval between ties that had 16 been installed. 17 Q And would there be any documentation that 18 exists to show exactly which ones Mike marked that 19 day? 20 A No, he would just make a mark on the rail. 21 They would carry about 10 ties or so to do this. He 22 would make a mark on the rail with a color crayon. 23 And that, of course, is long since gone. 24 Q Do you know if the backhoe operator who 2S gets it out of there puts in a new tie and then Mr. I CRANE-SNEAD & ASSOCIATES, INC. 8 4 Robert Forsyth - Direct 1 Hughes and Mr. Fowlkes were to come in and spike them 2 down? 3 A Yes. 4 Q on average, when he would be spotting, 5 would it been every third or fourth tie? Every 6 second? Every tenth? Do you have any rough rule of 7 thumb you can give me, any range of what it would 8 normally be? 9 A No. It depends on the condition of the 10 track. 11 Q So would it be fair to say that also that 12 date, at that location, it wasn't going to be every 13 tie; there was going to be one, and then you have 14 several ties that you wouldn't bother with, and then 15 another one? 16 A Right, on the high side. On every other 17 part of this operation was gauging the track back in. 18 So the inside rail, every spike would be pulled, and 19 so every spike would be hammered down. Every tie 20 needed to be spiked down. 21 Q I kind of lost you there. When you say 22 the high side/the low side, are you talking about 23 east and west? 24 A Yes. 25 Q Assume that this is the yard office CRANE-SNEAD & ASSOCIATES, INC. 8 5 Robert Forsyth - Direct 1 direction south and this is north -- (Drawing on 2 sheet of legal-size paper) 3 A On that particular curve, the inside rail 4 would be the east rail. 5 Q Okay. That's the inside? 6 A Uh-huh -- yes. By inside, we have a curve 7 and -- the inside or the curve is what we're talking 8 about when you say inside? 9 Q Uh-huh. (Indicating affirmatively) 10 A All right. The outside of the curve would 11 be the outside of the rail. (Drawing on diagram) 12 Q When you say every spike has to be done, 13 if we're talking about a particular tie here, I'm 14 not sure if you mean the inside of this particular 15 tie or -- 16 A I would say that in this little piece of 17 the section of the curve, that we replaced three 18 ties. Now, on the outside rail, each of these ties 19 has to be spiked three times. But we're gauging the 20 inside rail to get it to within about 56-1/2 inches 21 of the outside rail, every spike, meaning the ties 22 that we did not just install and pull, so that the 23 rail can be moved in. And then all these ties have 24 to be respiked, which is the reason why we wanted to 25 put in the new ties, because if this curve that the CRANE-SNEAD & ASSOCIATES, INC. 8 6 Robert Forsyth - Direct 1 gauge was sitting at 57-1/2 inches, and we were going 2 to gauge it into 56-1/2 inches, that means we were 3 just, moving this rail in one inch. So right behind 4 the hole that we have just created with the spike, 5 there's an empty hole where the spike used to be. 6 So that's weakened wood. So we wanted to have new 7 ties in there because we had just timbered this 8 curve, we have reinforced the gauge that we had 9 established in this operation so that we wouldn't 10 have to return to the scene. 11 Q Now, are you saying that when Mr. Fowlkes 12 and Mr. Hughes are coming through here, they not only 13 should have been spiking the new wood -- 14 A They're spiking every tie. is Q -- they're spiking every single tie? 16 A Every single tie. 17 Q And now, do you know whether they did that 18 or not? 19 A Yeah. Yeah, that was the end result. 20 MR. SETLIFF: Just for my purposes, is 21 this a curve appended to this track or -- 22 (Denoting hand-drawn diagram) 23 MR. COOPER: Generally through this one 24 straight line here. 25 MR. SETLIFF: I'm assuming this is not CRANE-SNEAD & ASSOCIATES, INC. 8 7 Robert Forsyth - Direct 1 connected to this (Denoting diagram), or is it. 2 maybe it is. I don't know. I'm just trying to 3 understand the diagram we've got now. 4 MR. COOPER: (To the witness) Let me -- 5 Let's move away from the diagram for a second. 6 I want to talk to you about some photographs 7 and some other things. 8 MR. SETLIFF: I don't care, but if you all 9 are going to mark that, I want to clear it up. 10 If you all are not going to mark it, I don't 11 care. 12 MR. COOPER: You can do what you've got 13 to do when you're going to ask your questions 14 you're going to ask. I don't know what I'm 15 going to do. Give me a minute. 16 MR. SETLIFF: That's fine. 17 MR. COOPER: You do what you've got to do. 18 Q If Mr. Fowlkes has advised me that he was 19 only doing the spikes in the new wood, is there any 20 way that that makes any sense? 21 MR. SETLIFF: On the east side. 22 A He couldn't gauge the curve in if you 23 haven't pulled the spikes on the other ties as well. 24 And once those spikes are pulled, then the other ties 25 have to be spiked again. The reason we were over CRANE-SNEAD & ASSOCIATES, INC. 8 8 Robert Forsyth - Direct 1 there is that the gauge was open before this 2 timbering and surfacing gang arrived. The gang over- 3 took us. We had been gauging curves all the way from 4 Midlothian into Richmond. They overtook us just 5 before you got to that curve, so we were not able to 6 gauge this curve ahead of the timbering and surfacing 7 gang. So we returned to that curve after the T&S 8 gang, or timbering and surfacing gang, had finished, 9 to now gauge again. We didn't want to leave 57-1/2 10 inches of gauge in a freshly-timbered curve. So as 11 part of this process of gauging, I asked them to 12 install new ties so we would have fresh wood to hold 13 the gauge that was set in this curve. Part of the 14 process of gauging means pulling every spike from is every tie that holds the plate in place on the inside 16 rail of that curve so that that rail can be moved in 17 56-1/2 inches. And then all of those plates, all of 18 the ties have to be respiked. 19 Q When you say all of them, you're not 20 talking about a piece of old wood or old tie -- 21 A It really doesn't matter. 22 Q Let me finish my question. 23 A Okay. 24 Q When you're talking about an old tie in 25 the same section, are you saying both as to the CRANE-SNEAD & ASSOCIATES, INC. 8 9 Robert Forsyth - Direct 1 inside rail -- both on the outside of the inside rail 2 and the inside of the inside rail, one on each side 3 of that plate? 4 A one on each side, yes. 5 Q Would the normal operation be to spike 6 down the new wood first -- 7 A No. 8 Q -- and then to come back through and do 9 it? 10 A No. What you would do, you would probably 11 -- you would have the foreman and somebody else if 12 they were doing a spiking hammer, a hand-held spiking 13 hammer, moving ahead with the backhoe. As the 14 backhoe moved this rail up against the gauge, which is establishes the 56-1/2 interval between the rails, 16 that tie, every fourth, fifth, or sixth tie will be 17 spiked to hold that interval the 56-1/2 inches. The 18 foreman will move ahead and set the gauge again for 19 another five or six ties ahead, and do that until 20 he's been through the entire section that's to be 21 gauged. Following that, spikes will be set by hand, 22 with a hand hammer, in each one of these ties -- in 23 each one of these ties. And then that will be 24 followed by the man with the hydraulic spiking 25 hammer, driving down all of the ties, all of the CRANE-SNEAD & ASSOCIATES, INC. 9 0 Robert Forsyth - Direct 1 spikes in each of the ties. So the gauge will be set 2 first -- for every fifth tie or so, the gauge will be 3 set, and that will move ahead through the curve. And 4 following that, spikes will be set in each tie with a 5 hand-held hammer, and then following the setting of 6 those spikes, those spikes will be driven down with a 7 hydraulic hammer. 8 Q So then you're saying that as far as you 9 would instruct the job to be done, they should be 10 spiking both the old wood and the new wood 11 simultaneously? 12 A As he moves through them, yes. If you're 13 starting here, yes, we're spiking everything as we 14 come to it. 15 Q Would it be equally good railroading 16 practice to spike the old wood -- I'm sorry, the new 17 ties first and then come back and spike? 18 A It's not necessary. You're just setting 19 the gauge. The rail isn't under any special stress, 20 you're just setting the gauge. So what the foreman 21 is looking at more is just the interval between ties. 22 We'll start with, you know, five ties into the 23 section he's gauging, and set the gauge at 56-1/2 24 inches, then move on to five more ties. It doesn't 25 matter what condition exactly that tie is in. I CRANE-SNEAD & ASSOCIATES, INC. 9 1 Robert Forsyth - Direct 1 Q Somehow I've gotten confused, and I'm not 2 sure where it happened. 3 A All right. 4 Q Let me tell you what I understand to have 5 occurred, and you tell me if this is different from 6 your understanding of what occurred, and then we'll 7 talk about what should have been done, or whether it 8 was done properly. What I understand to have 9 occurred is that the backhoe operator knocked out 10 some old ties as marked by Mr. Board. 11 A Roard. 12 Q Then placed new wood in those spots. And 13 then the backhoe moved on away from where we're 14 talking about. Then after that, Mr. Hughes and Mr. 15 Fowlkes came through and placed plates on the new 16 wood only. 17 A Yes. 18 Q And then they worked on the -- 19 MR. SETLIFF: West. 20 Q -- west side first, with Mr. Hughes 21 setting the spikes and Mr. Fowlkes driving the spikes 22 with a hydraulic hammer, only working on these new 23 ties that had just been put in, and then came around 24 to the east side and worked their way back to the 25 truck again, doing the same thing with Hughes setting CRANE-SNEAD & ASSOCIATES, INC. 9 2 Robert Forsyth - Direct 1 spikes only in the new ties and Fowlkes driving them. 2 First of all, is that your understanding of what they 3 were doing, or is your understanding they were doing 4 something differently? 5 A The operation on the west rail sounds 6 correct, the outside rail of the curve. The old ties 7 were removed, the plates were removed from those ties 8 and then the plates had to be reinstalled on the new 9 ties after they were inserted into the rail. So on 10 the outside rail, they did spike each one of these 11 new ties, having placed a new tie plate between the 12 rail and the tie. on the inside rail, after the 13 gauge has been set, which is the operation we were 14 talking about, you start here and move ahead five 15 ties or so, set the gauge 56-1/2 inches, move ahead, 16 set the gauge at 56-1/2, then -- 17 Q Let me interrupt you a minute, just so I 18 understand what you're saying. That operation of 19 setting the gauge would be done by Mr. Board? 20 A By Mr. Board. 21 Q With the backhoe guy still there? 22 A Yes, yes. They're using the backhoe 23 method to push the rail into position where it's 24 56-1/2 inches away from the outside rail. And then 25 he would set that, go set the spikes in that tie so CRANE-SNEAD & ASSOCIATES, INC. 9 3 Robert Forsyth - Direct 1 that he holds that 56-1/2 inches, and then move ahead 2 about five or six ties, and do it again. 3 Q I've got you. 4 A All right. Then the gauge is set. He 5 comes back and sets spikes in every tie -- every tie. 6 And those are driven by the hydraulic spiking hammer. 7 Q Let me interrupt there: How do you get a 8 tie out? When you're talking about driving every 9 single tie on the inside of the curve, do you just 10 take the spikes that are already there and simply 11 drive them down, or are you actually replacing them 12 with new spikes? 13 A You can do it either way. It depends on 14 the condition of the spikes. I believe they were 15 using new spikes because they had been left over from 16 the gang that had just been through. But you could 17 use either, as long as you've got a thick spike, it 18 doesn't matter if it's been in the tie, and drive it 19 back up again. 20 Q Now, we've talked about what should have 21 been done; now let's talk about what was actually 22 done. Do you know whether it was done as you just 23 described or it was done as I described, which was to 24 only drive spikes on the new wood? 25 A And then leave it? CRANE-SNEAD & ASSOCIATES, INC. 9 4 Robert Forsyth - Direct 1 Q At least to do that, go through that way? 2 A I can go upon my inspection. These spikes 3 were all driven into all of the ties. 4 Q When you came back through, whenever that 5 was, either Wednesday or -- 6 A Which would make sense. That would be the 7 way it would be done most, you know, efficiently. 8 That would be the way you would do it to accomplish 9 the job that you were doing. You wouldn't want to 10 jump ahead and then jump back, and then jump ahead. 11 You want to -- and you don't bring the hydraulic 12 spiking hammer up to set the spikes or to drive the 13 spikes in the ties that you're using to gauge the 14 rail. You'll do that with a hand-held spiking mall, 15 a hammer. 16 Q To set them? 17 A To set them, or to drive them into the 18 side of each tie while you're setting the gauge. 19 Then you don't even drive those all the way in in 20 every instance -- you don't bring the hydraulic 21 spiking hammer in to drive those spikes. 22 Q You're saying -- let me make sure I follow 23 you -- on the new wood, you shouldn't even be using 24 the hydraulic hammer? 25 A No, you're not following me at all. CRANE-SNEAD & ASSOCIATES, INC. 9 5 Robert Forsyth - Direct 1 Q Thank you. 2 A All right. We're starting back with the 3 gauging now, all of the spikes pulled. There are no 4 spikes in this inside rail. All right. 5 Q Let me stop you there. The backhoe has 6 taken out all of those spikes? 7 A No, no, I said the gang had taken out all 8 of those spikes, either with the hydraulic 9 spike-puller, or if the spike is just less than ten 10 inches, they'll use an old claw bar, a metal bar 11 that's used to pull spikes out of ties. So all of 12 the ties, the spikes have been pulled from the inside 13 rail to the amount of the top footage that's to be 14 gauged. And now, these are the new ties. They would is spike the outside of the new spikes, the new ties 16 that they couldn't spike already. Now, we're moving 17 to the inside rail. The spikes were all pulled 18 before we start setting the gauge. He places his 19 gauge down, or he could use a tape if he needed to. 20 But he places his gauge down, which is a tool that we 21 use. It has proven to be set at 56-1/2 inches, so 22 that the rail can be moved up against those areas and 23 the rails are now 56-1/2 inches apart. He sets his 24 gauge here, drives spikes in this tie, or as the 25 backhoe moves this rail with his bucket until either CRANE-SNEAD & ASSOCIATES, INC. 9 6 Robert Forsyth - Direct 1 surface on his gauge touches the rail, which means 2 it's 56-1/2 inches, and then drives spikes into 3 either side of that plate on that tie, wherever he 4 knows he has 56-1/2 inches of gauge. Then he moves 5 ahead about five or six times, then sets gauge again, 6 then has the backhoe push the rail in -- actually 7 both surfaces on this gauge is at 56-1/2 inches -- he 8 drives the spike. 9 Q But one spike? 10 A Both sides, inside and backside. 11 Q Okay. 12 A To hold that gauge. 13 Q All right. And he does that throughout 14 the area he's gauging, to the track that he's 15 gauging. Then behind him, you can have -- he could 16 have arranged it so that Bubba is setting spikes 17 ahead of Curtis -- setting spikes in every plate that 18 doesn't have spiking, in other words, everything that 19 he didn't spike because he was setting the gauge. So 20 if he was going every fifth tie, the remaining four 21 ties, Bubba was setting spikes in those. And then 22 whoever was running the spiking hammer, the hydraulic 23 spiking hammer, was following behind, driving each of 24 those in that Bubba had just set. 25 Q And that was not the way it was done here, CRANE-SNEAD & ASSOCIATES, INC. 9 7 Robert Forsyth - Direct 1 meaning that, first of all, Mr. Board did not have a 2 crew come through and take out all of the spikes that 3 could be taken out? 4 A The crew was just in. That is no separate 5 crew. 6 Q So assuming that they did not do that, did 7 Mr. Board do it wrong? Did Mr. Board set up the 8 project wrong? 9 A The spikes are still in these ties on the 10 inside rail. You can't push it into gauge. May I 11 address -- I need to go back and review some things 12 about the job. 13 Q Let me show you some photographs that have 14 been provided by defense counsel. First of all, does is this appear to be -- 16 A That's the area. 17 Q -- the section of track that we're talking 18 about? 19 A Yes. Not exactly where you've got that. 20 Q This is probably easier to tell, because 21 it's got the box in it. (Showing another photograph 22 to the witness) Now, looking at that, in this 23 photograph, I take it the box is on the east side, 24 correct? 25 A That's correct. CRANE-SNEAD & ASSOCIATES, INC. 9 9 Robert Forsyth - Direct 1 gauged -- 2 A Then he didn't gauge. 3 Q -- would that have been acceptable? 4 MR. SETLIFF: Object to the form of the 5 question. 6 (To the witness) Answer it. 7 A If Board had just been spiking the new 8 crossties, did not pull spikes in the others, then he 9 did not gauge. 10 Q So would'he be planning to come back and 11 gauge later? 12 A No. No, he would have gauged it at the 13 site. Now, he may have -- and I had instructed him 14 to go through the curve, starting back around the 15 Main Street Bridge, to go through those curves 16 through Williamsburg Road, and then back to where we 17 are at the site, this curve here, check the open 18 gauge, install new crossties, open gauge, and gauge 19 the rail into 56-1/2 inches. Now, checking it back 20 here behind Williamsburg Road that I knew I had a 21 place where the road was 57-1/2, I found that to be 22 right. I put a tape down on this, and I found this 23 to be close, as well. If he did just install the new 24 crossties and did not pull all of these spikes on the 25 inside, then he did not gauge it. CRANE-SNEAD & ASSOCIATES, INC. 1 0 0 Robert Forsyth - Direct 1 Q And is there some rational reason why he 2 didn't gauge? For instance, could he have checked it 3 and found that the gauge -- 4 A He could have checked it and found that 5 the gauge was not that far out. 6 Q You don't know whether that was the case? 7 A No. My impression had been, and Mr. Board 8 said -- my impression had been that he had gauged 9 where they installed ties. without the gauging, 10 there is no point in installing the ties. The ties 11 had been installed so that we could gauge and have 12 fresh wood to hold that gauge. So if we were not 13 gauging, there was no real point in installing the 14 new ties. 15 MR. COOPER: Let's go off the record for a 16 second. 17 18 NOTE: After an off-record discussion, 19 recess is had from 10:52 A.M. until 11:00 A.M., 20 after which the deposition is resumed. During 21 the recess, exhibits are marked by the court 22 reporter, as follows: 2 3 24 NOTE: Composite of two photographs of the 25 accident scene is marked as Forsyth Deposition CRANE-SNEAD & ASSOCIATES, INC. 1 0 1 Robert Forsyth - Direct 1 Exhibit Number 1. 2 Composite of two photographs of the 3 accident scene is marked as Forsyth Der)osition 4 Exhibit Number 2. 5 6 Q I've had the Court Reporter mark as 7 Forsyth Number 1 a composite of two photographs. 8 We'll refer to them as the upper and the lower. Can 9 you show me on Forsyth Number 1, where is the place 10 that you understand Curtis Fowlkes to have been hurt? 11 A Between the road crossing that's just out 12 of the photograph. 13 Q Let me also show you, Mr. Forsyth -- 14 MR. SETLIFF: Let the record reflect that 15 he didn't get a chance to finish his answer. 16 MR. COOPER: That's fine. The record will 17 reflect whatever it says. 18 Q Exhibit Number 2, Mr. Forsyth -- 19 MR. SETLIFF: Are you going to let him 20 answer? 21 MR. COOPER: No, I'm trying to move it 22 along, Mr. Setliff. 23 Q Forsyth Number 2 is also a composite of 24 two photographs, upper and lower. Can you show me on 25 either of these four where you think Curtis Fowlkes CRANE-SNEAD & ASSOCIATES, INC. 1 0 2 Robert Forsyth - Direct 1 to have fallen and been hurt? 2 A In the curve where we have the road 3 crossing and where you have the position -- or the 4 people positioned, something similar. That's s somewhere near the high-side rail. This is the curve 6 that was being gauged right here. And I believe 7 Curtis was -- my understanding is Curtis was closer 8 to the road crossing than the people in the 9 photograph. 10 Q And the photograph you're referring to 11 there is an upper on Forsyth Number 2? 12 A Yes. 13 Q And in the photograph, the top part is the 14 direction south and the bottom part is the direction 15 north? 16 A Yes. 17 Q And you're saying that it would have been 18 slightly further south, higher in the photograph, 19 beyond where the people are shown standing near the 20 rail in the photograph? 21 A That's my understanding. 22 Q Now, looking at Forsyth Number 1, you see 23 the box. What do you call this box? 24 A That's a signal box. That controls the 25 apparatus that activates the signal for the road I CRANE-SNEAD & ASSOCIATES, INC. 1 0 3 Robert Forsyth - Direct 1 crossing. 2 Q Now, the signal box was there on the date 3 of the accident, right? 4 A Yes. 5 Q And the track right in front of the signal 6 box as shown in Forsyth Number 1, both upper and 7 lower, that area is not a curve area such as you 8 were describing to me before, is it? 9 A You understand the area where I'm holding 10 the pencil? 11 Q Yes, sir. 12 A Yes, sir, that is the curve. 13 Q Do ycu believe the area that you were just 14 holding the pencil was the curve? 15 A Yes. 16 Q Do you believe that where you were just 17 holding the pencil there would be an area that would 18 require the sort of procedure that you described 19 before? 20 A That was what I had asked the other 21 foreman to do, to look through the curves, and 22 driving around the Main Street Bridge. 23 Q Would you draw an X there on Forsyth 24 Number 1, the lower frame, where you just had the 25 pencil, please? CRANE-SNEAD & ASSOCIATES, INC. 1 0 4 Robert Forsyth - Direct 1 A (The witness places and X on the 2 photograph.) 3 Q Actually, why don't you do it in blue pen, 4 please? 5 A This is going to depict the curve? 6 Q Indicate the place that you were showing 7 me before. If that were the place approximately 8 where Mr. Fowlkes was hurt -- 9 A No, that's not what you asked me. You 10 asked me if that's where I had my pencil. I held my 11 pencil and said, yes, this is a curve. 12 Q Listen to my question. 13 A Yes, sir. 14 Q Let me ask my question, Mr. Forsyth, and is then you can answer it. Assume for me that that is 16 the place approximately where Mr. Fowlkes fell, would 17 you say that at that place, the procedures that you 18 were describing to me of having to replace every rail 19 on the inside of the rail would apply? would it 20 apply at that place? 21 MR. SETLIFF: I object to the form of the 22 question. It mischaracterizes his testimony. 23 (To the witness) Answer it, Bob. 24 A My understanding is it's not that Mr. 25 Fowlkes fell, but that -- CRANE-SNEAD & ASSOCIATES, INC. 1 0 5 Robert Forsyth - Direct 1 Q I'm sorry. You're right. If I said fell, 2 let me rephrase the question. Let me -- 3 A And the Railroad nomenclature -- 4 Q Let me rephrase it. It's got to be 5 question and answer. It's very hard on everybody. 6 I'm not trying to be rude to you at all; I'm trying 7 to make it easier. 8 At this place where we've marked with blue 9 pen the X, would that still be part of a curve that 10 would have required the procedure that you were 11 describing before, which involves doing something on 12 every tie on the inside of the curve? 13 A I can't be certain that the location of 14 the X on the photograph is exactly where the open 15 gauge existed, but the open gauge that would have 16 been addressed if Mr. Board found it there would have 17 been within the curve. You do get open gauge on 18 tangent tracks, straight tracks. Curve is most 19 frequently found in curve mean gauge is more 20 frequently found in curve. 21 Q By open gauge, you simply mean that the 22 gauge is wider than it should be? 23 A Correct. 24 Q And wherever you went to look to check 25 where this open gauge was after they had done the CRANE-SNEAD & ASSOCIATES, INC. 1 0 6 Robert Forsyth - Direct 1 work, are you sayirig that every spike on the inside 2 rail of the curve had been driven down? 3 A That's my recollection. 4 Q Were they new spikes? Did they have to 5 actually replace the spikes, or did they just drive 6 down the old ones? 7 A My recollection is that we had new spikes 8 because we had just finished with the T&S process, 9 and that we would have been using new spikes. They 10 could have used old spikes, whereas if the spikes 11 that come out of the ties were in good shape, they 12 could use them again. 13 Q What I'm asking you is your specific 14 recollection, if you have one. You don't remember is back then -- 16 A I don't have that specific recollection of 17 every spike that was used back in the ties that was 18 new. 19 Q You don't know whether they were new or 20 simply old ones driven down? Sitting here today, you 21 don't recall? 22 A I can't give you a specific answer. I'm 23 not competent to answer that. If you pull out a 24 spike and it's in good shape, you can drive it right 25 back into the next tie or into the same tie. It's CRANE-SNEAD & ASSOCIATES, INC. 1 0 7 Robert Forsyth - Direct 1 just common practice. You don-t always have new 2 spikes. 3 Q Now, with respect to driving a spike on a 4 new tie, do I understand you to say before that you 5 can only do that with a manual hammer and cannot use 6 the hydraulic hammer for that? 7 A No, no, setting the gauge, as a foreman 8 moves through an area that's being gauged, setting 9 the gauge, he's, in all likelihood -- it's going to 10 be a whole lot easier -- going to use the spiking 11 mall instead of trying to position the hydraulic 12 hammer next to the backhoe. 13 Q Now, Mr. Board, in your assessment, should 14 have checked the gauge before he had these men 15 setting and driving spikes on the new wood, right? 16 A The reason for putting the new crossties 17 in was to reenforce the gauge that was being set. it 18 was part of the operation. It was gauging and 19 spotting several new ties in to hold the gauge that 20 he set. 21 Q And if, as I think we clarified before, 22 Mr. Board found that the gauge was fine -- 23 A Then he shouldn't have been installing the 24 new ties. 25 Q So your feeling is if he had this backhoe CRANE-SNEAD & ASSOCIATES, INC. 1 0 8 Robert Forsyth - Direct 1 installing ties and these men driving down, then, by 2 definition, there had to have been a problem with the 3 gauge? 4 A No. Implicitly the reason for putting in 5 the new ties was to come up with an end result that 6 allowed us to hold the gauge in that curve without 7 having to return to it, or stretch out the amount of 8 time between the activities of gauging the curve. 9 Q Did you explain that to Mr. Board? 10 A my assumption would be that he understood 11 my intention, yes. That was explained to Mr. Board. 12 Q Now, that's not what you're saying. Do 13 you recall telling Mr. Board that that's why you were 14 going to put in new ties in there, or did you just is tell him, put in some new ties in there, spot it? 16 Q No. It's to go through the curve, find 17 the open gauge and -- 18 Q No, that's not my question. Let me ask 19 you -- listen to the question. My question is, do 20 you remember -- sitting here today, do you remember 21 telling Board that, or do you not know whether or not 22 you expressly told him? 23 A No, I told him to go through, find where 24 we had open gauge, put in new ties because I don't 25 want to gauge again on ties and put in again. I want CRANE-SNEAD & ASSOCIATES, INC. 1 0 9 Robert Forsyth - Direct 1 to have new wood under the spots where we were 2 gauging and gauge those spots in with several new 3 ties underneath this location -- the idea, again, 4 being that we put in fresh wood. 5 Q And assuming that the project stretched 6 up to this place on Forsyth Number 1 where the blue 7 x is -- 8 A The X is only where I was holding the pen 9 when you asked me to say whether or not this is a 10 curve. 11 Q I haven't even asked my question yet. I 12 paused, and you started filling the gap. Let me 13 finish my question. Assuming that the project went 14 that far, looking at this picture, Forsyth 1, the 15 bottom frame, where the X is, do you believe that is 16 a curve that should have required spiking every one 17 of the inside rail spikes? 18 A You cannot gauge a rail in if there are 19 spikes still in the plates. The rail won't move. 20 That's why we spike it in the first place, since the 21 rails don't move underneath the train. 22 Q If Mr. Board had simply told this crew to 23 come through and spike up the new wood and then check 24 the gauge, at that point, would he have been 25 following your instructions? CRANE-SNEAD & ASSOCIATES, INC. 1 1 0 Robert Forsyth - Direct 1 A Installing the ties, spike them all up, 2 and then check the gauge afterwards? 3 Q Yes. 4 MR. SETLIFF: (To the witness) Would he 5 have been following your directions? 6 A Not exactly. But he also would have been 7 creating extra work for himself, because if he did 8 spike those ties up and then checked the gauge and 9 found it to be open, then he would have had to pull 10 the spikes out of the new ties so he could set the 11 rail -- and held pull through his gauge, just get 12 them out of the rail. Then, too, he wouldn't have 13 the new wood that was the reason for pulling the ties 14 anyway, to hold the gauge he was setting. 15 Q If you're backing a truck up here in the 16 area that we're seeing in Forsyth Number 1, the truck 17 is going to be fairly close to the rail in order to 18 be able to, for instance, fit inside of the box, 19 correct? 20 A Yes. 21 MR. SETLIFF: Object to the form of the 22 question. 23 Q Approximately how far would it end up 24 being if you expect them to pull it out to do this 25 job, to do hydraulic hammering? CRANE-SNEAD & ASSOCIATES, INC. Robert Forsyth - Direct 1 A I'm sorry? 2 Q How far away would the truck be from the 3 rail in order to do the job they were doing? 4 A Just going on my recolleciton of the site 5 inspection last Friday -- 6 Q Yes, sir. 7 A -- about five or six feet either side of 8 the track, if that much. 9 Q If Mr. Fowlkes was standing not far from 10 the truck, and you can assume ten feet as an estimate 11 of what not far means, and he were doing the 12 hammering on the inside rail with a reel, would most 13 of the hose be on the ground or would it be in the 14 air? 15 MR. SETLIFF: It's vague. It's 16 speculative. The form of the question is 17 improper. Facts not in evidence. 18 (To the witness) Answer it the best you 19 can, if you can, Mr. Forsyth. 20 A Are we talking about the truck positioned 21 the type it is in here, Mr. Fowlkes' position was 22 about here, the hose played out of the reel over to 23 Mr. Fowlke's position here? 24 Q Yes, sir, exactly. 25 A It depends on how much hose they had CRANE-SNEAD & ASSOCIATES, INC. 1 1 2 Robert Forsyth - Direct 1 pulled out in the first place. Mr. Fowlkes is now 2 on the opposite side of the truck from the reel, so 3 I would imagine they would pull out a good deal of 4 the hose to start, give him room to get to the 5 rail -- to give him the end of the hose to get to 6 the rail. It's a difficult question to answer. 7 Q okay. Let's assume that he is spiking 8 some number, let's say four ties somewhere between 9 the Williamsburg Road and the box, at some interval. 10 After he moves from one tie to the next tie to spike 11 the inside rail, if he had had a reel, wouldn't you 12 expect him to pull it and take up the extra slack as 13 he moved forward at each stop? 14 MR. SETLIFF: Objection to the form of the 15 question. It's also speculative. 16 (To the witness) Answer it the best you 17 can. 18 A Mr. Fowlkes would have to put the hammer 19 down and walk around to the reel -- 20 Q maybe you misunderstood my question. 21 A -- or he would, you know -- 22 Q Let me ask you a different question. Have 23 you ever used this truck with the reel to put a spike 2 4 in? 25 A Yes. Rarely. CRANE-SNEAD & ASSOCIATES, INC. 1 1 3 Robert Forsyth - Direct 1 Q How many times? 2 A Well, it's only been several times. I'm 3 not sure of how many. 4 Q When were those times? 5 A I don't have a good enough memory to give 6 you those dates, the actual dates? 7 Q Why were you doing it as opposed to a 8 laborer? 9 A Just joining in with the other work. 10 Q Have you ever done it for the express 11 purpose of trying to figure out how it worked? 12 A No. I played with it a bit to see how it 13 worked, but no, not the actual getting out there and 14 driving a few spikes with the hammer to see how the 15 reel works. 16 Q And on those couple of occasions when you 17 have used it, isn't it fair to say that you could 18 have your left hand holding the hammer up, with it 19 resting on the ground, and use your right hand to 20 give a gentle tug on the hose and have it retract and 21 take up slack? 22 MR. SETLIFF: Objection to the form of the 23 question. 24 (To the witness) Answer it the best you 2 5 can. CRANE-SNEAD & ASSOCIATES, INC. 1 1 4 Robert Forsyth - Direct 1 A I thirik -- I don't know exactly what you 2 mean by gentle tug. 3 Q Well, let's just say a tug then. 4 A And the hose feeding from the opposite s side of the truck into the reel, I don't know how 6 effectively the reel will retract the hose at an 7 angle. And if I hadn't put the hammer down, if I am 8 just holding to a 50-inch pound (sic) hammer, let's 9 say that whatever force it takes, and I'm trying to 10 guide it back, that would be where my concentration 11 is now, trying to get the hose to go back that way 12 towards the truck, I'm taking a real chance that I'm 13 going to drop that hammer. So I don't think that 14 doing it that way would be a safe way to pursue these 15 types of procedures. I think you need to set the 16 hammer down and then move into an appropriate 17 position to retract. 18 Q Let's talk about the position of the 19 truck. Once you've got the reel on there, if you're 20 going to work on an inside rail, such as that which 21 we see in Forsyth Number 1, how would you have the 22 truck positioned? 23 A And you're asking me depending on Mike's 24 positioning, or Mr. Board's positioning of the truck? 2 5 Q Yes. CRANE-SNEAD & ASSOCIATES, INC. I 1 5 Robert Forsyth - Direct 1 A If I'm gauging here -- 2 Q You gauging there where that X is? 3 A Where the X is. 4 Q No, not gauging. If you're driving -- 5 A And they're spiking? 6 Q I'm trying to explain. At that point, how 7 would you have the truck positioned? Would you have 8 the reel side facing the rail? 9 A No, the reel side would be away from the 10 rail. 11 Q Couldn't you turn the truck around and 12 have it facing the rail? 13 A You could, but then you would be backing 14 the truck away from the work, as well as adding the 15 length of the truck between the reel, which is the 16 source of the hose, and the work, which diminishes 17 the working length of the reel, of the hose on the 18 reel, by whatever the length of the truck is. If you 19 have the truck facing you, the reel is mounted on the 20 rear of the truck, then you have to subtract the 21 length of the truck from the working length of the 22 hose on the reel, if you are working towards the 23 direction of the truck, if you're working north if 24 the truck is facing you. So you usually will work 25 off the rear of the truck. CRANE-SNEAD & ASSOCIATES, INC. 1 1 6 Robert Forsyth - Direct 1 Q Okay. You would have it facing the way, 2 for instance, we had it facing when we had the site 3 inspection? 4 A Yes. I think that's an automatic 5 positioning by Mr. Board. 6 Q And if it were so positioned and the truck 7 was sitting essentially where this box is in Forsyth 8 Number 1, lower photograph, and you were spiking the 9 rail where the X is, how much of the hose would be in 10 the air versus on the ground? 11 A If I was operating the hammer? 12 Q Yes, sir. 13 A I would pull out enough hose so that all 14 of the hose -- the hose is on the ground almost from 15 the wheel of the truck back to the hammer. 16 Q Why would you put all the hose on the 17 ground? is A So that I knew that I had enough to work 19 with; I wasn't going to try to walk away with the 20 hammer attached. Are we attaching the hammer by the 21 side of the truck, below the reel? 22 Q I understand what you're saying. 23 A What I'm saying, is the hammer over by the 24 rail where we would be using it? 25 Q Assume it's over by the rail you're about CRANE-SNEAD & ASSOCIATES, INC. 1 1 7 Robert Forsyth - Direct 1 to put a spike -- 2 A I'm going to grab the hose and start 3 walking with it to hook up the hose to the hammer. 4 I'm going to pull out enough hose so that I have 5 plenty of slack so I don't have to wrestle with hose 6 in the air as I try to connect the fittings to the 7 handle -- and that's what you do sometimes. A little 8 bit longer it takes -- oh, we've pulled out enough. 9 So that probably most of the hose is going to be 10 lying on the ground. Personally -- personally that's 11 the way I would do it. 12 Q Having the hose on the ground poses some 13 risk that it will get caught up on something, right? 14 MR. SETLIFF: Objection, form of the 15 question. 16 (To the witness) Answer it as best you 17 can. 18 A Some risk? 19 Q Yes. 20 A I suppose so, yes. 21 Q Have you ever had a hose get caught up on 22 something when you were using the hydraulic system? 23 A Dragging the hose behind me, it's a 24 possibility, nothing that stands out in my memory. 25 You know, keeping the hose uplifted is something that CRANE-SNEAD & ASSOCIATES, INC. 1 1 8 Robert Forsyth - Direct 1 you're mindful of as you operate the hammer. It's 2 all a part of the hammer itself, is keeping up with 3 the hose. 4 Q What I'm asking you is, has it ever 5 happened to you that your hose has gotten caught on 6 something? 7 A I don't have a specific recollection of 8 that. Again, working as an assistant track 9 supervisor, using the hydraulics of the truck is not 10 something that I do every day. But no, I don't have 11 a specific recollection of the hose catching while 12 I've been using the hammer. 13 Q Would you agree that that's a known risk 14 of using a hydraulic hose? is MR. SETLIFF: objection to the form of the 16 question. It's inappropriate legal standard. 17 (To the witness) Answer it the best you 18 can. 19 A I would agree that that's something that 20 you have to consider with a hose like that. 21 Q So in that sense, it's a known risk, 22 something that you're aware of that you have to look 23 out for? 24 MR. SETLIFF: Objection to the form of the 25 question. CRANE-SNEAD & ASSOCIATES, INC. 1 1 9 Robert Forsyth - Direct 1 A That-s something that I would consider 2 when I'm dragging the garden hose around the corner 3 of my house, as well. 4 Q And if you were doing what Curtis Fowlkes 5 was doing, which was to spike up just the new wood 6 spikes as set by Mr. Hughes from south to north, 7 headed towards this truck, as you moved from one tie 8 to the next tie, what would you do -- what do you 9 think you should do? 10 A What is the interval between the new ties 11 that are being installed there, because my impression 12 was that Mr. Board was gauging this curve. 13 Q Assume that that's not the case. And this 14 is my function -- 15 A Then what is the interval between the 16 ties? 17 Q I don't know. But assume there's been 18 four ties at some intervals between the road and the 19 truck. 20 A And it's me? 21 Q Yep. How do you do it? 22 A It's me? 23 Q And assume you've got no reel. 2 4 A It's me? 25 Q Yes. You've got no reel and got no -- CRANE-SNEAD & ASSOCIATES, INC. 1 2 0 Robert Forsyth - Direct 1 A I've got out the spiking mall and I'm 2 driving them by hand. 3 Q You wouldn't bother with the hydraulic 4 system? 5 A And we're talking about how many ties 6 here? 7 Q Four. 8 A I'm driving them by hand. 9 Q Why? 10 A You asked if it was me. That's why I'm 11 doing it. 12 Q Why? 13 A Because that would be easier for me. And 14 that's me. I like the hammer. 15 Q Let's assume that you were asked to do it 16 with the hydraulic hammer, how would you do it? 17 A I would drive one, get the hammer, make 18 sure my hose is clear, move to the next tie, drive 19 it, pick up the hammer, set it down at the edge of 20 the tie, make sure my hose is clear, and move to the 21 next tie. But if it's me, and it's really me, and I 22 haven't been instructed to do it with the hydraulic 23 spiking hammer, if I've just got four crossties, I'm 24 driving them with the spiking mall. 25 Q All right. And I take it you're somewhat CRANE-SNEAD & ASSOCIATES, INC. 1 2 1 Robert Forsyth - Direct I unusual in that regard. 2 A No, I don't think so. I may be unusual 3 inasmuch as I like the hammer, but there have been a 4 number of other folks out here who like the hammer, 5 too. 6 Q When you say check to make sure your hose 7 is clear, you made a gesture with your right hand, 8 which was essentially to tug on it, is that correct? 9 A Yes. Yes, I lift it to my right side and 10 heft it to my left. I'm left-handed. 11 Q And I'm assuming that we're talking about 12 working an inside rail, such as what we see here. 13 A I don't think that anything is very -- of 14 any significance as indicated by my doing this with 15 my right hand (Making motion with right hand), other 16 than I'm left-handed. 17 Q Well, I'm asking how you check. The words 18 you used were, I would check to see -- 19 A See that it was clear and move it ahead 20 with me. 21 Q How do you check it? That's what I'm 22 asking you. Do you give a tug on it to see if it 23 feels like it's caught up? 24 A It depends on how it's played out. I 25 should have some awareness of where the hose is CRANE-SNEAD & ASSOCIATES, INC. 1 2 2 Robert Forsyth - Direct 1 lying. 2 Q Okay. Let's assume -- again, I'm just 3 trying to get you to put yourself in Mr. Fowlkes' 4 shoes and you tell me whether he did it right, or how 5 you would do it. Again, he's got his truck somewhere 6 positioned like you see in Forsyth 2. He's back a 7 ways. He's going to spike up four, he's coming back. 8 Would you have taken the hose each time and set it 9 back up on the truck between times? 10 A No, no. My feeling is -- 11 Q You would drag it behind you, correct? 12 A Not necessarily in this case. 13 Q You would drag it behind you, correct? 14 A Or have taken it and moved it ahead so is that I'm not dragging the entire hose behind me. 16 What you can do is use your free hand while balancing 17 or stabilizing the hammer with the other hand and 18 move the hose ahead. 19 Q Simply by a flick of the arm? 20 A Flicking it forward, or by setting the 21 hammer down, and if you've got enough distance that 22 you're going to have to move to the next tie, moving 23 the hose yourself. And if you ended up in moving it, 24 you then move the hammer up. 25 Q I take it there's no rules that pertain to CRANE-SNEAD & ASSOCIATES, INC. 1 2 3 Robert Forsyth - Direct 1 that, to tell you exactly how to do that, is there? 2 A Now, I can't quote the exact rules, but 3 there are considerations in the rule book about 4 being, you know, mindful of the circumstances that 5 you take part in creating at the work site. But no, 6 I don't know of any rule that verbatim says that, 7 this is exactly the way the hose is supposed to be 8 handled. It should be maintained free of other 9 things. 10 Q Wasn't it customary on this crew that 11 there was a person to hold the hose when you're using 12 the spiking hammer? 13 A People have been used to hold the hose. 14 The guy that is using pneumatic spiking hammers, 15 those hoses are longer generally. If you have 16 someone taking your hose, then they benefit and allow 17 you to perform your operation more quickly. If not, 18 then the hose becomes part of your responsibility. 19 Q You said because it's easier to have it 20 done that way, it was customary to have someone hold 21 the hose for the guy using the spiking hammer? 22 MR. SETLIFF: He didn't say that. 23 MR. COOPER: I'm asking him. It's a 24 question. 25 MR. SETLIFF: Okay. Well, I object to the CRANE-SNEAD & ASSOCIATES, INC. 1 2 4 Robert Forsyth - Direct 1 form of the question. It mischaracterizes his 2 testimony. It's inappropriate, and leading 3 this witness. 4 (To the witness) But answer it the best 5 you can. 6 A Yeah, it's customary -- I don't know sure 7 exactly, I've never used the term. But yeah, we do 8 use people to keep up with the hoses. That speeds up 9 the process of spiking the ties. 10 Q Do you remember participating in the 11 investigation of Mr. Fowlkes after this incident? 12 A Yes. 13 Q And do you remember Mr. Cox, who was 14 representing Mr. Fowlkes that day, asking you the 15 following question -- I'll show it to you and 16 counsel. Do you remember him asking you, "Has it 17 ever been customarily done to have someone to help 18 with the hose, pull it, drag it"? 19 A Customarily, I don't have -- a custom is 20 21 Q Let me finish my question, sir. 22 A All right. 23 Q Do you remember Mr. Cox asking you the 24 following question and your giving the following 25 answer: "Has it ever been customarily done to have CRANE-SNEAD & ASSOCIATES, INC. 1 2 5 Robert Forsyth - Direct 1 someone to help with the hose, pull it, guide it"? 2 And your answer, "Yes." Do you remember being asked 3 that question and giving that answer? 4 A Yes. 5 Q And is there anything different today that 6 would cause you to disagree with that statement? 7 A No. 8 Q Would you agree that most of the time when 9 Mr. Fowlkes used the spiking hammer, he was given an 10 assistant to hold the hose? 11 A Well, Mr. Fowlkes isn't the only one on 12 the gang who operated the spiking hammer. 13 Q That's not my question, sir. Listen to my 14 question. I expect you to answer my question. 15 You've got to listen to my question. You're going 16 beyond it, and it's going a lot longer today than it 17 would have been if you'd just answer questions. My 18 question again is, do you agree that Mr. Fowlkes -- I 19 don't care about anybody else; I'm just talking about 20 Mr. Fowlkes -- most of the time when he used that 21 spiking hammer, that he had an assistant holding the 22 hose for him? 23 MR. SETLIFF: I don't mind you asking him 24 questions, but I'm not going to suffer you 25 being rude to him. CRANE-SNEAD & ASSOCIATES, INC. 1 2 6 Robert Forsyth - Direct 1 (To the witness) And you answer the 2 questions the way you want to answer, Mr. 3 Forsyth, and if he doesn't like the answer, 4 that's life. 5 MR. COOPER: I'm entitled to get an answer 6 to my question though. 7 MR. SETLIFF: Well, he's going to answer 8 them the way he wants to answer them. 9 MR. COOPER: (To the witness) Go ahead. 10 A I don't have any way of giving you a 11 percentage of the time, in answer to your question. 12 Q So you don't know? 13 A I'd say a good deal of the time when Mr. 14 Fowlkes was operating the spiking hammer, that he 15 would have somebody -- not an assistant, but somebody 16 working with him to help him with the hose, probably 17 somebody who would also be taking the hammer after a 18 while, depending on the length of the job, to give 19 somebody some relief from using it. Lacking that, 20 then we have a different situation and it becomes Mr. 21 Fowlkes' responsibility to maintain that hose. 22 Q I take it though, sitting here today, you 23 have no idea how often he had ever been required to 24 do that -- 25 A No, I can't -- CRANE-SNEAD & ASSOCIATES, INC. 1 2 7 Robert Forsyth - Direct 1 Q Let me finish my question, sir. I'm 2 really not trying to be rude to you, Mr. Forsyth. 3 A You sounded like you finished your 4 question. How often -- go ahead. 5 Q Let's all take some deep breaths and give 6 me a pause after I ask the question. I take it that 7 sitting here today you do not know how many times 8 Curtis had been required to do the job of using the 9 spiking hammer without someone helping him hold the 10 hose. 11 A No, I couldn't give you a number of times 12 that that had been the situation. 13 Q Before there was a reel, approximately how 14 many times do you believe you used a spiking hammer 15 with a hydraulic system attached? I believe you said 16 a number, but you weren't sure. 17 A Yeah. It would be, I believe, in the 18 dozen range. 19 Q During those approximately dozen 20 occasions, did you normally have someone helping you 21 by holding the hose? 22 A I can remember both having someone helping 23 me with the hoses and handling the hoses myself. 24 Q And as far as telling me whether most of 25 the time you had the helper holding the hose or not, CRANE-SNEAD & ASSOCIATES, INC. 1 2 8 Robert Forsyth - Direct 1 do you know? 2 A You mean what percentage of the times when 3 I've handled -- 4 Q Not exact percentage. I'm just asking 5 you, was it more than half? 6 A My experience is that it was about 7 fifty-fifty when I had somebody carrying the hoses on 8 with me, and then when I was maintaining the hoses 9 myself. Now, again, you were talking about an 10 assistant track supervisor. But that's what I 11 recall. In other words, it's not an everyday part 12 of my job. My recollection is, it's about half and 13 half. 14 Q Would you have expected Mr. Board to have 15 offered to help Curtis by offering to hold the hose 16 for him? 17 A Now, you'll have to talk to Mike about 18 exactly what he was engaged in doing, how he was 19 handling his manpower, you know, how he was handling 20 his people, what they were assigned to do. In a 21 short -- and that is a short curve and a short 22 gauging job, so it wouldn't be unreasonable to have 23 Curtis by himself. If it had been a much longer job, 24 then it would have to be approached differently. But 25 this is not a long job, a big job. CRANE-SNEAD & ASSOCIATES, INC. 1 2 9 Robert Forsyth - Direct 1 Q Was the crew size relatively small, a 2 historical small size as of May of 1996? 3 A No. 4 Q Just having two men and a foreman wasn't a 5 lot smaller than it was in the past? 6 A That's within the normal -- or within the 7 norm for crew sizes. I mean, I think we stated 8 earlier between two and five. I have worked down 9 here just briefly when it was just a foreman and two 10 men. I was one of the men. So I'd say it's within 11 the norm. 12 Q Has anyone ever complained that the crew's 13 size was too small and they needed extra manpower? 14 A You want more people. You always want 15 more people. 16 Q What I'm asking though, specifically did 17 anyone complain -- 18 A Too small to do the jobs? 19 Q Listen to my question. Did anyone ever 20 complain and say, we need more men out here on this 21 crew; our crew is getting too small? 22 A No, I can't imagine that concern being 23 voiced that way. 24 Q Was it voiced in any other way? Were 25 there any complaints about crew size? CRANE-SNEAD & ASSOCIATES, INC. 1 3 0 Robert Forsyth - Direct 1 A You can-t just go out and grab somebody. 2 So, you know, we need more people. We would always 3 like to have as many people as we can. 4 Q With all due respect, you still haven't 5 answered my question. Here's my question: Did 6 anyone on that crew ever say to you in any words, in 7 any form -- objections, concerns, complaints about 8 the size of their crew being inadequate? 9 MR. SETLIFF: I object to the form of the 10 question. 11 (To the witness) But answer it. 12 A Not inadequate. 13 Q Or similar words? 14 A Not similar to inadequate. You would just is like more people. 16 Q So did anyone particularly say that they 17 would like more people? 18 A We were just coming out of the T&S project 19 where we had been very busy, and things had quieted 20 down quite a bit. We were able to design our 21 workload, our workdays, greater control internally. 22 Q You still haven't answered my question. 23 A It was not the time to -- 24 Q It's either a yes or no. It's a very 25 simple question, Mr. Forsyth. I'm just asking you, CRANE-SNEAD & ASSOCIATES, INC. 1 3 1 Robert Forsyth - Direct 1 and you've already explained it. Yes or no is what 2 I'm looking for initially. Did anyone, prior to May 3 28, 1996, ever say that they would like more people 4 on the crew? 5 A Yes. We've already agreed to that. No 6 one ever told me that we were of inadequate, you 7 know, size to do the work we were doing. 8 Q Who said that they wanted to have more 9 people? 10 A I don't recall anybody saying, the exact 11 person, that we need more people. But you would like 12 to have as many people as you can. 13 Q When, prior to May 28, 1996, did someone 14 on that crew say to you they would like to have more is people? 16 A I can't recall a specific date, John. 17 Q Give me your best estimate. Are we 18 talking about days before, months before, or years 19 before? 20 A We had jobs up for bid. Later we wound 21 up, we actually went into the hiring process. I 22 attended -- 23 Q Mr. Forsyth, really, and again, I don't 24 want to be rude, because I would be happy to talk to 25 you about this all day, but I can't. I need to ask CRANE-SNEAD & ASSOCIATES, INC. 1 3 2 Robert Forsyth - Direct 1 you to please try to focus on my question. My 2 question at this point is just a matter of time. 3 When approximately -- if you can't give me a 4 pinpointed date, when approximately was it that 5 someone had last made a complaint? 6 A I don't recall complaints about the 7 adequacy. We would like to have had more people. 8 Q When prior to the accident was the last 9 discussion about the crew saying they would like to 10 have more people? 11 A There was no discussion, per se, that we 12 need to have more people, that I recall. 13 Q I thought you just told me that there was, 14 in fact, such discussion; you just couldn't remember 15 who the person was. 16 A By discussion, we gather together now and 17 we are going to find the ways between us all to -- 18 Q Conversation, discussions -- this is not 19 -- you know I feel like you're playing Bill Clinton 20 with me here, splitting words. My words are not -- 21 I don't mean them to be in any -- discussion doesn't 22 have any specific meaning to me. I'm saying, when 23 was the last time it was made known to you, prior to 24 the accident, that anyone had any concern about the 25 size of the crew and that they would like more CRANE-SNEAD & ASSOCIATES, INC. 1 3 3 Robert Forsyth - Direct 1 people, approximately? I realize you can't give me 2 a pinpointed answer. 3 A It was not a question of us being too few, 4 that we get ourselves a few more people. 5 Q When was the last time that there was any 6 conversation? 7 A Before May the 28th, and I cannot give you 8 an exact date on when we talked about, you know, 9 trying to get jobs filled by bid, whether or not we 10 would go out and hire people. That really -- the 11 gang really wasn't, you know, really talking actively 12 about hiring. If we could get someone to bid into 13 the job, if there were openings that someone would 14 come down to Richmond, to work in Richmond, filling is a bid. 16 And then, we're not talking about a long 17 period of time when the gang was at that strength. 18 We had just lost a guy who had been riding with me, 19 so I had taken Linwood Ferabee to ride with me on the 20 motor car. 21 Q When did you take Mr. Ferabee to ride on 22 the motor car? 23 A Oh, I'd have to go back and check records 24 on that. 25 Q Approximately. CRANE-SNEAD & ASSOCIATES, INC. 1 3 4 Robert Forsyth - Direct 1 A It had not been long before that, I mean. 2 Q Was it in 1996? 3 A Yes, i,m thinking 1996, probably in 196, 4 maybe in February. I'm sorry I can't be -- you know, 5 I would have to go back and look at diaries or 6 something. 7 Q I take it your best recollection is it 8 would have been the beginning of 1996. 9 A My best recollection, it was in that 10 general area, that I recall. I'll tell you who was 11 helping me. It was Linwood who was helping me with 12 streamlining curves. I had the T&S, and that started 13 in March -- it was prior to March in 1996. 14 Q And prior to March, 1996, Ferabee would 15 have been working with -- 16 A With the gang. 17 Q -- with these other guys? 18 A Right. 19 Q So they would have had one more man? 20 A Right. 21 Q Going back in time before March, 1996, 22 when was the last time they had lost a person on the 23 crew, that was not replaced? 24 A It is not a question of not replacing 25 them. The jobs are made available. CRANE-SNEAD & ASSOCIATES, INC. 1 3 5 Robert Forsyth - Direct 1 Q When was the last time somebody had left 2 the crew? 3 A Let's see. Before Linwood, it was Joe 4 Wynn. 5 Q When did he leave? 6 A Well, Linwood actually didn't -- Joe Wynn 7 left and Linwood moved in with me after Joe left. 8 Joe had been riding with me. Wynn was actually on 9 number 21. 10 Q Prior to that. 11 A Clinton Trimiew left, and then Joe was 12 riding with me after Clinton. And I don't think 13 anyone -- Joe came over to ride with me off of TM-21. 14 Q When did Trimiew leave the crew and start 15 to ride with you? 16 A Clinton left in 1993 -- 1994. 17 Q Did anyone join TM-21 when Trimiew left? 18 A Joe Wynn. Joe came to TM-21, then he 19 opted to ride with me, then Linwood Ferabee. And we 20 had Clay McGinley, as well, with TM-21, and then Clay 21 McGinley moved over to do the flagging job for this 22 CSO project we talked about. 23 Q That was a permanent assignment for him? 24 Well, he never came back to the crew? 25 A He made himself available to us. But on CRANE-SNEAD & ASSOCIATES, INC. 1 3 6 Robert Forsyth - Direct 1 days when he had to be flagging, he was missing. 2 Q When did Clay make that move? 3 A He went to the flagging job in 1995, I 4 think when we had to (inaudible) In 199S, the job 5 kicked off in early September of 195, September of 6 October of 1995, is when that job kicked off. Clay 7 did that and then just as he was out of the gang, and 8 then bid it. And then he would have left in early 9 1 9 9 6 . 10 Q That was Clay who left in 1996? 11 A Yes. 12 Q when did Trimiew leave the crew? 13 A He left after falling when stepping from 14 the truck, and he left in 1994 -- I think it was is 1 9 9 4 . 16 Q Sometime before 1995? 17 A Yes. 18 Q okay. And when did Joe Wynn -- 19 A Joe retired. He was found to have colon 20 cancer, as well as problems breathing. and Joe left 21 in early 196, I believe. 22 Q So those four guys: Clay, Trimiew -- 23 A No, Clay was still on the gang when he 24 started flagging. He wasn't awarded the first bid on 25 that job until later. CRANE-SNEAD & ASSOCIATES, INC. 1 3 7 Robert Forsyth - Direct 1 Q Listen to my question. Clay, Trimiew, Joe 2 Wynn, and Ferabee were all guys who were no longer 3 actively working with TM-21 as of the day of this 4 accident? 5 A Well, all of those people could not have 6 been working on TM-21 at the time. The maximum man 7 count at that time, I think, was a foreman and four. 8 Q okay. 9 A And then -- so, like I say, we're talking 10 about normal is between -- I've seen as low as two, 11 and five. Normal -- we're not outside of the normal 12 limits. 13 Q I take it that there were some 14 conversations, discussions, whatever you want to 15 say -- there was some talk about taking on another 16 man between March of 1996, when you took Ferabee to 17 ride with you and when this accident occurred. 18 A No, I don't think we had a conversation. 19 We had help of the T&S gang. we had the gauging to 20 do, a lot of gauging to do, and we had help for that. 21 As far as, you know, conversations about, you know, 22 finding people to bid in on jobs in Richmond and 23 sending out bids -- 24 Q So there were conversations about it 25 during that time period? CRANE-SNEAD & ASSOCIATES, INC. 1 3 8 Robert Forsyth - Direct 1 A Rids were becoming more difficult because 2 we had lost (inaudible). We had to find people who 3 were local who would bid these job. 4 Q That's because they were no longer 5 offering housing, is that what you're saying? 6 A In other words, what they've done now is 7 -- well, they offered trailers. In some cases they B do. And most of these gangs now are local gangs 9 that's been headquartered. So yeah, they no longer 10 offer trailers. 11 Q On the date that Mr. Fowlkes was hurt, he 12 told his foreman that he had hurt his knee, correct? 13 A Mike reported to me that Curtis had -- 14 that the spiking mall had glanced Curtis, knee. That 15 he didn't know if he was really hurt. That he had 16 complained a bit about the pain. Mike didn't really 17 have a clear idea of what had taken place with 18 Curtis' knee. 19 Q And did you talk to Curtis the following 20 day? Is that correct? 21 A Well, we tried to speak to Curtis that 22 evening. When Mike told me something had taken place 23 over there, we would need to find Curtis. And as we 24 walked out the door, Curtis was heading down 6th 25 Street, away from the office. So we talked to him CRANE-SNEAD & ASSOCIATES, INC. 1 3 9 Robert Forsyth - Direct about it the next morning. 2 Q And at that time, he told you that the 3 hydraulic hammer had hit his knee, correct? 4 A And he said it had slipped out of his 5 hand. His gloves were wet and it slipped out of his 6 hand and struck his knee. 7 Q Didn't Mr. Fowlkes also tell you that the 8 hose had been caught on a high spike? 9 A He told me that later. What he told me 10 initially was that his gloves had been wet and that 11 the hammer slipped out of his hand and struck his 12 knee. 13 Q So you're saying that -- well, he 14 certainly told you that when you did your official is reports on June 3, didn't he? 16 A Well, even when we filed an accident 17 report, a Form 22, I think it is -- it's actually his 18 report -- before that, he hadn't told me that it had 19 caught on a high spike. 20 Q And you're saying that was some new 21 information that you didn't have before that? 22 A His original report was that it had 23 slipped out of his hand -- the original report to me 24 was that it had slipped out of his hand. 25 Q You're saying oral report, not written? CRANE-SNEAD & ASSOCIATES, INC. 1 4 0 Robert Forsyth - Direct 1 A Oral report. 2 Q Did you believe he was making up the thing 3 with the high spike? 4 A I didn't know; I didn't know. 5 Q Did you suspect that? 6 A I really do not know. Curtis is 7 presenting the report of the incident. I'm not 8 there. I don't know that the spike is a result of, 9 you know, Curtis' retrospection or something he 10 omitted in his original report to me. But what he 11 told me originally was that his gloves had been wet 12 and that, you know, the spiking mall had slipped out 13 of his hands and delivered a glancing blow to his 14 knee. 15 Q How long did you spend talking to Curtis 16 that Wednesday morning? And all I care about is, how 17 long did you spend getting him to describe for you 18 what had happened? 19 A I guess maybe, you know, fifteen or twenty 20 minutes. 21 Q Why didn't you write up a report at that 2 2 time? 23 A I asked Curtis if he was injured, and did 24 we need to -- did he want to till out an injury 25 report for this. CRANE-SNEAD & ASSOCIATES, INC. 1 4 1 Robert Forsyth - Direct 1 Q And he told you he wanted to wait and see 2 how it did? 3 A Well, at that time, I said, Curtis, we 4 need to fill out -- if ycu're injured, we need tc 5 fill out an injury report. If we're not going to 6 fill out an injury report, what you're telling me is 7 that you are not injured; if you are injured, let's 8 fill out an injury report right now. 9 Q And isn't it a fact -- 10 A And he said, no, I think I'm all right; 11 something to the effect that, i think I'm all right. 12 Q He didn't tell you that he thought that he 13 wanted to wait and see how his knee developed and see 14 how he felt? is A No, he said he thought he was all right. 16 I guess maybe that he wanted to wait and see may have 17 been -- 18 MR. SETLIFF: Don't guess anything. 19 A You don't wait and see if you have an 20 injury. If we have an injury, we fill out an injury 21 report. 22 Q So your testimony here is that when you 23 talked to him on Wednesday morning, he said he was 24 fine, he was not in any pain? 25 A No, he said that he did not have an injury CRANE-SNEAD & ASSOCIATES, INC. 1 4 2 Robert Forsyth - Direct 1 that he wanted to report. I asked him specifically, 2 is it an injury, Curtis? Do we have an injury? Do 3 we need to fill out a report? If we have an injury, 4 we have to fill out a report now -- an injury report 5 now. If you do not fill out an injury report, what 6 you're telling me -- and that first report is his to 7 fill out. That's his report. -- what you're telling 8 me is that you do not have an ln]'ury. 9 Q And are there some federal rules about 10 when you have to report injury and when you don't? 11 A There are rules that make an injury FRA 12 reportable. 13 Q What makes it FRA reportable? 14 A when a prescription is written within -- 15 and then say a tetanus shot, when the treating by a 16 physician goes beyond first aid, and when there's 17 lost time, when the employee is put on restricted 18 activity -- these things make an injury FRA 19 reportable. 20 Q And is it fair to say that the Railroad 21 doesn't want there to be injuries if they can help 2 2 i t ? 23 A You mean the Railroad wants to be as safe 24 a place to work as it can be? 2 5 Q Yes. I CRANE-SNEAD & ASSOCIATES, INC. 1 4 3 Robert Forsyth - Direct 1 A It's fair to say that the Railroad is 2 interested in being as safe a place to work as the 3 Railroad can be. 4 Q Do they have some slogan that's along the 5 lines of, even one injury is one injury too many? 6 A No. I think what you're thinking about is 7 zero in].uries, zero incidents. The goal is zero 8 injuries, getting nobody hurt. 9 Q And is it fair to say that workers are not 10 only encouraged to try to be safe, but also 11 discouraged from filing injury reports unnecessarily. 12 MR. SETLIFF: Objection to the form of the 13 question. 14 (To the witness) Answer as best you can, 15 Bob. 16 A Is it fair to say discouraged from filing 17 unnecessary injury reports? 18 Q In other words, if you're not sure if you 19 have to or not, it's better -- that the Railroad 20 would encourage you not to file one? 21 A No. If you're hurt, no, they want us to 22 file a report. If somebody is hurt, the emphasis is 23 upon filing an immediate report, make everything as 24 clear and aboveboard as we can. 25 Q Now, when Curtis talked to you on CRANE-SNEAD & ASSOCIATES, INC. 1 4 4 Robert Forsyth - Direct 1 Wednesday morning, you're not telling me that he 2 said he had no pain, that he was a hundred percent 3 fine; you're just saying he didn't want to fill out a 4 report. Is that what you're saying? 5 A In physical activities, there are always 6 going to be some kind of pain as we get older. 7 Q That's not what I'm asking. 8 A Yes, it is what you're asking me. 9 Q You're answering generally; I'm asking 10 specifically. Specifically, did Mr. Fowlkes tell you 11 he had any pain on Wednesday, or are you telling me 12 that he said -- 13 A No, he did not say, I have pain. He did 14 not tell me he was in pain. 15 Q Did he tell you that he had any physical 16 problem? 17 A He told me that the spiking hammer had hit 18 him, delivered a glancing blow to his knee. 19 Q Did he indicate to you -- 20 A Are you injured Curtis? Do you have an 21 injury? And -- 22 Q Did you make any further inquiries beyond 23 that? 24 A Did I? 2 S Q Yes. CRANE-SNEAD & ASSOCIATES, INC. 1 4 5 Robert Forsyth - Direct 1 A Yes. I continued to find out how Curtis 2 was. 3 Q Did you ever expressly ask him, are you 4 having any current pain or disccmfort? Sitting here 5 today -- did you ever ask him that, do you have any 6 physical problem today? 7 A On subsequent days? 8 Q No, I'm talking about Wednesday. I'm just 9 talking about Wednesday, the day after the accident, 10 did you inquire with him, that he expressly told you 11 whether he did or did not have any physical problem 12 that he associated and attributed to the prior day's 13 accident? 14 A Yes, in the vernacular, I asked him if he 15 was hurt. 16 Q And he said yeah? 17 A He said he had struck his knee with the 18 hammer. I asked him if he was injured. I said, do 19 we need to fill out an injury report? Do you wish to 20 fill out an injury report? 21 Q We've already covered that, and now what 22 I'm asking you is, did he indicate to you that he 23 believed it was still bothering him, his knee? 24 A He said it felt a little bit stiff. 25 Q And as a result of his saying that is why I CRANE-SNEAD & ASSOCIATES, INC. 1 4 6 Robert Forsyth - Direct 1 you allowed him to ride around iri the truck with you 2 as opposed to making him go back out and doing the 3 normal labor duties, right? 4 A That's correct. 5 Q Do you recall whether or not he said 6 anything about any other body parts, for instance his 7 low back? 8 A No, no. 9 Q No you don't remember, or no he didn't say 10 i t ? 11 A No, he did not say anything about his 12 lower back at that point. 13 Q Now, on the following Monday, he told you 14 he did feel that he was injured and needed to fill is out a report, correct? 16 A That's correct. That his knee was 17 bothering him, that it was an experience that he 18 hadn't anticipated. 19 Q He indicated that the knee was continuing 20 to bother him? 21 A Yes. 22 Q Did he indicate at that time, June 3, 23 1996, that any other parts of his body were bothering 2 4 him? 25 A No. CRANE-SNEAD & ASSOCIATES, INC. 1 4 7 Robert Forsyth - Direct 1 Q Just his knee? 2 A That's all I recall, was just his knee. 3 MR. COOPER: Let me ask the court reporter 4 to mark these two dccuments, in no particular 5 order, Forsyth 3 and 4, please. 6 7 NOTE: Accident Report dated June 3, 1996, 8 filled out by Curtis Fowlkes, is marked as 9 Forsyth Deposition Exhibit Number 3. 10 Accident Report dated June 3, 1996, filled 11 out by Robert Forsyth, is marked as Forsyth 12 Deposition Exhibit Number 4.. 13 After an off-record discussion and recess, 14 the deposition resumes as follows: 15 Q Mr. Forsyth, I'm going to ask you to look 16 at Forsyth 3 and 4. Would you agree that those are 17 two different reports you actually filled out with 18 Mr. Fowlkes on June 3, 1996? 19 A Right. The form which is the 22, is all 20 that form that Mr. Fowlkes would be filling out, and 21 this is the other form that I would be filling out. 22 Q The one thing he filled out is Number 3, 23 and the other one that you're saying that you filled 24 out is Number 4? 25 A Right. This is my handwriting. I filled CRANE-SNEAD & ASSOCIATES, INC. 1 4 8 Robert Forsyth - Direct 1 this out for Curtis. 2 Q Did you know that Curtis didn't read and 3 write real well? 4 A Yes. 5 Q Did you know at that time whether he could 6 read at all? 7 A I have helped Curtis with a number of 8 situations where reading was required, yes, at the 9 Railroad. 10 Q And so you knew that he wasn't capable of 11 writing it out in longhand himself? 12 A Right, so I wrote it down for him. 13 Q And he had no way, he couldn't read to 14 really be sure -- 15 A Other than I read it back to him. 16 Q Why is there a difference between the 17 description on the one you filled out and the one 18 that you're saying he was to fill out? 19 MR. SETLIFF: Objection. That's mis- 20 characterization. 21 (To the witness) Answer it the best you 22 can, Mr. Forsyth. 23 A All right. This is Number 3? 24 Q Uh-huh. (Indicating affirmatively) 25 A In the instance of Number 3, I was taking CRANE-SNEAD & ASSOCIATES, INC. 1 4 9 Robert Forsyth - Direct 1 dictation more or less from Curtis and trying to 2 write down, as close to verbatim, Curtis' description 3 of the incident. And Number 4, this is not -- Number 4 4 is not Curtis' report; Number 3 is Curtis' report. 5 So I was trying to ostensibly take dictation. 6 Q On Number 3, all the handwriting on this 7 form is your handwriting, correct? 8 A Yes, that's correct. 9 Q And when it said on here that the weather 10 was cloudy and rainy, do you know firsthand whether 11 it was or wasn't rainy that day? I mean, do you 12 know? 13 A Yes, I do. 14 A So you believe he was correct when he said 15 it was cloudy and rainy on the day of the accident? 16 A Yes. 17 Q Do you know whether it was a lot of rain 18 or a little rain? 19 A It was a light rain. There were a few 20 periods of heavy showers, but it was a light rain. 21 Q And I take it you all just work through 22 the rain, for the the most part, on the railroad? 23 A By and large, unless it's an extreme. A 24 day when it's not a deluge, yes, we will work. 25 Q Now, I take it that you all didn't find CRANE-SNEAD & ASSOCIATES, INC. 1 5 0 Robert Forsyth - Direct 1 him in violation of any company rules as a result of 2 what his conduct was leading up to his injury? 3 A No, we did not find him in violation of 4 rules. 5 Q Not only didn't you find him in violation 6 of rules; there weren't any -- there wasn't even a 7 rules violation charged, was there? 8 A That's correct. You know, that's part and 9 parcel. 10 Q The investigation that occurred had more 11 to do with the fact that he had been in a series of 12 accidents rather than this particular incident and 13 what happened, correct? 14 A Right. 15 Q Were you the charging officer? Were you 16 the person who would draw up the charges against him 17 in an investigation? 18 A I think I was named as such, yes. 19 Q Did you make the determination or did 20 somebody else make the determination that, we're 21 going to charge him with getting hurt a bunch of 2 2 times? 23 A It was made elsewhere. The determination 24 was made by somebody else. 25 Q Who made that determination? I CRANE-SNEAD & ASSOCIATES, INC. 1 5 1 Robert Forsyth - Direct 1 A I couldn't tell you for sure. 2 Q Who gave you your marching orders that you 3 needed to go ahead and do this? 4 A I'm not sure if it was Charles O'Dell in 5 Roanoke who -- 6 Q or somebody else? 7 A Or somebody else. The discussion about 8 that, you know, what we're looking at with the 9 investigation and, you know, then I began to initiate 10 the process of initiating -- of conducting the 11 investigation. 12 Q Was it uncommon to find somebody in 13 violation of being hurt a bunch of times? Have you 14 ever heard of that happening before? 15 A It's examined under the heading of 16 persistent unsafe practices. If somebody has a 17 history of injuries or activities that put other 18 people in peril, this heading is brought to the 19 foreground, and that person's actions are examined 20 under that heading. 21 MR. SETLIFF: John, will you give me a 22 continuing objection? I think all this stuff 23 is precluded by the RLA. 24 MR. COOPER: Steve, I don't think it's 25 relevant or admissible at trial, I'll grant you CRANE-SNEAD & ASSOCIATES, INC. 1 5 2 Robert Forsyth - Direct 1 that. 2 MR. SETLIFF: okay. Well, also, I want 3 to pose an objection to it in that it's an 4 occurrence that is supplanted (phonetical) by 5 the RLA. But go ahead. 6 Q If they hadn't instructed you to bring 7 those charges against him, would you have done it on 8 your own? 9 MR. SETLIFF: Did you give me an objection 10 on that, John? 11 MR. COOPER: Yes, I'm sorry. It's a 12 continuing objection. 13 A On the persistent unsafe practices? 14 Q Yes. 15 A Honestly, I don't know that I would have 16 proceeded myself. I considered it appropriate. 17 Q You would have been entitled to bring it 18 if you had wanted to? 19 A Yes. I considered it appropriate. 20 Q And was Mr. Snow involved in the decision 21 at all? 22 A That's not clear to me. 23 Q I take it that on the report that he gave 24 to you that is shown as Exhibit 3, he expressly 25 mentioned that he believed that the hose was around a CRANE-SNEAD & ASSOCIATES, INC. 1 5 3 Robert Forsyth - Direct 1 spike, correct? He had said that to you? 2 A Yes. Yes. 3 Q And, likewise, in the report that you 4 filled out, which is marked here as Forsyth Exhibit 5 4, again he expressly said that he believed that the 6 hose got caught around a spike? 7 A That's correct. 8 Q Where on Exhibit Number 4 it calls for a 9 description of what body parts were hurt, he 10 indicated both leg and knee, correct? 11 A That's what he was telling me, yes. 12 Q Did you ever inquire what part of his leg 13 beyond his knee he was talking about? 14 A Well, I think what I was thinking is that is his leg and then more specifically knee. No, I did 16 not inquire as to the other part of his leg that 17 might have been affected. My reading on that would 18 have been that he was talking about his leg, 19 specifically his knee. 20 Q And i take it, sitting here today, you're 21 talking about two plus years later, you don't recall 22 exactly what he said about his leg, do you? 23 A No. And I don't recall him saying 24 anything about the leg other than what's there 25 (Denoting exhibits) No, no, I can't recall exactly. CRANE-SNEAD & ASSOCIATES, INC. lS4 Robert Forsyth - Direct 1 Q And you had no complaint with the way that 2 he reported it, meaning the fact that he brought it 3 to his foreman's attention that very day, discussed 4 it with you the follcwing day, and made a report six 5 days later. That was all within normal operating 6 parameters? 7 A I feel like this, that he probably should 8 have filled out these forms -- that Curtis should 9 have filled out these forms the following Wednesday. 10 It's my opinion, the way this is handled, this should 11 have been filled out the very next day. And 12 actually, you know, he should have -- well, he did 13 talk to his foreman that day. I feel like he should 14 have talked to me, as well, on Tuesday evening before 15 leaving work. 16 Q Well, the two of you just missed each 17 other, right? He had already left? 18 A He just got in his truck and drove away 19 from the property. And after Mike had told me -- Mr. 20 Board had told me what had happened, I went out to 21 look for Curtis, and he was driving away. And I felt 22 like Mr. Fowlkes should have spoken to me that 23 evening about this and then, perhaps, these forms 24 should have been filled out as early as Tuesday 25 evening. CRANE-SNEAD & ASSOCIATES, INC. 1 5 5 Robert Forsyth - Direct 1 Q There are certain specific company rules 2 about giving reports that say if you don't do it 3 properly or if you give false information, that that 4 can be a rules violation in its own right, correct? 5 A That's not a rule that we would deal with. 6 You know, that's more up your alley. 7 Q What does Rule m say. 8 A Rule M probably, I would guess, deals with 9 truthful reporting, and how promptly it should be 10 reported to the supervisor, an injury or incident. 11 Q Whatever rules may pertain to the giving 12 of reports, you all did not find him in violation of 13 anything? 14 A No, I did not find him in violation of is anything. No, I just -- personally, I felt like it 16 should have been dealt with more quickly though. 17 Q Was Curtis generally a good worker? 18 A Curtis could be a good worker. A lot of 19 trouble circulated around Curtis and his activities 20 on the gang -- that's my understanding. 21 Q I'm sorry? 22 A That's my understanding. 23 Q So I take it from your answer that you 24 don't think he was -- not as far as how he was, but 25 he should have been. But he was not a good worker? CRANE-SNEAD & ASSOCIATES, INC. 1 5 6 Robert Forsyth - Direct 1 A Curtis was capable. 2 Q I'm asking how he was, not how he could 3 have been. How was he? 4 A Good some days and not so good on others. 5 Q Do you believe he was generally truthful? 6 A No. 7 Q What do you base that upon? 8 A On reports of relatives and incidents -- 9 and it would be hard to check these things out 10 now -- and relatives will reappear, be still living 11 years later. Stories told about other workers that 12 don't stand up under scrutiny. Accounts of things 13 that are supposed to be done, that weren't done. 14 Well, it's difficult for me to he precise. Through 15 the course of things, activities that have been 16 accomplished that in after-light don't reflect 17 exactly the way they've been reported. 18 Q These things about relatives and death, I 19 didn't really understand what you were talking about. 20 A Several aunts of the same name died over 21 the years. They are little things -- you asked me, 22 and I can't really spread this out in extreme detail. 23 You asked me for my impression. 24 Q Yes, sir. And I realize it is difficult 25 to have to say it, especially sitting here in the CRANE-SNEAD & ASSOCIATES, INC. 1 5 7 Robert Forsyth - Direct 1 same room with the man. ]3ut I need to know what your 2 perception is. 3 With respect to the safety meetings, I 4 take it the purpose of the safety meeting was to 5 create a frank exchange between the laborers and the 6 supervisors about -- just in part, the process was to 7 have a frank discussion about what needed to be done 8 and what could be done better. 9 A I think that's an important aspect of the 10 safety meeting, was the dissemination of information. 11 Q And I take it, it was after safety 12 meetings where the crew asked for a reel. 13 A Safety meetings as we spoke of, the 14 assembly for the gang is the same setting day in is and day out. So any conversations pertaining to the 16 acquisition of the reel didn't necessarily occur on a 17 Monday morning, or in the Monday-morning safety 18 meeting. It could have been a conversation on any 19 day of the week. 20 Q Do you know which workers complained about 21 the lack of a reel and were asking to have one? Was 22 Curtis one of them? 23 MR. SETLIFF: I object to the question. 24 It's compound and mischaracterization of 25 testimony. CRANE-SNEAD & ASSOCIATES, INC. 1 5 8 Robert Forsyth - Direct 1 MR. COOPER: (To the witness) Let me 2 rephrase that for you. 3 Q Mr. Fowlkes was one of the people who had 4 asked about getting a reel for the truck? 5 A I remember several people, including 6 Curtis, expressing a desire for a reel. 7 Q Who else? 8 A Now, this is just different voices other 9 than -- 10 Q Was Mr. Hughes one of them? 11 A I'm not sure; I'm not sure. Mike Board 12 might have expressed an interest in a reel. 13 Q Did any of them tell you why they felt 14 they wanted one? 15 A I don't think the arguments were that far 16 advanced. You know, that it would be a useful 17 accessory. I think, again, going back to the 18 question of storing and deploying the hose is a big 19 part of it, because it reduces, you know, the hassle 20 of getting the hose in and out of the boxes. 21 Q Approximately how long have you spent with 22 the lawyers from Mays, Valentine or the claims office 23 of N&L getting ready for today? 24 MR. SETLIFF: (To the witness) Don't 25 answer that. Don't answer that. CRANE-SNEAD & ASSOCIATES, INC. 1 5 9 Robert Forsyth - Direct 1 Q Have you participated in any reenactments 2 of the accident to try to figure out what happened? 3 A No. The closest to a reenactment was the 4 site investigation last Friday. 5 Q And do you know if anyone did any clean-up 6 of the site recently prior to the inspection that we 7 did? 8 A No. Actually we didn't have a chance to. 9 Q Had you intended to? 10 A No, I hadn't. I mean, the last thing I 11 remember though when we looked at it, it was a piece 12 of pulkwood that had fallen off of the train. 13 MR. COOPER: Hold on one second, please. 14 MR. SETLIFF: Okay. is (Off-record) 16 MR. COOPER: I take it, Mr. Setliff, that 17 any questions I ask him about what he did in 18 preparation for today, you will not allow him 19 to answer? 20 MR. SETLIFF: Oh, no, no. I'll go ahead 21 and answer your general question. I don't 22 think you're entitled to know how long he has 23 spent with me or what we talked about. 24 Q How long have you spent preparing for 25 today's deposition, absent the time you and I have CRANE-SNEAD & ASSOCIATES, INC. 1 6 0 Robert Forsyth - Direct 1 spent today? 2 A Basically that site inspection. 3 Q Beyond that? 4 A Not much. It's not something that I would 5 jot down as billable hours. 6 Q This is the kind of answers -- I realize 7 you're anxious to -- 8 A I mean, as I say, I thought about it, but 9 I don't know. 10 Q When did you stop thinking about it, and 11 doing stuff? 12 A Not that long. An hour, hour and a half, 13 you know, looking into, seeing when, you know, we 14 acquired the reel, when the reel was installed, 15 things like that. 16 Q Have you talked to anybody specifically 17 about this, about that subject or any other subject 18 when you were getting ready for today, other than the 19 lawyers and the claims agent? 20 A No, really we haven't. I mean, Mike and I 21 mentioned it in passing, that this was coming up, but 22 we really haven't talked about it. 23 Q Did you talk to Mr. Board about any of the 24 substance that you were going to testify to or he was 25 going to? CRANE-SNEAD & ASSOCIATES, INC. 1 6 1 Robert Forsyth - Direct 1 A No. We had very little in the way of 2 conversation. 3 Q Have you read any documents in preparation 4 for today? 5 A No. 6 MR. COOPER: Give me a moment, please. 7 8 NOTE: Mr. Cooper reviews his notes, 9 after which the deposition resumes as follows: 10 11 Q Are there any other statements, other than 12 the two I showed you as Forsyth 3 and 4, that were 13 taken? 14 A With Mr. Fowlkes? 15 Q Yes. 16 A No, not that I know of. There may be 17 medical records and different stuff. That's outside 18 of my control. 19 Q Did you go with him to Dr. Godsey's 20 office? 21 A Yes. 22 Q Were you present for the whole time he was 23 with the doctor? 24 A Not the entire time, no. He went in to 25 have blood drawn from his knee, and for an x-ray. CRANE-SNEAD & ASSOCIATES, INC. 1 6 2 Robert Forsyth - Direct 1 But I was with Curtis in the waiting room and then in 2 the examination room. 3 Q You believe you were present when he was 4 there with Dr. Godsey? 5 A Yes. I was with Curtis and Dr. Godsey, 6 yes. 7 Q Do you recall what Curtis said about his 8 injury to Dr. Godsey? 9 A other than descriptions, no, no, not 10 really. 11 Q What descriptions did he give of his 12 injuries? 13 A He hurt it, it was getting stiff and sore. 14 He had pain in the knee now. Describing it to him as 15 you would describe an injury to a physician. 16 Q Do you recall if he said it hurt a lot or 17 a little? 18 A I think he said his knee was starting to 19 hurt him, you know. 20 Q And Curtis had already told you before he 21 went to Godsey that it had been getting worse and he 22 was concerned about it? 23 A It had gotten worse over the weekend. 24 Q And do you recall if he pointed to other 25 parts of his leg when he was in there with Dr. CRANE-SNEAD & ASSOCIATES, INC. 1 6 3 Robert Forsyth - Direct 1 Godsey? 2 A No, I do not. 3 Q You do not recall if he did? 4 A I do not recall him doing it, no. 5 Q What you're saying is you don't believe he 6 did, but you don't recall that? 7 A That's correct. I have no recollection of 8 him pointing to any other parts of his leg. 9 Q Do you recall him saying anything about 10 his back? 11 A No. 12 Q or shoulder? 13 A No, I don't believe so. But then if his 14 shoulder had a little stiffness, I don't know. ]But 15 no, I don't recall anything specifically about an 16 injury to the shoulder. There's a little click of 17 memory that there was something to do with the 18 shoulder, but nothing more. 19 Q I take it you are not sure whether or not 20 he mentioned something was wrong with the shoulder to 21 the doctor; you're pretty sure he didn't mention the 22 back? 23 A I'm pretty sure he didn't mention the 24 back. I don't recall any mention of the shoulder to 25 the doctor, but, like I said, I have a little click CRANE-SNEAD & ASSOCIATES, INC. I 6 4 Robert Forsyth - Direct 1 of memory there. 2 Q Have you ever heard of anyone else getting 3 hurt in the way similar to the way Curtis got hurt in 4 this accident? 5 A No, no, nothing that comes to mind. 6 Q Have you ever heard of anyone else getting 7 hurt by getting a hose -- pneumatic, hydraulic, 8 whatever -- caught on something? 9 A No, I don't remember reading any injury 10 reports. We get injury reports every Friday that we 11 read in these meeting on Monday, and I don't recall 12 this -- 13 Q When I say hurt, I don't mean just limited 14 to the injury reports you might read, but also 15 verbally been told by anybody. 16 A No. We are out of the mainstream at the 17 Railroad, you would say. But no, I haven't, as I 18 recall. 19 Q Do you believe there's anything that 20 Curtis did that caused his own accident? 21 MR. SETLIFF: That's not a fair question 22 for this witness, John. He's here today as a 23 fact witness, and you can ask him what he saw, 24 smelled, said, heard, and did. But now you're 25 asking him opinion questions, and you have not CRANE-SNEAD & ASSOCIATES, INC. 1 6 5 Robert Forsyth - ]Direct 1 qualified him as an expert witness. You 2 haven't qualified him as an expert witness. 3 He hasn't had the benefit of seeing Mr. 4 Fowlke's recitation of what happened yesterday, 5 so he doesn't have sufficient foundation or 6 basis to draw on the conclusion that you just 7 asked him. 8 MR. COOPER: Are you planning to consider 9 him as an expert at a later time? 10 MR. SETLIFF: If and when he is designated 11 as an expert, I would think it would be fair 12 for you to depose him on whatever opinions he 13 may render in this case. 14 MR. COOPER: I'm asking what I deem to be is just a factual question. 16 Q I'm asking, do you have any facts that 17 would indicate that Curtis caused his own accident? 18 MR. SETLIFF: Same objection. 19 MR. COOPER: (To the witness) Go ahead. 20 A I would speculate that there are things 21 that Curtis could have done to have prevented this 22 accident. 23 Q All right. What is it that he should have 24 done to have prevented the accident? 25 MR. SETLIFF: Those are opinions, John. CRANE-SNEAD & ASSOCIATES, INC. 1 6 6 Robert Forsyth - Direct 1 Those are opinions. 2 MR. COOPER: I'm asking him about facts. 3 MR. SETLIFF: But facts is something that 4 happened. Facts can't be something that should 5 have happened. That's an opinion. That's an 6 issue. 7 MR. COOPER: Are you instructing him not 8 to answer? 9 MR. SETLIFF: I'm asking you to treat him 10 -- give him the benefit, if you're going to ask 11 him opinion questions, to let him see what the 12 facts were before you put him in a position 13 where he's got to draw conclusions about what 14 the man should have done. 15 MR. COOPER: i think that's facts. 16 MR. SETLIFF: He doesn't know what Curtis 17 -- but I can tell you already, and you know as 18 well as I do, that what Curtis said happened 19 and what he understands happened are different 20 things. But he doesn't have an adequate 21 foundation upon which to draw those 22 conclusions. 23 Q Sitting here today, as the facts are, 24 whatever you understand them to be, are you aware of 25 any facts that you believe that Curtis did something CRANE-SNEAD & ASSOCIATES, INC. 1 6 7 Robert Forsyth - Direct 1 wrong, failed to do something that he should have 2 done, or did something that he shouldn't have done, 3 causing an accident? That's what I'm asking. 4 A I think Curtis could have prevented this 5 from happening by moving the hose. That's just part 6 of the equipment that he was operating. 7 Q What do you mean by that? 8 A You know, keeping up with his hose, or the 9 hose that he needs to use the hammer. In fact, that 10 is a part of the cause of all of this. It was 11 something that Curtis had the power to control and 12 could prevent. 13 Q Do you know anything about Curtis, health 14 on the day before the accident? is A I know there have been a number of claims 16 against the Railroad. He had a strained back and -- 17 Q I'm not asking for a recitation of those; 18 I'm just asking you about the day before. on the day 19 before the accident, meaning immediately before this 20 accident, he was fit for duty, physically able to do 21 his job on the railroad, wasn't he? 22 MR. SETLIFF: I'm going to object to that 23 question. You're asking this man for a medical 24 opinion. 25 (To the witness) Answer it the best you CRANE-SNEAD & ASSOCIATES, INC. 1 6 8 Robert Forsyth - Direct 1 can, Mr. Forsyth, as a lay witness. 2 A For all appearances, yes, he was. 3 Q As far as you knew, he had no physical 4 defects or impairments on that date? 5 A None of which I was aware, or made aware. 6 (off-record) 7 Q And one of the things that you think he 8 should have done to maintain his hose better was to 9 look out for it being snagged or caught up on 10 something, right? 11 MR. SETLIFF: Let me tell you -- let me 12 make sure you understand something. Okay? 13 You're not going to depose this man twice. if 14 you start asking all these opinion questions is today, I'm not going to offer him up to you 16 again. I'm also putting you on notice that he 17 does not have the foundation and the basis for 18 the opinions that you're asking him. So you 19 won't get him twice. 20 MR. COOPER: I'm asking a follow-up 21 question to the question I asked before, so go 22 ahead and answer it. 23 THE WITNESS: Could I please hear the 24 question again? 25 (Off-record) CRANE-SNEAD & ASSOCIATES, INC. 1 6 9 Robert Forsyth - Direct 1 Q One of the things that you think he should 2 have done to maintain his hose better was to look out 3 or check for the hose getting caught up on something, 4 or snagged on something, right? 5 A Yes. 6 Q would you agree that if you have no reel 7 and no holder, that that's not as safe to do the 8 operation of using the spiking hammer as if you did 9 have those things? 10 MR. SETLIFF: Objection to the form of the 11 question. It's the basic province of the jury. 12 It's an ultimate issue in fact. He is not 13 designated as an expert witness 14 (To the witness) Answer it the best you is can. 16 A Not necessarily. I don't think the hose 17 reel necessarily makes that difference. 18 Q Have you ever reprimanded a worker for 19 being too slow? 20 A No, I don't think I have. 21 (Off-record) 22 Q Have you ever actually weighed the hammer 23 in question? 24 A No, no. I think it's heavier -- I thought 25 it was 35 or so. It's a little heavier than that -- CRANE-SNEAD & ASSOCIATES, INC. 1 7 0 Robert Forsyth - Direct 1 50 or so. No, I've never actually set it on the 2 scale. 3 Q In thinking about it since we were 4 inspecting, you would estimate it to be about SO 5 pounds? 6 A Could be, 50 to 60. 7 Q You'd estimate it be between 50 and 60? 8 A Yes. 9 Q And that's by picking it up yourself to 10 see what it felt like? 11 A Uh-huh. (Indicating affirmatively) 12 Q Do you know what exact model that was, 13 that hammer? 14 A No, but I can get it for you -- it's been 15 so long since we acquired it. 16 MR. COOPER: (To Mr. Setliff) If you 17 would, add that to your list of things that 18 Counsel is going to do. 19 Q Do you know how much it costs to mount the 20 reel, to buy it and mount it? 21 A Yeah. It's on the invoice. And I haven't 22 found the invoice and narrowed that down. But the 23 numbers on the invoice are $3,243.00, I think. 24 Q Give it to me again. 25 A About $3,000.00, a little over $3,000.00. CRANE-SNEAD & ASSOCIATES, INC. 1 7 1 Robert Forsyth - Direct I Q Do you know how much of that was labor 2 versus the materials? 3 A It was the whole job. And I've been 4 hunting for the invoice. and when you go through four 5 different track supervisors, the filing system 6 changes by itself. But I do have -- I did pull up 7 the maintenance on the truck, and that was the cost 8 of the entire installation performed in February 9 196/197 by Hesco here in Richmond. 10 Q Hadn't Hesco or somebody figured out how 11 to do the installation when they installed it on 12 other crew trucks before? 13 A I don't know that Hesco has been involved. 14 Now, this is an area where I can't pretend to know, is but I don't think that Hesco has been that involved. 16 I'm not sure how widespread they are, and there 17 aren't that many other -- you know, CSX has 18 operations in Richmond, but this is the only gang 19 truck that Norfolk Southern has in Richmond. There 20 is a hydraulic Beta (phonetical) in Roanoke. You 21 know, Hesco -- we went through this with Hesco. 22 Q Do you know if anyone made any inquiry to 23 ask the other Norfolk Southern crews who had helped 24 them install BETA? 25 A Yes, yes. I can't recall specific CRANE-SNEAD & ASSOCIATES, INC. 1 7 2 Robert Forsyth - Direct 1 conversations, but there was a place down at Roanoke 2 that had done some. Now, they weren't as familiar to 3 me as they were to people further west. 4 Q How many of these crew trucks do you think 5 there are, or were at that time, operating in 6 Virginia? 7 A On just the the Virginia Division? 8 Q uh-huh. (Indicating affirmatively) 9 A I really -- without point of 10 clarification, it really would just be a wild guess. 11 Q All right. Well, if you give me your best 12 estimate, I'll take that. I don't really want you to 13 guess. 14 A Maybe thirty or so. And, again, I'm just 15 trying to run over the track supervisors, 16 territories. The adjoining territory has three, and 17 we only had one. 18 Q Okay. If you all had gotten an earlier 19 start on it, it would certainly have been feasible to 20 have had the reel on this truck prior to the date Mr. 21 Fowlkes got hurt? 22 MR. SETLIFF: Objection to the form of the 23 question. 24 Q I mean, if it was available and physically 25 possible to do it, that's all I'm asking. CRANE-SNEAD & ASSOCIATES, INC. 1 7 3 Robert Forsyth - Direct 1 A I think there was still research going on. 2 I really don't want to speculate on that. 3 Q So you're telling me that you don't know 4 whether it was feasible or not? 5 A It would just be speculation on my part. 6 I really don't want to speculate on it. 7 Q It took approximately eight months, from 8 July to February, from the date you acquired the 9 thing to get it mounted. If they had started 10 approximately eight months before May of 1996, to 11 mount it, it could have been accomplished if it had 12 been started nine months before May 28, 1996, right? 13 MR. SETLIFF: I object to the form of the 14 question. It calls for rank speculation on the 15 part of this witness. 16 (To the witness) Answer it the best you 17 can, Mr. Forsyth. 18 A Whether things could have been different 19 in the preceding nine months -- I really can't answer 20 your question very well. 21 Q That's fine. 22 A That's assuming something else. 23 Q Would you agree that the larger the crew 24 size, the greater the likelihood is going to be that 25 that crew is going to be able to avoid injury? CRANE-SNEAD & ASSOCIATES, INC. 1 7 4 Robert Forsyth - Direct 1 MR. SETLIFF: Objection to the form of the 2 question. It's the worst kind of speculation. 3 (To the witness) But answer it the best 4 you can, Mr. Forsythe. 5 A In some cicrumstances, you might wind up 6 and you had too many people in a smaller job. I 7 don't know if the statistics exist to bear that out 8 one way or the other, so I'd really -- as I said, I'd 9 prefer to have as many people as we can. It gives us 10 greater flexibility. We can handle more. But as far 11 as what, you know, we were doing that day, we had 12 enough people. 13 Q I'm not asking about the statistics; I'm 14 only saying, based upon your experience and common- is sense, would you agree that having a greater 16 flexibility that increased crew size gives you a 17 better chance to be more safe? 18 A Gives you a better chance to be more 19 flexible. It gives greater flexibility. I don't 20 know that it follows necessarily that it would be 21 more safe. When you're safe, it's something that 22 takes place one individual at a time. 23 Q Have you ever heard ef anyone getting 24 injured by tripping over a high spike? 25 A I'm sure people have tripped over them. I CRANE-SNEAD & ASSOCIATES, INC. 1 7 5 Robert Forsyth - Direct 1 don't recall a specific kind of injury that resulted. 2 But I'm sure people have tripped over high spikes. 3 It's a challenging walking environment. If you're 4 not up to the challenge of it -- 5 Q So I take it then you are aware of people 6 tripping over high spikes; you just don't know if any 7 ln]uries occurred? 8 A I think I've kicked one or two myself 9 over the years. No, I'm not aware of anybody that 10 announced an injury resulting from that. 11 Q Were you aware that a laborer might be 12 hesitant to ask a foreman to come down and do 13 something like hold a hose for him if the foreman 14 has other duties that he seems to be doing? 15 A That reverts to the specific personalities 16 on the site. 17 Q Have you known certain laborers that would 18 feel hesitant to do that? 19 A There could be a laborer who is determined 20 to perform by himself without asking for help. There 21 could be a laborer who does feel intimidated by it. 22 There could be any number of reasons why that 23 communication doesn't take place. It goes back to 24 the specific personalities. 25 Q Have you ever heard of the Railroad's CRANE-SNEAD & ASSOCIATES, INC. 1 7 6 Robert Forsyth - Direct 1 rehabilitation program? 2 A Yes. I'm not an expert on it. 3 Q How have you been made aware of it? 4 A Some printed materials and hearsay. 5 Q How many times have you ever seen any 6 written materials on it, just approximately? 7 A I'm not sure. Several. 8 Q okay. 9 A In passing, I get a lot of stuff that I 10 have to read. 11 Q Have you ever known anyone who 12 participated in it, an injured worker who went to it? 13 A Nobody comes to mind. 14 Q Curtis was safety qualified, is that 15 correct? 16 A I'm not familiar with that phrase. 17 Q Is there a similar phrase that you would 18 use that refers to people's knowledge about the 19 rules? 20 A Oh, he had passed the rules examination, 21 yes. Curtis had passed the rules examination. And 22 that's necessary to operate on-track machinery, and 23 various other requirements. 24 Q Would you agree that Curtis seemed fully 25 knowledgeable about the rules, as far as you knew? CRANE-SNEAD & ASSOCIATES, INC. 1 7 7 Robert Forsyth - Direct 1 MR. SETLIFF: Object on the ground that I 2 don't know what you mean by fully. 3 (To the witness) But answer as best you 4 can. 5 A Curtis had passed the rules examination. 6 There had been a few things that if Curtis was fully 7 knowledgeable of the rules, he violated them -- 8 taking a tamper outside of the yard and listed as 9 track time, which is a fairly central rule of 10 operating on the railroad. But Curtis had passed his 11 rules examination. 12 Q Do you know what the physical demands of 13 this job as a laborer are, meaning his ability is to 14 have to be able to lift up a certain number of 15 pounds? Do you know what that number of pounds is? 16 A No, I really don't. I've never seen 17 (Inaudible) -- 1 8 19 NOTE: The witness is asked by the court 20 reporter to speak louder. 21 THE WITNESS: I'm just wondering if that, 22 perhaps, I had seen that somewhere. But I 23 don't recall it, 24 Q Would you agree that a person who is going 25 to do this labor work has to be able to lift over So CRANE-SNEAD & ASSOCIATES, INC. 1 7 8 Robert Forsyth - Direct 1 pounds? 2 A Yes, he should be able to. 3 4 NOTE: After an off-record discussion, 5 Mr. Setliff, Mr. Price, and the witness 6 leave the room briefly. Upon their return, 7 the deposition resumes as follow: a 9 Q Mr. Forsyth, do you recall when you were 10 riding around with Curtis in the truck some time 11 after this accident, suggesting that he take the 12 newspaper that you sometimes keep in your truck and 13 put it back behind his back to ease back discomfort? 14 A The lumbar roll rider? 15 Q Yes. 16 A I don't recall suggesting that, but I 17 mean, it's possible. I know how to make a lumbar 18 roll. Sitting in these trucks, my back starts to 19 hurt after sitting in the truck. 20 Q Have you ever done that? Have you ever 21 used the -- 22 A The lumbar roll? Yeah, once or twice. 23 But, I mean, I don't recall that Curtis, back was 24 aching after sitting in the truck all day long. But 2S that's not a bad suggestion actually. CRANE-SNEAD & ASSOCIATES, INC. 1 7 9 Robert Forsyth - Direct 1 Q Well, I take it that if he remembers your 2 making that suggestion. 3 A It's a possibility. I don't remember 4 doing it though. You know, my back hurts after 5 riding in the truck for a long time now, too. 6 Q And you usually keep a newspaper in the 7 truck with you? 8 A Yes, I do. I buy it most mornings just in 9 case I get a chance to read it. 10 Q I take it -- you said before that you 11 don't know the amount of pressure that runs through 12 the hoses. You couldn't give me an estimate of that? 13 A I know the other hoses, or the tools, I 14 think, are rated up to 2,000 pounds, and some of 15 them, I think, are between 1,000 and 2,000 pounds per 16 square inches. But the flow rate that we were -- 17 what we were dealing with more than pounds per square 18 inch in trying to figure out how we were going to 19 work out the hydraulics into flow rate of gallons per 20 minute, which would be 25 to 245, i think it figures 21 it up to. I think TM is more significant than 22 hydraulics and psi and gallons per minute. 23 Q Tell me in your most basic language how 24 you can take slack up with a reel threader. How do 25 you do it if you wanted to just stand there and take CRANE-SNEAD & ASSOCIATES, INC. 1 8 0 Robert Forsyth - Direct 1 the slack up? 2 A All right. Now, this is standing off to 3 the side of the truck. The hammer is no longer 4 attached to the hose? 5 Q Let's assume the hammer is attached. 6 A If the hammer is attached to the hose, the 7 hammer is going to have to be set down on the ground 8 and then, depending on the angle that the hose is 9 relative to the reel, it's going to take varying 10 amount of tug and it's going to be fed with varying, 11 you know, responsiveness. And if you're standing 12 directly off to the side, in line with the axis or 13 perpendicular to the axis of the reel, it's going to 14 feed very easily. If you're standing behind the 15 truck or at an angle away, towards the other side of 16 the truck, it's not going to feed, as well. 17 Q And I take it you haven't done a lot of 18 testing of it at different angles to see how it 19 works, but you still have been wanting to do that? 20 A A little bit. I was curious about that -- 21 and then tried to figure out these things over the 22 weekend -- actually this morning, as well, and found 23 that it just was not being responsible (sic) and 24 stuff. And if you go too far to the left-hand side 25 of the truck, the boom is going to interfere with the CRANE-SNEAD & ASSOCIATES, INC. 1 8 1 Robert Forsyth - Direct 1 action of the hose, as well. You have to negotiate 2 the boom or wrap around the boom in order to get it 3 to feed back into the reel. 4 And as far as walking towards the truck s with the hammer and allowing the the reel to take the 6 hose in, that would be a difficult trick. I think 7 you would stand a real good chance of hurting 8 yourself doing that -- dropping the hammer, losing 9 control of the hammer, or off to the side, perhaps. 10 (Off-record) 11 MR. COOPER: I've finished asking 12 questions, by the way. 13 MR. SETLIFF: Are you done? 14 MR. COOPER: Yes. 15 MR. SETLIFF: He waives. 16 17 NOTE: With the consent of the witness 18 and by agreement of counsel for the respective 19 parties, the reading and signing of this 20 deposition by the witness is hereby waived. 21 22 And further this deponent saith not. 23 SIGNATURE WAIVED BY AGREEMENT OF COUNSEL AND THE 24 WITNESS. 2 5 CRANE-SNEAD & ASSOCIATES, INC. 1 8 2 1 COMMONWEALTH OF VIRGINIA, 2 CITY OF RICHMOND, to-wit: 3 I, D. McGuire, a Registered Professional 4 Reporter and a Notary Public in and for the State of 5 Virginia at Large, do hereby certify that the 6 foregoing deposition of ROBERT WRIGHT FORSYTH, IV 7 was duly taken and sworn to before me at the time 8 and place set out in the caption hereto. 9 I further certify that the signature of 10 the witness to this deposition has been waived by 11 agreement of counsel and the witness. 12 I further certify that the deposition was 13 recorded and transcribed to the best of my ability, 14 and that there were four exhibits marked during the 15 taking hereof; said exhibits being retained in the 16 files of counsel. 17 Given under my hand this day of 18 November, 1998. 19 2 0 21 22 D. McGuire - RPR Notary Public for the State of 23 Virginia at Large 24 My Commission expires: 25 January 31, 1999 CRANE-SNEAD & ASSOCIATES, INC.