MELVIN M. C"TER multi-pa9c TM HUCHAEL J. BOA" NORFOLK SOUntERN RAILWAY (gcqq q r7 10-30-97 Page 2 VLRGINLA: I Discovery deposition on oral cx@nation of 2Michael J. Board, by and bcfore Ruth A. Levy, a notary rN THE CIRCUFR COURT OF THE CRFY OF RICHMOND 3public in and for the Conunonwealth of Virginia at John Marshall Courts Building 4large, pursuant to Ruic 4:1 of the Rules of the 5SupTemc Court of Virginia, and by Notice to Take ------------------------------------------------------ 6Depositions lodged with the other papers in this MELVIN M. CARTER, 7action, conunencing at 4:43 P.M., October 30, 1997, at 8the law offices of Mays & Valentine, I I I I East Main Plaintiff 9Street, Riclunond, Virginia. 10 V. C&se No. I IAppc@: LB-3121 -1 1 2 MC@ N @MO, ESQ@ WMSON, @K & OWMO 1 3 of @l fm dc pl@ NOP,FOLK SOUTHERN RAILWAY COMPANY, 1 4 H. uwm. ESQ@ 15 Defendant 16 ------------------------------------------------------ 17 18 D@SMON 0 1 9 20 October 21 Richmond, Virginia 22 Reported by: 23 Ruth A. @, FPR 24 Page 3 Page 4 1 EXHIBITS I MIC@L J. BOARD 2 2 was swom and testificd as follows: 3 PAGF 3 4Board ExWbit 1 21 4 DIRECT EXAMINATION 5 DiagraTn by Michael Board 5BY MR. SHAPIRO: 6Board Exhibit 2 25 6 Q Can you please state your full nwm. 7 Photograph No. 94 7 A Michael Board. 8Board Exhibit 3 26 8 Q What is your current address, Mr. Board? 9 Photograph with two Xs on back 9 A 5800 Wcstower Drive, Apartment F, lo Board Exhibit 4 28 io Richmond, Virginia, 23225. PhowgrWh of @ of dr rii I I chwgu @him I IQ What is your date of birth? 12 Bd @bit 5 28 12 A April the 3rd, 1967. 13 Diagrm of ["m and @ e@ ow 13 Q And what is your position with Norfolk 14 does 14 Southern? i 5Board ExWbit 6 30 15 A I'm a track foreman in the maintenance 16 Photograph marked zz 16 department. 17 (All @bits Tetained by Mr. Shapiro.) 17 Q What is your first date of work with 18 18 Norfolk Southern? 19 19 A April the 22nd, 1991. 20 20 Q And what is your educational background? 21 2i Do you have any college training oT high school 22 22 degree? 23 23 A WCnt tO college fOr four ycars but didn't 124 124 get my degree. DAVIS REPORTTNG, INC. Page I - Page 4 Reported by: Ruth Ann @, RPR MEELVIN M. CARTER Multi-Pagc TM NUCEL4,EL J. BOARD NORFOLK SOUTHERN RAILWAY 10-30-97 Page 5 Page 6 1 Q Wherc did you go? I A No. 2 A Concord in West Virginia. 2 Q Did you have any documents that you 3 Q Did you comc straight to thC railroad 3revicwcd, any statements that you had given before? 4after college? 4 A Yes. He asked mc some of the statements 5 A No. 5that was asked during thr timc we went ovcr the 6 Q Okay. And what did you do in the 6accident. 7intervening timc? 7 MR. LEVAS: Hc's asking you if you 8 A I workcd fOT United Air Van Lines for two 8 reviewed your statcfficnt. 9years before I came on with the railtoad. 9 A Oh, no. No. 10 Q Howdidyougetbackwithajobouthere? 10 11 A My cousin, hc's a fo@; hc works out I IBY MR. SHAPIRO: 12 herc. 12 Q Did you talk about any safety rulcs? 13 Q Prior to cotning to the deposition today, 13 A No. 14 did you havc an opportunity to nicet with Mr. @s 14 Q Did you look at any safety niles? i5 yesterday to go ovcr things for the deposition? 15 A No. 16 A That's @. 1 6 Q You said you started in 1991 with the 17 Q About how long were you able to rr=t widi 17 railroad? 18 Mr. Lewis? 18 A That's corroct. 19 A About an hotir, hoLLr and a half, somcthing 19 Q You wcre in the track dep@t, wcren't 20 likc that. 20 you, brack maintenance department? 21 Q And MT. Miller was thm, too? 21 A Yeg. 22 A That's corrrct. 22 Q Tcll me what you did in the track 23 Q Did you review any photographs, take a 23 maintcnance area and what your titics were from 1991 24 look at sonic of the photographs? 24 until the end of 1996. Page 7 Page 8 1 A I stww off on a T & S gang, whicb is Imaybe throc @s. 2Lhe tic and mdace gang, and ran scvcral mi&chidca, 2 Q And your title as of November of '96 was 3lilbor, that was about it. 3track forcnian? 4 Q And were you in that sar= position as of 4 A Uh-huh. 5the end of 1996? 5 Q And were you @ly working with a 6 A No. I biddcd off the T & S @ in maybe 6@n gang as track foreman, or were you a one-man 7'93, and I biddod in track -- I bidded in 7gang, as they say? How did it work? 8CharlottcaviUc, track main@ce in 8 A I don't umdcr@ 9Charlonesvitic. That was my first track main@ 9 Q In othcr words, you were the track 10 job. 10 foreman; did you have a track maintenance crew that I I Q CanyoujusttakemcupLhroughtheend 11 you normally worked with? 1 2of -- 1 2 A Yes. 1 3 A From CharloftsviUe, I went to Lynchburg; 1 3 Q How many in the crew, how niany peoplc? 14 from LyDchburg, I went to Manawas; from Mmmow I 1 4 A At the @? This wu whca? 1 5went to Alcxandria; from Alexandria I went to Front 1 5 Q As of early November 1996. 1 6Royal; from Front Royma I went to Ralcigh, NorLh 1 6 A Maybe about du= peopic, if I'm not 1 7CitroH=; from Raleigb, North CiLrolina to Richmond. 1 7mistakcn. 18 Q Was that all T & S work before you got 1 8 Q And where was your gang the week of Mr. 1 9here? 1 9CarL-r's injury, which happerbed on November 6th? 20 A No, jugt t3rack main@. 20 A Onc of the men, bc was the ex-foreman. He 2 1 Q And how long have you been in Ricbjnond as 21 wao Lk foreman before I becamc forcman. He wag on 22 of November of '96, working for Lhe railroad, based 22 vocalion. 23 in Richmond? 23 Q Who was that? 24 A @ ycars, I thmni,. Two and a half 24 A Clay McGiUy (ph). DAVIS REPORTRNG, fNC. Page 5 - Page 8 Repoftod by: Ruth Ann Lcvy, RPR MELVI[N M. CARTER Multi-Pagc@ BUCHAFL J. BOARD NORFOLK SOUTHERN RAILWAY 10-30-97 Pagc 9 Page 10 I Q And? I Q Who traincd you? 2 A Hc was on vacation. Onc of the laborers 2 A I can't even think of his namc. 3was taking his position as flagging and -- 3 Q Curtis Fowlkes? 4 Q Who was that? 4 A Curtis Fowlkcs and Clay McGilly. 5 A Robcrt L. Hughrs. 5 Q Was it all just on-thc-job training? 6 Q Do you know why he was flagging? 6 A Ycs, on-thc-job training. 7 A Hc was taking Clay's position. Clay was 7 Q Did you have any fotinal classroom training 8on vacation. 8at all about the rail changer machine? 9 Q Then who else? 9 A No, Sir. 10 A Scoft Quccnsbcrry, bc was on high raii, io Q Did anyone give you a manual on the rail I Iwhich is track ingpcctor. Hc was with the track I Ichanger machine? 12 inspector. 12 A No. 13 Q He was working with Mr. FoTsythe that day? 13 Q Was there any type of manual for the rail 14 A Forsythe, that's corrrct. 14 chmger machine? 15 Q So as of November 4th, a couple days 1 5 A I can't recall. 16 bcforc this accidcnt that wc'rc h= about, had you 16 Q Was @ any written manual at all about 17 operatcd that rail changer macwne bcfore that? 17 how to opetate the machine that you evcr saw? 18 A Yeg. 18 A No. 19 Q Andwhenwasthat? Lctmcgointowhen ig Q W= you told of w@ that was a 20 you first did; when did you first operate the rail 20 converted ballast regulator? 21 changer? 21 MR. LEWIS: ObjeCt to dC lack of 22 A First opcrating the rail changcr? 22 foundation. 23 Q Yes. 23 A Say that again. 24 A It was two years ago. 24 Page 11 Page 12 1BY rAR. SHAPLRO: Ithat was a couple ycars beforc the accidcnt? 2 Q Did Mr. Fowlkcs or Mr. McGilly tell you at 2 A Right. 3any tirrie that that machine had originally becn a 3 Q And how many fimes -- I want you to give 4ballast regulator? 4nie an estimate -- before NovembeT 4th, a couple days 5 A No. 5before tWs accident, do you think you had, (yn 6 MR. LEWIS: Same objcction. 6diffcrent days, actually operated that rail changcr 7 7machine? 8BY MR. SHAPIRO: 8 A During that ycar? 9 Q Do you know whether that machine had ever 9 Q During any tinic. io been a ballast rcgulator? 10 MR. LEWIS: From the point in time you 11 A No, I don't. 11 were trained. 12 Q Do you believe that machine was a 12 A 25, 30 timcs. 13 converted ballast regulator? 13 14 A It could have boen. I don't know. 14 BY MR. SH"IRO: 15 Q Had you ever looked on the nanie plate on 15 Q How many? 16 the side of the machiric that says it was a ballast 16 A Maybe 25, 30 timrs. 17 regulator? 17 Q 25 to 30 diffcrent days? 18 A No. 18 A Days, yeah. 19 Q I guess just to move on, I mcan, you don't 19 Q What other types of cranes had you 20 have any way of knowing w@ it was or wasn't 20 operated in your general work in the T & S or track 21 converted from a ballast rcgulator, right? 2i dcp@t? You worked hydraulic crancs? 22 A All I know was a rail changcr. 22 A Hub-uh. 23 Q Okay. Soyouhadon-the-jobtrainingfrom 23 Q What oticr types of boom or crane 24 Mr. Fowflxs and Mr. McGilly about dc machine, and 124 equipnient had you'd used besides the rail changer? j DAVIS REPORTRNG, fNC. Page 9 - Page 12 Rcportr,d by: Ruth Ann Levy, RPR MELVTN M. CARTER Multi-Pagc NUCHAEL J. BOARD NORFOLK SOUTHERN RAILWAY 10-30-97 Page 13 Page 14 1 A Truck. I A That's mw. 2 Q Truck boom? 2 Q Then MT. Carter cwne back, and on the 6th 3 A Yeah. 3of November you went back to start loading rail 4 Q Had you worked any othrt type of cranes? 4again. And before Mr. Carter got hurt, about how 5 A No. 5many pieces of rail had bccn loaded onto the rail 6 Q On Novcmbcr 4, a couple days before Mr. 6Cart? 7Carter got hurt, you had workcd the rail changer with 7 A About four. 8Ns crew; is that correct? 8 Q Had you seen Mr. Carter since the day of 9 A That's correct. 9thr accident before today? 10 Q And on that day, it was Freddie and Gerald 10 A No. 11 and you? I I Q Forgettingalldclegalmumbojumboand 12 A That's corrcct. 12 everpnng, are you sorry about what happencd to Mr. 13 Q And how had that day gone as far as 1 3Carter? 14 loading rail onto the cart? 14 MR. LFWIS: I object to the for7n of the 1 5 A SIOW. 15 question. 16 Q TIC Tail was in the saine placc on that 16 A Yeg. 17 day, next to the track, same place it was the day Mr. 17 i8 Cartcr got hurt. 18 BY MR. SHAPLRO: 19 A Exactly. 19 Q And can you tell me -- I'm going to go 20 Q And after you-all moved rail, you-atl 2o back and we'll gct into sorric dctail -- in your words, 21 movcd it down the bridgc and dropped sonic rail? 21 what happened in the seconds bcfore the accident 22 A That's right. 22 that -- can you tell us what happened? 23 Q You worked a whole shift that day without 23 A We was loading rail. Wc just got through 24 a problem? 24 loading a piecc onto the cart, and Mclvin had Pagc 15 Page 16 iuncoupled the rail dogs off the rail, which was on I Q Right. But I was looking at a few 2tbc cart. And bc gave mc a sign that the rail dogs 2picturcs of that winch, and I saw that cable doesn't 3was off or clear, and hc was watking away. 3look perfectly -- like it's perfectly wound. 4 1 swLLng the boom, gctting Tcady to load 4 MR. LFWIS: Object to dc fotm of the 5another piece of rail off the ground onto the cart, 5 question. 6and a certain jerk and the rail dogs got hung onto 6 7the Tail, which allowed the slack that was in tbr 7BY MR. SHAPIRO: scable, allowcd the Tail dogs to @ng, hining Mclvin8 Q ln offiff words, explain to me what you 9in the back of the leg. 9mean exactly. Th= was just enough slack that the 10 Q Did anybody have an opportunity to wam 10 rail dogs ciunc oM I Ihim or did it happcn too fast? I I A Right. 12 A Ycah, as soon as wc saw it caught and 12 Q I guess what you're saying about the slack 1 3jerked, wc yelled his namr out and he turncd around 13 is there was enough slack that whcn it caught it, it 14 and looked and saw it and tricd to get out of the 14 would allow it to swing out; is that what you mean by 1 5way. i 5that? 16 Q But it was too qtlick and he cowdn't move 1 6 A Ycs. 17 out of the way, right? 1 7 Q You had been doing this now, it was a day 18 A He tricd, but likc I say, the slack from 18 and a half Did you have a practice where you would ig the cabic allowed it to swing and follow him and it i9 try to lift those dogs up higher though before you'd 20 caught him on the back of the lcg. 20 movc thcm over? 21 Q What do you niean by that? Is that the way 21 A What do you mcan? 22 dE winch is, if thcre's sonic slack in it? 22 Q Well, in othrr words, when you bring the 23 A @ slack was off far cnough for him to 23 lever to bring thr -- you have a lever to bring the 24 take the rail dogs off thr Tail. 24 cablc up, right? DAVIS REPORTING, rNC. Page 13 - Page 16 Rqmrtod by: Ruth Ann Levy, RPR MMLVIN M. CARTER Multi-Pagc im NUCHAEL J. BOARD NORFOLK SO RN RAILWAY 10-3G-97 Page 17 Page 18 1 A Right. ithe cart to go get othrr picees carlier, did you 2 Q NormaLfly, wouldn't you try to bring that 2bring the slack up so it was over dc level of the 3cable up high enough so when you swing it over it 3rails bcforc you swung it over? 4can't catch any of the rails? 4 A Jitst dcpcnds on the position of the niii 5 A Ycah. 5dogs. 6 Q If you could do it over, would you have 6 Q What do you nwan by that? 7had it @gh cnougli so you wouldn't catch the rails? 7 A If it was away from the si& that I'm 8 MR. LEWIS: Object to the form of the 8loading on, I wonld ratchet it up, but if it was 9 question. 9clowr to thr sidc I was loading, I'd just swing the 10 You can answer. Go ahead. I'm going to io boom. I Imakc some objcctions, just for the record, and I I Q Okay. L4ct me makc sure 1'm understanding. 12 you can go ahead and anSWCTthe qucstion. i2 And it depends on how the rail dogs was laying on thr 13 A Ycs, by going back and looking at what 13 rail after he got through, whoever was unloading 14 happawd, yes, I could havc. But this is, by mc 14 dc -- i5 the people that I'vc been training with, this is -- I i 5 A Taking the rail dogs off the rail. 16 s= @ day in and day out, run this machine, and 16 Q ljustdtew a diagram here, just to try to 1 7like I said, this is onc of the ways that I saw these 17 SHOW thetafl changet, the boom and, say, for i8 operators ntn this machidc. i 8purposes of this, two rails. Tell mc again what you 19 You know, it just @ds on the position 19 were tabdng about whcn you said that it would depend 20 thetail is in and the position -- the way to get the 20 on where the rail dog was, when it would go up. 2 irail dogs off. You know, they swung it one way or 21 A If the Tail dogs was in betwoon two rails, 22 somctimcs thcy'll ratchct it, either/or, it's just 22 aftcr hc takcs it off, if I can swing it, I would 23 two ways thcy do it. 23 Swing it. If not, I would ratchet. But since the 24 Q Some of the times when you were moving off 24 rail dogs that Melvin took off was laying on top of Page 1 9 Page 20 ithe outsidc of this rail, I swung the boom. istood up instcad of just sliding off it, stood up and 2 Q Because you didn't twnk it could catch 2jitst caught a hold of it. 3dc rai I again? 3 4 A Exactly, or catch any of the othrr pieces 4BY MR. SHAPIRO: 5of Tail that was -- like, if it was on this side and 5 Q Okay. On that particular last section of 6tbcrc was mothcr rail hcrc -- 6rail that had been lowered onto the cart before the 7 Q You're pointing to tk side away from 7accidcnt, were two men holding the rail on both sides 8where the rails were on the giround. 8as @ lowcrcd it to the cart? 9 A ILigbt. 9 A Two mcn? 10 Q Go akad. If thcy wcrc on the opposite 10 Q One man on each end of thC Tail? i iside... I I A On onc cnd. 12 A I would have ratchrtcd it up. 12 Q Only on one end of the rail? 1 3Q So it could clear the rails when you went 13 A (Witness nods head.) 14 over it? 14 Q And was that Melvin Carter, was that dc 15 A Exactly. 15 plaintim 16 Q How did it catch that rail if the rail dog 16 A No, it was cithcr Gcraid or Frcddic. i7 was sitting even right on dw top -- and you said you 17 Q Gerald MiUer or Freddie Evans. Which end 18 felt you could swing it toward thr pilc on the ground 18 were they on, they were on the closest -- ig without catching anything -- how did it catch the 19 A This cnd (indicating). 20 rai I @? 20 Q TWy were on ft filr cnd? 2 1 NiR. LEWIS: Object to the form of the 21 A That's corrcct. So wcrc you asking wcrc 22 question. 22 they standing right there where Steve Lloyd was 23 A Thcjawswasopcn,andsomchow,Idon't 23 standing? 124 know how, whcn I swung it, the rail dog sort of like 124 Q No, actually, that's me. Not yet. Just DAVIS REPORTTNG, INC. Page 17 - Page 20 Reported by: Ruth Ann Lcvy, RPR MELVRN M. CARTER Multi-Page HBCHA.EL J. BOARD NORFOLK SOUTHERN RAILWAY 10-30-97 Page 21 Pagc 22 I hold on a second. I'm just going to let you show me. Iyou, correct? 2 Ths is supposed to be pieces of rail -- 2 A That's corrcct. 3 pretty bad -- but this is the track (indicating). 3 Q Gencrally facing towards your direction? 4 Here's you. I guess you're facing tWs way, kind of 4 A That's corrcct. 5 where the arrow is. Tbcre's a boom. Obviously 5 Q And you show Mr. Carter essentially at thr 6 there's more pieccs of rail. Assuniing that's the 6n-tiddlc -- let's see, on the cart closest to you, was 7 last piece of rail; can you put a rcctangle or 7hc kind of towards the middlc of the rail? 8 whatever and put initials where you say that 8 A Ycah, in the middlc, becausc that's whcrc 9 everybody was located as the rail was being lowetcd 9we got to pick the Tail dogs up, got to bc at the io to the cart. 10 centcr point. I I A (CoMplying.) 11 Q So the rail dogs werc in the niiddle? 12 Q ?ut a little arrow probably wwch 12 A Right. And the center point of the -- 13 dircction they were facing. Okay. 13 MR. LEWIS: Centa part of dW Cart? 14 A (CoMplying-) 14 A Ccutcr point of cart. 1 5 Q How about Mc for Melvin Cartcr. 1 5 16 MR. L@s: And where was he facing? 1 6BY MR. SHAPIRO: 17 THF DFPONENT: (Complying.) 17 Q So he would havc becn near the middle of 18 MR. SHAPIRO: So I'm going to mark this as 18 the two carts. You show him a littlc morc towards 1 9 Michael Board No. 1. Okay. ig you, but he would havc been pretty much in the 20 (Board Exhibit I is marked.) 20 middle? 21 21 A Pretty much in the middlc of the cart 22 BY MR. SHAPIRO: 22 here. It dcpcnds on the size of the rail. I guess 23 Q And you've shown that Mr. Miller and Mr. 23 it was a 30-foot piere of rail, so it depcnds. 24 Evans were on the far sidc of the carts, away from 24 Q So when that last piece had been lifted Page 23 Page 24 1 from Lhe ground, who was the crew Twmber who en@ I Q But you've got to check it, lift it a 2 Lhe rail dogs to the rail? When it was back on the 2littic bit to make sure? 3 ground, before it cwne to the cart, who was the crew 3 A Yeah. 4 membcr that hooked up the rail dog? 4 Q Once that piece was bcing lifted, who are 5 A Mclyin. 5you saying was steadying the rail, anyonc? 6 Q Okay. And did he give you any signals to 6 A One of *se; it was eithcr Gcrald or 7 lift it9 7Fred. I can't 8 A Yeg. 8 Q Okay. 9 Q And you had to drag it over a little bit 9 A Thcy was taking twms. I 0to get it under the boom before it's lifted, right? 10 Q And from your operator's seat, can you sec I IIn olher words, the boorn won't go all the way to I Iall the areas on the cart well? 1 2whcre the pieces were. 1 2 MR. LEWIS: On the date of the accidcnt, 13 A You had to let the slack out and -- 1 3 where thcy wcrc? 14 Q Drag it ti little bit till it got up under 14 MR. SHAPIRO: Yes. 15 Lhe boom? 15 A Ycs. Oh, yes. 16 A Right. 16 17 Q And fl= you had to get it balanced; 1 7BY tAR. SHAPIRO: 18 Mclvin had to give you signals to make sure it was in I 8 Q I'm going to show you a picture there and 19 Lhe middle? 19 ask you -- we did an inspection, l'U represent to 20 A RighL. 20 you, and wc took pict=s. Can you tell us if that's 21 Q And once it was balanced and it was 21 the perspoctive out of the operator's cab? 22 lifted -- 22 A Yeg. 23 A We center markrd it. If it'g centcr 23 Q And that's No. 94 for purposes of 24 markcd, it's clooc to -- 124 identification. Looks to nw like some of that DAVIS REPORTING, rNC. Page 21 - Page 24 Reported by: Ruth Ann Levy, RPR MEELVIN M. CARTER Multi-Page TM BUCHAEL J. BOARD NORFOLK SOUTHERN RAILWAY 10-30-97 Page 25 Pagc 26 1equipment may somewhat obstruct your vicw of the I MR. LEvns: Let rrke just object to Lhe 2cart; is that correct? 2 extent @ ffiat's not a photograph at the 3 MR. LEWIS: Object to the form of the 3 accident site or poritioned in a way that we 4 question. 4 laid any foundation ffint it was at the accident 5 A T'hc mat a4jusLs. 5 site. That was at a differcnt location. 6 6 7BY MR. SRAPIRO: 7 BY MR- SHAPIRO: 8 Q When he objects, somcd=s I my rephraw S Q Can you tell me which way was the canal in 9the qliestion. Does any part of the boom or the other 9 this Mike Board No. I diagain? Can you draw an artow 10 equipment in any way obsLrucL any of your view when 10 which way was the canal? I Ilooking toward the rail carts out of the opcrator's I I A (Complying-) 12 cab? 12 Q Youjustputanarrowcomingtowardsthe 13 A Dcpendsontheangle. Yes. Dcpcodson 13 sectims of rail. Okay. 14 thcanglc,ycs. Dcpcndsouthcangic. Somcmgkk 14 Lct me show you a picture which has got no 15 YCB. 15 nwnber on the back. Wc'll call this Mike Board 3 and 1 6 Q From Lime to tinie, would you actually get 16 we've got two Xs an the back of the picture. I'll 17 up from your wat to move around to sce things? 1 7ask you if you can identify thilt. 18 A Ycs, if I'm guiding rafl, I'm looking, I 8 (Board Exhibit 3 is marked.) 19 m-k-init awc, you know, cvcrybody's in the cim and 19 20 m-irmng g= the rad is going smooth. 20 A Mat's the oprrator's seat. 21 MR. SHAPIRO: Okay. Let nic go @ and 21 22 mark that as No. 2. 22 BY MIL SHAPIRO: 23 (Board Exhibit 2 is marked.) 23 Q Does that operator's seat swing 360 24 24 degrws? Page 27 Page 28 1 A Yes. I (Board Exhibit 4 is marked. 2 Q In other words, that seat will tum afl 2 3the way oric way and all the way dr other way? 3 BY MR. SHAPIRO: 4 A Ycs. 4 Q I markcd this as No. 4. Is that a pictLLre 5 Q And when you're looking out towards the 5 of the levers on dc rail changer machine? 6boom, wmch way arc the levers from you, if you are 6 A Ycs. 7looking at the boom? 7 (Board Exhibit 5 is markcd.) 8 A It's on my right-hand sidc. 8 9 Q And wherc are the clutches and the other 9 BY MR. SHAPLRO: 10 opcrating gears when you want to move the rail 10 Q I marked this as Mike Board 5, and what I Ichanger on dc track, along tho track? I II'd likc you to do, if you would, is make a littic 12 A If I'm facing the boom, it's bchind mc. 12 notr here and tell me what each of thcse lcvers does. 1 3 Q You can't even work those while you are 1 31 drcw a line. Just tell nie -- you can move them up 14 looking out toward the boom, can you? 14 or down -- just tell me what each one does, please. 15 A You ain't supposcd to. 15 A (Complying.) 16 Q Right. Okay. Andwhichhanddoyouuse 16 Q YoujustwrotconExhibit5whateachof 17 to operate the levers? 17 the five levers docs on the machine, correct? 18 A Both. is A Yeg. 19 Q Okay. How many levers are there? 19 Q What does the cable ranch do? 20 A Five. Only two opetatcs the boo@ one of 20 A Cabic ranch that brings the -- this right 21 them -- onc opcmtes the boom and onc operatcs thC 21 hcrc (indicating). 22 wrench. 22 Q Oh, the winch? 23 MR. SHAPIRO: I'm going to get to that. 23 A @ winch. 124 I'm going to call this Mikc Board 4. 124 Q You said TanCh; you mcan winch? DAVIS REPORTFNG, INC. Pagc 25 - Page 28 Rq)orted by: Ruth Ann Levy, RPR MEELVIN M. CA-RTER Multi-Page TM HUCELAEL J. BOARD NORFOLK SOURHERN RAILWAY 10-30-97 Page 29 Page 30 1 A Winch. I (Board Exhibit 6 is markcd.) 2 Q Boom, right and left. 2 3 A Saw, up and down. 3 A You can sm it firom hoic. You can't see 4 Q What's the saw? 4 it on 6, but -- 5 A Rail SAWS On thCTC. 5 6 Q @re's a separatc tool that can go on 6 BY MR. SHAPIRO: 7 the -- 7 Q You're looking at Cartcr No. 2. 8 A It's two separate. Rail saw and a hand 8 A That's the saw right therc. 9 wrench. That tightens bolts. 9 Q So it's on the opposite cnd from the boom? 10 Q Do you have to conricct that on the cable 10 A Uh-huh. I Ifor it to work, or whcrc is that located? I I Q And what about the hand winch? Is that on 12 A Tbcy got a separatc cable. 12 the sanie side of the boom or different side? 13 Q So there's anothet cable sonicwh= on this 1 3 A That's on oppooitc side, it's on this 14 thing? 14 sidc, likc a hydraulic hose connectcd to it. 15 A Ycah. 15 Q So you weren't using anything but the far 1 6 Q Looking at this picture hem, which I'm 1 6left two controls, right? 1 7going to mark as zz, show me whcre thrsc other tt"gs 17 A The only two. 1 8arc. I 8 Q I'm going to switch to the next day, and I 19 A You can't sm it from here. 19 might come back to the day of the accidcnt a little 20 Q Okay. 20 bit. On the next day, a simulation was done with 21 MR. LFWIS: What nuinber is ft photograph? 21 respect to the accidcnt, right? 22 mR. sHAPiRo: It docsn't have a number on 22 A Uh-huh. 23 it. I jilst called it zz, which we're going to 23 MR. LEWIS: Objection rescrvcd. 24 mark as No. 6. 24 mR. sH"iRo: Okay. Page 31 Page 32 1 BY MR. SHAPIRO: I evcr move the boom back to the lcft and then to thr 2 Q And some of the supervisors were there, 2 right, or did you simply, each tinie, move it just out 3 Mr. Billingsly, Mr. Snow; was Mr. Meredith there? 3 toward the track area where the -- 4 A YCS. 4 A Just out towards it. 5 Q And did they ask you whm the rail dogs 5 Q Did you ever try to sijnulate it with the 6 were just before the move happened where dw rail 6 Tail dogs sitting down to the side of any of the 7 came off the cart? 7 sections of rail as opposed to laying on top? 8 A Ycs. 8 A No. 9 Q And you told them that the rail dogs wcre 9 Q Why is that? 10 sctting on top of the rail, I believe? 10 A That's the way thcy wanted it. Because 11 A YCS. i ithat's whcrc I told thcm they was laying. 12 Q And when the simulation was tried cach 12 Q Whcn you did that simulation and you had 13 tinic, that's where the rail dogs were left, correct? 13 thr rail in that position, could you sce those rail 14 A YCS. 14 dogs clearly from wherc you were seated in the 15 Q And some slack was put in the liric? i5 oprrator's cab? 16 A YCS. 16 A YCS. 17 Q And then did you @ply try to take the 17 Q In other words, the boom didn't get in the ig boom and move it out toward where tc rails were on i8 way? ig the ground? 19 A No. 20 A Right. 20 Q And you w= just seated in the regular 21 Q And you did it a fcw times and then one 21 position? 22 tinie it snatched it and did the sarrie thing? 22 A Ycg. 23 A Exactly. 23 Q The rail that was the last one that was 24 Q When you tricd to simulate it, did you 124 laid that you were tawng about just now, in DAVIS REPORTFNG, rNC. Page 29 - Page 32 Reportod by: Ruth Ann Levy, RPR MELVIN M. CARTER Multi-Pagc TM HUCHAEL J. BOARD NORFOLK SOURHERN RAILWAY 10-30-97 Pagr 33 Page 34 i rclation to dr cart width, you know, side to side, I A About six foct. Atmost six fect, six to 2 about whcre was that rail? 2 eight feet. 3 A On the outaidc towards the sidc that I was 3 Q And were you following thr Norfolk 4 swinging the boonl 4 Sou@ rules regarding hand signals at the tiinc 5 MR. LEWIS: The side nearest to the canal? 5 this accidcnt happened? 6 6 A YCS. 7 BY NiR. SHAPIRO: 7 Q Is there a requimment that the person 8 Q Closest to whete the rails were on the 8 giving hand signals to an operator like yourself be 9 giround? 9 in visual communication, that is, visual line of 10 A Exactly. 10 sight with you? I I Q Tbc canal side. So if we look at Mike I I A Yes. 12 Board 1, this exhibit here, which iS jUSt a SCTawl of 12 Q Wbm you placed Mr. Miller and Mr. Evans, 13 dX Tail changer and two carts, you're saying that 1 3both of them were in visual lirte of sight with you, 14 the rail and the rail dogs laying on top would have 14 Weren't dwy? i5 bmn along the -- 15 A Ycs. 16 A Outaidc. 16 Q And you say that Mr. Cartff was about at 1 7 Q -- outsidc of dc two rail carts closest 17 dx middle of the rail, beforc he tumed around to 18 to the arrow you have over here, right? i8 leave the caM right? 19 A Exactly. 19 MR. LEWIS: He said the niiddlc of the 20 Q Right along the edge? In odw words, 20 cart. 2 1just prctty much towards the edge of dc cart? 2 1 22 A Yeah, towards the cdge of thr cart. 22 BY MR. SHAPIRO: 23 Q About how wide is the cart, the whole 23 Q The @ddle of cart. I thought -- you 24 width of the cart? 24 said -- Page 35 Page 36 1 A Middle of the cart, midway, bctwccn the I A Yes. Becausc this -- towards the cab, 2 middle of the cart. 2 it's a pinch point. 3 MR. LPWIS: you have it drawn thcrc. 3 Q Towards the cab side whcrc you were 4 THF DEPONPNT- Yeah, exactly. 4 Sitting? 5 5 A It's a pinch point. 6 BY MR. SHAPIRO: 6 Q As the rail is carried across? 7 Q Okay. But did I hear you say that Mr. 7 A YC8. 8 Carter did something with the rail dogs just bcfore 8 Q What pinch point? 9 he tumed to walk away? 9 A For your hands. You can gct yottr hands 10 A Hc took thm off. 10 pinched coming into -- becauw -- can I we a I I Q He took them off. Oh, okay. And Mr. I ipictum? 1 2Carter, did he ever steady the rail on thr side 12 Q Sure. One that shows somcthing like this 1 3closcst to you as the rail was closc to the cart? 13 (indicating)? 14 A Did bc what? 14 A Exactly. 15 Q Stcady, did he put his hand on the rail 15 Q What is the pinch point you're referring 16 closest to you as the rail came to br loaded on the 16 to? 'Ibat's the No. 92 photograph. 17 Cart? 17 A If he's on this side -- 18 A No. 18 Q Pointing towards the side toward the 19 Q So was it Mr. Miller or Mr. Evans on dc 19 operator of the rail changcr? 20 other end steadying? 20 A --wbcnhclsgottenthcrailin,hishand 21 A That's correct. 21 can hit either thr boom or them's a tool box or 22 Q Was that the normal practice that moming, 22 somcthing that's right here that is -- I can't 23 wherc thr only pcrson on the onc side of the rail 23 rcahy -- it's not a clear picturc. 124 would help steady it? 124 Q Okay. Well, the pinch point you're DAVIS REPORTFNG, INC. Page 33 - Page 36 Reported by: Ruth Ann Levy, RPR MELVIN M. CARTER Multi-Page BUCHAEL J. BOARD NORFOLK SO RN RAILWAY 10-30-97 Pagc 37 Pagc 38 1referring to is not a pinch point bctwocn the laycrs I opcrator's cab to squeeze someone, right? 2of rail on the cart, but you're just saying for Ids 2 A Exactly. 3body to get pinched? 3 Q Couldn'tdwrailjustaseasilysuddenly 4 A Body, cxactly. 4 jerk out the other way and hit soniconc? 5 Q And what is different about the pinch 5 A Not if I'm guiding it in, how could it? 6point type concems at the end closest to you versus 6 Q Well, I mean -- 7the other cnd? 7 MR. LEWIS: Object to the question. 8 A Bccausc you're away from the machinc. 8 9 Q Okay. 1 don't understand. You'Te on the 9 BY MR. SHAPIRO: 10 other side. You're away ftom thr rail changer, you 10 Q If the rail's going down, couldn't it I Imean? I Iswing towards you, swing out? 12 A Yeah, cxactly, from the cab. 12 MR. LEWIS: Object to dc form of the 13 Q What parts of the cab are different as far 13 question. 14 as a pinch point or the conccrn about being there? 14 A No. 15 A I mcon, anything can -- 1 5 16 Q You mean if the macwne moved? 1 6BY MR. SHAPLRO: 17 A No. No. 17 Q Why not? 18 Q What do you mean? 18 A I'vc got the control. I'm guiding it in. 19 A Just if the rail is coming, I'm gitiding 19 Whem would it @ng out if I'm gitiding it in? 20 tbc rail and this happcned, if thcrc's a certain jrrk 20 Q That's why 1'm asking the question. 21 of anythling, you lmow, you don't want to bc caught 2 1A No, it didn't. 22 towards the cab of the operating -- towards the 22 Q If thr rail is like this and you've got 23 opcrating sidc of the irail changcr. 23 the boom -- I guess that's not a good picture. Well, 24 Q Bccausc the rail could movc -- like dc 24 lct's take one of these othrr drawings. Page 39 Pagc 40 1 Let's go back to No. I h=. If you'Te I got the machinc hcrc, you don't havc nothing hcre. 2moving the rail in and it's steadily moving from the 2 You're on the outsidc. So you don't havc nothing 3ground over to the cart, why is there any more reason 3 betwwn you and the rail. You don't wmt to gct 4that the rail would shift towards you as opposed to 4 never get in betwcen the machine and the rail. 5out? 5 6 A I didn't say towards me. I said just 6 BY MR. SHAPIRO: 7towards the cart, becausc I'm -- 7 Q Okay. @ machine being thC Tail changer, 8 Q Towards the cart, all right. But if the 8 you mean? 9nien were always standing to the side, if you're 9 A Right. 10 looking out to your right, I still don't undetstand 10 Q Okay. Did Mr. CarL-r attach the dogs I Iwhy it's any worse towards your side versus the I Ievery time that the rail was lifted off the side of 12 outside, that is, the sidc Mr. Evans is on. 12 the track? 13 MR. LEWIS: Do you understand the 13 A No, thcy took turns. 14 question? 14 Q @ thcy took turns, was there any times 15 A No, I don It. 15 when one person was on each end of the rail helping 16 16 steady it? 17 BY MR. SHAPLRO: 17 A No. 18 Q Why was it any more dangerous to be on the 18 Q Evcry tirrie, @ was one person on the 19 side closcst to you or the side that Mr. Evans was ig rail? 20 on? 20 A Yes. 21 MR. LEWIS: Object to the fortn of the 21 MR. LEWIS: I think you'vc asked that 22 question. 22 before. 23 A This is cicar. If anything could happcn, 23 24 you are in -- thcrc's no pinch pointg. Becausc you 124 DAVIS REPORTYNG, INC. Page 37 - Page 40 by: Ruth Ann @, RPR 1 MELVIN M. CARTER multi-pagc IM HUCHAEL J. BOARD NORFOLK SOUTHERN RAILWAY 10-3@97 Pagc 41 Page 42 1BY MR. SELAPIRO: i the 6th, give instructions to you or anyone else that 2 Q Was anyone using any device of any kind to 2 there was a dcsignated signal giver to you? 3help steady the rail from one end, any choker or 3 MR. LEWIS: Object to the form of the 4cable? 4 question. 5 A No. 5 A No. As an opcrator, you're only supposed 6 Q Every titnc, you said, people altcmatcd on 6 to look at one pmon giving signals. 7who clamped the dogs to the rail from the ground. 7 8Once the rail was over to the cart, was a signal 8 BY MR. SRAPIRO: 9given evety timc that the rail was stablc on dc cart 9 Q Right. I'm saying did he designate onc 10 for you to lift? jo person the whole moming to give the signals? I I A That the rail was stabic? I I A No. 12 Q Oncc the rail was set on the cart, was 12 Q So at different tinies different people 13 there a hand signal givcn to you every tirne the rail 13 gave you signals? 14 was so situated, before you lifted dw cable? 14 A YCS. 15 A Madc my move to -- ycs. 15 MR. LEWIS: Objcct to the form of the 16 Q Every time? 16 question. 17 A FvCry timc. 17 18 Q Without any exceptions? IS BY MR. SHAPIRO: 19 A No exceptions. 19 Q Did the person who was the dcsignated or 20 Q And it was different people giving you the 2o did thv particular person that engaged the rail dogs 21 signals at diff=nt tiny-s, depcnding who was -- 21 on ft giround beforc it was lifted, on every one of 22 A Tbcy gavc mc the signal it was clear to 22 thesc occasions, was that the person that gave all 23 make niy move to swing. 23 the signals, oT did the pcison at thr far end of the 24 Q Did Mr. Evans, at any @ that moming of 24 rail give signals to you also? Page 43 Page 44 1 A The petson that was engaging the rail dogs I putting your hands down at the jaws. 2gavc mc the signal. 2 Q So once it lowcrcd and it was stable, 3 Q Okay. And that was cvcry tirrie also? That 3 sonieone would give you a signal to put slack in it? 4varied on who it was, but it was evety titne? 4 In other words, once it's on the cart and stable, 5 A That's correct. 5 will you move bcforc a signal's given to you? 6 Q And cvcry time thr rail was moved onto the 6 A No. 7cart and it was lowctcd and basically steady, did 7 Q So you won't put any slack in the cabic 8that designated signal giver have to touch the rail 8 until you get a signal? 9dogs to remove them evcry time? 9 A Right. 10 A Ycs. 10 Q As long as it's on the cart? I I Q Okay. Aren't the rail dogs supposed to I I A Okay. Once I load the Tail on the cart, 12 opcn up automatically? 12 automatically I let the slack out. 13 A Somctimcs thcy do. But somctimcs the lip 13 Q You don't need a signal to do that; you 14 catches on the rail to opcn and onc lip would bc in 1 4can see yoursclf -- 15 two rails. Onc of the jaws, I mcm, not the 1 5A I can see it. 1 6lip, but the jaws. 1 6 Q Then what? 1 7 Q Somebms wouldn't -- 1 7 A If the rail dogs are still on the rail, if 18 A Oncofthcjawswilibecaughtinbctwc= 18 the lip is caught, they'll Tcach ovcr, pull the rail 19 two rails, would allow onc jaw -- it would opcn, but ig dogs off, givc me a signal that it's clear to makc a 20 it would still bc one jaw in betwcan two rafls. 20 swing. 21 Q Isn't that a pinch point, to put your hand 2 1 Q But what if it opcns by itselp Did it 22 in betwocn two rails? 22 evcr do that? 23 A You're not putting your hands in betwocn 23 A Certain occasions. 24 thcnl You got your hands up here. You'm not 124 Q So a man didn't nwd to go move it, ctid DAVIS REPORTING, rNC. Page 41 - Page 44 Reportrd by: Ruth Ann Levy, RPR MIELVTN M. CARTER Multi-Pagc KUCHAEL J. BOAJTD NORFOLK SOUrItERN RAILWAY 10-30-97 Pagc 45 Page 46 ithcy? ihad to lift or did you know you could lift? I mean, 2 A Depends. 2wcll, 1 guess you didn't have to put slack in the 3 Q I thought you said a momcnt ago evcry tinie 3cable, did you, if it fell off to the side. 4a man had to go in and each -- 4 MR. LEWIS: Object to dc form of the 5 MR. LEWIS: You asked him whether they 5 question. That's been asked and answered three 6 touched it, not w@ thcy had to move it. 1 6 times now. 7 object to the niisstatement. 7 8 mR. sHAPiRo: Okay. I just want to make 8BY rAR. SHAPIRO: 9 sure I understand. 9 Q Go ahead. You can answcr. 10 MR. LEWIS: I'm making sure of that. 10 A No, I didn't have to, if it fell off to I I I Ithr sidc, didn't have to put slack in it. 12 BY MR. SHAPIRO: 12 Q You just lift up and then over? 13 Q On the prior occasions bcfore Mr. Carter 13 A Ycs. 14 was hurt, do I undcrstand you to say that a worker 14 MR. LFWIS: With or without a signal? 15 didn't evoy timc havc to rcach in and touch the 15 THE DEPONFNT: With a signal. 16 cabic oT the rail dogs? 16 MR. LEWIS: Thank you. 17 A Just dcpcnds how close the rail was 1 7 18 loaded. 18 BY MR. SHAPIRO: 19 Q Wcll, if it opened up nice and fell off to 19 Q So -- 20 the sidc, wm there occasions where a man didn't go 20 A I would lift up md they'd give mr a sign 21 in therc and touch thr cable or the rail dogs? 21 to @ng and I'fl swing the boom. 22 A True. Ycs. 22 Q DidyouncedasignalinoTdcrjustto 23 Q Okay. Iftheydidn'ttouchitanddidn't 23 lift up though? 24 need to touch it, did thcy givc you a signal that you 24 A No. Pagc 47 Pagc 48 1 Q Who gave you the signal to move it over in II'm not trying to trick anybody hcm, but Mr. Board, 2that second or two bcfore Mr. CarL-r was hit from 2if he was looking at you from that side, facing you, 3behind with the rail? 3he'd want to go to the left, wouldn't he? 4 A Ntr. Carter. 4 A Hc wasn't facing mc. 5 Q Mr. Cartcr gave you the signal to move 5 Q Where was he facing? 6back? And show me visually what he did, what sipal 6 A Hc was facing the rail. 7he gave you. 7 Q Facing into the cart? 8 A (Complying.) 8 A Facing into the cart. And giving mc the 9 Q You took your arm and moved left to right? 9signal to go this way. I 0 A Giving mc the signal. 10 Q So he's still giving a signal really; you I I MR. LEWIS: Is your finger pointing or I 1werc supposcd to back toward his rear? 12 does that matter? 12 A Hc's standing, took the rail dogs off, 13 MR. SHAPLRO: His finger is pointing and 13 gavc mr a signal this way (indicating). 14 he's showing left to right. 14 MR. LEWIS: You're tuming, what he's 15 15 showing, and the record's not clear; you're not 16 BY MR. SH"IRO: 16 going straight -- 17 Q So Mr. Carter gave you a signal to -- 17 THE DEPONENT: I'm not going straight. ig wcll, you showed left to right, like this 18 I'm going to the back. 19 (indicating), but look at the picture again. He's 19 20 standing here (indicating). @ch way would he be, 20 BY MR. SHAPIRO: 21 if he's standing here, facing? 21 Q Hc'd be facing the cart, he would be 22 A He's giving me the signal to swing the 22 pointing to the right, which was essentially pointing 23 boom to thr right. 23 away from you, right? 124 Q Okay. I don't want anyonc to be confused. i24 MR. LEWIS: To lis rear. DAVIS REPORTRNG, INC. Page 45 - Page 48 Rcportr,d by: Ruth Ann Lcvy, RPR MEELVIN M. CARTER Multi-Page KUCELAEL J. BOARD NORFOLK SO RN RAILWAY 10-30-97 Page 49 Page 50 I A To my Tcar. I question. 2 2 A Not unth after the incidcat happcncd. 3 BY MR. SHAPIRO: 3 4 Q Mr. Carter's rear? 4BY MR. SRAPIRO: 5 A If he faecd it, got the rail dogs off, 5 Q How did you bocome awam of that? 6 faced here, md gavc mc a signal just likc that 6 mR- LEwis: Same objection, to anything 7 (indicating), so hc's facing stnlight, which he'd 7 post-accident. Go ahead. 8 tumcd. 8 A Mr. Snow, he scat out a lctlcr. 9 Q Okay. And so dxn your testimony is you 9 io began to move the -- did you ever raisc the cable 10 BY MR. SHAPIRO: I Iftom that point, or (iid you jLLst -- I I Q What did the letter say? 12 A I swung dc booHL 12 A Said that any type or machinc, ftwk, that 1 3 Q Without lifting the cable? 1 3has a boom with a wrench an it -- 14 A That's correct. 14 Q A winch? 1 5 Q And the dogs were still sitting on top of 15 A A winch. Device with raU dogs, bcfare 1 6the rail? 16 m-iring any swing moves or -- I don't know it off the 1 7 A On top of tk rail. 1 7top of my head -- make a= the rail dogs is cicar 1 8 Q And you could see them? 18 orf the rail before making any @ moves, make sm 1 9 A Ycs. 19 you wrcuch up. r- 20 Q Are you awarc of any safety practice that 20 Q Right. 21 suggests that if anyone using a hoist should cicar 2 1 A Before you makc any typc of swing moves. 22 the sling or dog or tongs above the matetial bcfore 22 Q Did they suggest to you that you should 23 swinging the hoist? 23 have known that as of the day of Lhe accident? 24 MR. LEWIS: Object to dc fotm of the 24 MP- LEWIS: Object to the form of the Page 51 Page 52 1 qucstion. Icommunication with you, that is, line of sight, 2 A No. 2right? 3 3 A That's coTFrct. 4 BY MR. SHAPIRO: 4 Q And only one person should be giving 5 Q Had you ever hrard that befotc thr day of 5signals on a designated move? 6 the accident? 6 A That's correct. 7 A No. 7 Q It's yoLLr testimony that that morning and 8 Q Do you fcel that the location of the 8on the moment before the accident you ncver swung the 9 control levers bcing relatively close together makes 9boom from over the can back toward the pilc unless 10 this machinc at all difficult to operate? 10 you had a hand signal? I I MR. LEWIS: Object to the form of the I I MR. LEWIS: Object to the form. it's been 1 2 question to the cxtent that it calls for 12 askcd now four timcs. Go ahead. 13 opinion. 13 A That's truc. 14 A No. 14 15 15 BY MR. SHAPIRO: 16 BY MR. SHAPIRO: 16 Q Mr. C@ has testified today that he was 17 Q You don't think the location of the levers 17 stcadying dw rail on the end closcst to you. Is it 18 being closc togeffiff is bad? 18 your testimony that at no time was he steadying the 19 MR. LEWIS: Same objection. ig rail the point closest to you? 20 A No. 20 A No. 2 l@ 21 Q On Or last move? 22 BY MR. SHAPLRO; 22 A No. 23 Q You would agree with nie that thr person 23 Q Mr. Carter has testified that he never 24 giving you hand signals nccds to be in visual 124 touched the rail dogs on the last move. Is it still DAVIS REPORTTNG, INC. Page 49 - Page 52 Reported by: Ruth Ann Levy, RPR MELVIN M. CARTER muiti-page@ BUCHAEL J. BOARD NORFOLK SOUTHERN RAILWAY 10-30-97 Page 53 Page 54 i your testimony that and you're p" positive about I 13Y MR. SHAPLRO: 2 your recollection? 2 Q Was it done by Ray Mengcrink? 3 A Yeah. 3 A Ican'trcnwmberthenamc. Ibclicvehe's 4 MR. LEWIS: Is that a yes? 4 in Charlottesville. 5 A YCS. 5 MR. LEWIS: i believc Mr. Mengerink 6 6 inspected it after the accident. 7 BY MR. SHAPIRO: 7 8 Q An adjustment was made to the hydraulic or 8 BY MR. SHAPIRO: 9 pneumatic niechanism that moves the boom the day after9 Q What did they adjust? io the accident or the day of the accident. 10 A Ho @wod mr there was some hydraulic -- 11 MR. LEWIS: Let me just object, lack of i itwo hydraulic cylindm that control the flow of the 1 2 foundation. Go ahead. 12 boom. 1 3 A The day aftcr. 13 Q How fast it will move from side to sidc? 14 14 A That's corrr-ct. 15 BY MR. SHAPIRO 15 Q And what adjusm=t was made? 16 Q Was an adjustment made? 16 A Hc showcd mc that the vials that was 17 A YCS. 17 tumd up to allow tbc boom to jetk or for thm to 1 8 Q Werc you present when it was made? 18 swing rcal -- dcpcnds if it's open, thcn it swings 19 A YCS. ig hard, fast, and if it's closed, it swings slow. 20 MR. LEWIS: Let mc put on my objcction 20 Q And @ slowed it down? 21 about post-incident modifications. 21 A It was tumed down. 22 MR. SHAPIRO: It's understood. 22 Q To make the lateral movenient slower, 23 23 corrcct? 24 24 A That's cotroct. Page 55 Page 56 1 Q Did you know as of the datc of the i would there have been time to wam Mr. C@ of the 2 accident that there was an adjustmcnt that coLLId be 2 rail? 3 made? 3 MR. LEWIS: Let me object, object to the 4 A I didn't know. The person that tnkincd me 4 form of the question. Let nie object to the 5 didn't know. I'm surc of that. 5 extent that calls for an opinion, speculation. 6 Q Do you think that assists in making the 6 Lct nic object to lack of foundation. Go ahead 7 machine safer? 7 and answer it. 8 MR. LFWIS: Objcct to the extent that it 8 A Yes, it could have. 9 calls for an opinion. Object to the form of the 9 10 question. 10 BY MR. SHAPIRO: I I A You can operatc it better, put it that I I Q Who was the foreinan over at MT. Carter's 12 way. 12 gang at dc scenc where you-all wcrc working? 13 13 A FTcddic Evans. 14 BY MR. SHAPIRO 14 Q Would you agree that that rail changer i5 Q Why is that? 15 machine can be a dangerous machine if it's not 16 A It don't swing as fast as it did whcn I 16 operated propcrly? 17 was opcrating it. 17 MR. LEVIIS: Objcct to the form of the 18 Q Well, have you operated the rail changcr 18 question. I also objcct becausc it also calls 19 sincc dc date of the accident? 19 for an opinion, lack of foundation, and 20 A Havc I? 20 speculation. Go ahead. 21 Q Ycs. 21 A Dcpcnds on the opcrator. 22 A Yes. 22 23 Q If the machine would move latcrally or 23 BY MR. SHAPIRO: 24 side to side SIOWCT or b=n adjusted to movc slower, 124 Q Okay. Certainly you'd agree that it can DAVIS REPORIING, rKC. Page 53 - Page 56 Reported by: Ruth Ann @, RPR MELVIN M. CA]TTER Multi-Page rm NUCHAEL J. BOARD NORFOLK SOUTHERN RAILWAY 10-30-97 Page 57 Page 58 i bc dangerous to the cxtcnt that you're moving prctty igoing ovcr what had happcned, talking to @ about 2 heavy sections of metal. 2what had happencd? 3 A Yes, it's a dangerous machine. 3 A No, bccausc we saw what happened. It was 4 MR. LEWIS: Same objcctions. Asked and 4a frcak acci&-nt. It just happencd so quick. 5 answcred. 5 Q VAien is the first tinic you wrote or gavc a 6 6sta@t to anybody about it, that aftcmoon? 7 BY MR. SHAPIRO: 7 MR. LFWIS: Object to dw form of the 8 Q You said Mr. Snow issucd a letter. Did 8 qucstion. Compound. 9 you get a copy of that letter? 9 A I don't @ber. 10 A I saw the letter. I read it. 10 I I Q Was it posted somewhcre or what? I IBY MR. S@IRO: 1 2 A No, it's not postcd. 12 Q Has anything else been done to that 13 Q Did you get any lettcrs from dc railroad, 13 machine othcr than the adjust=t to the hydraulic or 1 4any typc of letter, a personnel typc letter, about 14 pnewnatic thing since the time of the accident? i 5the accident? 15 A Just filter, oil changc. 16 A No. 16 Q Routine stuff? 17 Q You weren't charged with a rule violation, 17 A Routine staff. Routine @ntenance. 18 were you? 18 MR. SHAPIRO: Let me talk to Mr. C@T. 19 A No. 19 (Discussion off the record.) 20 Q After the accident, you were at the scene 20 21 there, after Mr. Carter was takcn away in the 21 BY MR. SHAPLRO: 22 ambulance, right? 22 Q A couple strange questions for you, Mr. 23 A (Witncss nods bcad.) 23 Board. What kind of sports do you do? Do you do any 24 Q Did you talk to Mr. Evans or Mr. Miller, 24 Sports? Pagc 59 Page 60 1 A Yes. Now? I A Yes. 2 Q Any time. High school, collcgc. 2 Q Do you throw a bascball with your right 3 A Yeah, football, track. 3hand? 4 Q What kind of position did you play in 4 A Ycg. 5 football? 5 Q And you write with your left hand? 6 A Full back and linc backer. I played linc 6 A That's right. 7 backcr in collcgc. 7 Q What else do you do with your left hand? 8 Q Any other sports? 8 A Eat. 9 A Track. 9 Q You use utensils with your left hand, io Q What about baseball or softball or 10 you'rc saying? i ianytwng WEe that? I I A Ycs. 12 A I play it -- I didn't play it at school. 12 Q Do you do anything else left-handed? 1 3 Q Are you lcft-handcd? 13 A I can operatc -- 14 A Ycs, even handed. 14 Q Controls? 15 Q You can throw right-handed? 15 A -- controls. 16 MR. LEVAS: What do you rrican even handcd? 16 mR. sHAPiRo: That's all I've got. 17 A I wtite with my lcft. I do cvcrything 1 7 MR. LEVAS: I don't have any questions. 1 8with my right. I 8 1 9 1 9 (Deposition concluded at 5:45 p.m.) 20 BY MR. SHAPIRO: 20 21 Q Wffich hand do you throw with? 21 AND FURTHER THIS DEPONENT SARFH NOT 22 A My right. 22 (Reading and signatum waived.) 23 Q Do you tluow a football with your right 23 24 hand? 24 DAVIS REPORTTNG, INC. Page 57 - Page 60 Reportrd by: Ruth Ann Levy, RPR MF,LVRN M. CA-RTER Multi-Page NUCHAF-L J. BOARD NORFOLK SOUTHERN RAILWAY 10-30-97 Pagc 61 1 COMMONWFALTH OF VIRG@ AT LARGE, to wit: 2 3 1, Ruth A. Lcvy, Notary Public in and for 4 the CommonweaM of Virginia at large, and whose 5 commission expites August 31, 1998, do @ that 6 the aforementioned appeared before me, was swom by 7 me, and was thercupon cxaniined by counsel; and that 8 the foregoing is a wx, correct and full transcript 9 of the testimony adduced. 10 I further certify that I am neither I Irelated to nor associated with any counscl or party 12 to this proceeding, nor otherwise interested in the 13 evcnt thereof. 1 4 Givcn under my hand at Richmond, Virginia, i 5the 18th day of November, 1997. 1 6 1 7 1 8 19 RPR ic 20 Conunonwcalth of Virginia at Large 2 1 22 23 24 DAVIS REPORTING, rNC. Page 61 - Page 61 Reported by: Ruth Ann Levy, RPR MELVIN CARTER v. NORFOLK SOUTHERN RAILWAY C014PANY DEPOSITION OF MICHAEL JEROME BOARD - 10130/97 Page/Line Testimony: [EXAMINATION BY n] 4 Michael Jerome Board / 5800 Westower Drive, Apt. F, Richmond, VA 23325 / track foreman in maintenance dept. / he began April 22, 1991 / went to college for 4 years, but didn't get his degree. 5 Went to college in Concord, WV / worked for United Air Van Lines for 2 years prior to employment with RR / his cousin is a foreman w/RR / met w/Clark Lewis and Mr. Miller before depo today. 6 Reviewed statementb, but did not review his statement / did not talk about any safety rules. 7 Duties in track maintenance were - between 1991 and 1996: started on T&S gang, ran several machines, did general labor work, switched to track maintenance in 1993 - Charlottesville / worked out of Lynchburg, Manassas, Alexandria, Front Royal, Raleigh (NC) to Richmond / was in Richmond as of 2-3 years before D/A. 8 As track foreman, had gang / supervised 3 people as of 11/96 / Clay McGinley. 9 Clay was on vacation / one of crew was flagging - Robert L. Hughes / Queensbury was on high-rail w/track inspector / had operated "RC" before this week in question / began about 2 years before. 10 Trained by Fowlkes & McGinley / on job - no classroom / no manuals on this machine / no written manuals on machine. 11 Says Fowlkes & McGinley didn't tell him this was converted ballast regulator never looked at name plate on machine that says ballast regulator. 1 12 Estimates he operated the machine 25-30 different days / had operated hydraulic cranes. 13 Operated truck booms, but no other cranes / on the couple of days before accident had worked with "FEII I "GM" & ff on D/A. 13/14 Had loaded rail the day or two before g was back with no problem, including moving it to the bridge. 14/16 He is sorry about what happened to ff. 14/23 15/22 How the accident happened: we just got through loading a piece onto the cart, & v had uncoupled the "RD's" off the rail, which was on the cart & he gave me a sign that the "RD's" was off or clear, & he was walking away. I swung the boom, getting ready to load another piece of rail off the ground onto the cart, and a certain jerk & the "RD's" got hung onto the rail, which allowed the slack that was in the cable, allowed the "RD's" to swing, hitting g in the back of the leg (any chance to warn] "Yeah, as soon as we caught it and jerked, we yelled his name out & he turned around and looked and saw it and tried to get out of the way. He tried, but like I say, the slack from the cable allowed it to swing & follow him & it caught him on the back of the leg." 17 Normally, he would try to bring that cable [and "RD's"] up high enough so that when he swings over it can't catch any of the rails - yes, correct. 17/6-23 If could do it over, would have had "RD's" high enough so it wouldn't catch the rails / agrees, but explains "he's seen this done two ways" / "it just depends on the position the rail is in and the position -- the weight to get the "RD's" off. You know, they swing it one way or sometimes they'll ratchet it, either/or, it's just two ways they do it". [RNS to check on this w/Fowlkes - do operators always bring in the slack first or do they sometimes just move the boom without bringing the slack in?] 2 18/1 Do you always bring slack up before swinging the boom over? / Answer: depends, "if ["RD's") were away from the side that he's loading on, would ratchet it up - but if it was closer to the side that he was loading, held just swing the boom." 18/21 Once "RD's" were taking loose, if he can swing it, he would swing it. If not, he L7 would ratchet up. 19 Here ir took the "RD's" off & they were laying right on top of rail / he didn't think they could catch. 19/4 Didn't think they'd catch that rail that was just landed, or any other pieces. 19/12 If "RD's" were closer to other rails (rails which were further away from the pile on the ground), he would have ratcheted it up. 19/23 Explains how "RD's" caught the rail that was just landed - the jaws were open and somehow, I don't know how, when I swung it, the "RD" sort of liked stood up, instead of sliding off & caught a hold of it. [This is the key explanation by operator of what happened & it clearly indicates that he did not ratchet up, but just swung boom over.] 20/10 Denies there was one man on each end of the last landed rail / believes "GM" or "FE" were on far end. 21 [RNS draws diagram.] Ex. 1. 21/23 Shows "GM" and "FE" on far side of carts. 22/4 "GM" and "FE" were generally facing him. 22/8 Shows v in the middle that's where he picked the "RD's" up center part of cart. 23 77 hooked up the "RD" on the last piece ff gave signals to lift / "MB" took slack out, dragged the rail on ground / when lifted, it got balanced / v gave signals, 3 but it was center marked. 24 Once center marked, have to lift a little to be sure it is in the center. 24/6 Says "GM" or "FE" steadied the rail from operator's seat could see areas of the cart. 24/23 Agrees with picture 94 from inspection, showing his perbpective. 25/13 Agrees some parts of the boom or other machine equipment can obstruct his view looking towards rail carts & depend on the angle / sometimes would get up from seat to look. 26 That is Exhibit 2 being discussed / on Exhibit 1 - drew an arrow pointing toward canal or sections of rail / we call that Exhibit 3 / two llxlsll are on back of picture. 27 Says operators seat swivels 3600. 27/8 Controls are to the right if you're looking at the work. 27/12 To move "RC" along the RR track itself, clutches and other gears are behind him from where he would look at work. 27/18 Uses both hands to operate levers / they are 5 levers / 2 operate the boom, 1 operates the wench. 28 Shown levers of the machine / Ex. 5 - he describes what each lever does / the cable wench moves the wench up & down. 29 Next, the boom lever moves right or left / next is for rail saws - not involved here / next is for hand wench - which is not involved here / this photo is marked IIZZ" on back & called #6. 30 Discuss saw and hand wench / wench has hydraulic hose connected to it / agrees that only the left two controls are used to do boom work. 4 31 (This discussion involves re-enactment.] Billingsley/Snow/Meredith were there. They asked him where "RD's" were & he said sitting on top of rail. Each time they tried to reenact, slack was put in the line. Then he shifted lever to move boom back to the right & one of the times it snatched a piece of rail. 32 on day after accident, each time "RD's" were sitting on rail, he had clear view of them / the boom was not in the way of his view / he was seated in regular position. 33 He says that the piece of rail was closest to the canal side or the side where the rails were on the ground / claims that the just landed rail, which struck v, was towards the edge of the cart closest to 7r. 34 Says that the cart is about 6-8 feet wide. 34/3-6 Was following all NS rules regarding hand signals when accident occurred. 34/7-11 Agrees that rules require person giving hand signals to be in visual communication with operator. 34/12-15 Agrees that "GM" and "FE" were in visual line of sight with operator. 35 Says v was about the middle of the cart. 35/7-10 Insists that v took rail / put "RD's" off before walking away. 35/14-18 Says v never steadied rail as it was getting landed on end closest to operator. 35/19 So "GM" and "FE" were only steadying rail. 35/22 Denies that earlier in the day anyone had been on the side closest to the operator. 36 Reason: the side toward the cab is a pinch point. Says the pinch point is 5 shown in photo 92. 37 The pinch point describing is not between two rails, but between the machine and the "RC" for the body to be pinched. 37/8 Says the far end isn't the same problems because you're "away from the machine". 37/19-24 If he's guiding rail and there's a certain jerk or anything, you don't want to be caught towards cab of the operating side of "RC". 39/23 Insists there are no pinch points on the far side from the operator cab and you don't want to get... 40 in between machine and the rail. 40/10 n did not attach the "RD's" each time rail was lifted / they took turns. 40/14-20 There was always only one person at one end of the rail / there were never persons on both sides of the rail. 41/2-5 No one used any device to steady the rail (I guess it's a choker]. 41/6-19 Every time each piece of rail was landed on the cart - and was stable - there was always a hand signal every time before the boom was ever lifted. 41/22 He always got a signal & it was clear before he made his move to swing. 42 There was no specific instructions or job briefing from "FE" about who would give hand signals. 42/12 He does admit that different people gave signals on different occasions. 43/1-5 Says that the person that engaged the "RD's" on the ground was the person that was giving the signals every time. 43/6-10 Everytime rail was lowered to cart & steady, designated signal giver had to touch the "RD's" to remove them. 6 43/11-24 "RD's" are suppose to open automatically & sometimes they do, but sometimes lift catches on the rail & sometimes one jaw is between two rails. 43/21 Disagrees it's a pinch point to put hand in between two rails / says your hands are above the rail level. 44/1-6 once rail is landed, won't move until signal is received / also, won't put slack in cable until signal received. 44/10-12 Amends that answer: once the rail is stable on the cart, he automatically lets the slack out. 44/13-15 Agrees that you do not need a signal to do that because he can see it himself. 44/16-23 If "RD's" are still on rail, or if lift is caught, worker will reach over, pull "RD's" off, give signal that it's clear to make a swing, but on certain occasions "RD's" do open by themselves. 44/24 If "RD's" open by themselves, a man didn't need to move "RD'sfi. 45 He says "depends". 45/19-22 "If it opened up nice & fell off to the side, were there occasions where a man didn't go in and touch the cable or the "P,D'sll.?Il / Answer: yes. 45/23 If they didn't touch it & didn't need to touch it, did they give you a signal that you had to lift or did you know you could lift? 46 [Key portion here] Q: I mean, well, I guess you didn't have to put slack in the cable, did you, if it fell off to the side? / A: No, I didn't have to, if it fell off to the side, didn't have to put slack in it. / Q: You just lift up and then over? / A: yes. (with a signal] I would lift up and they would give me a sign to swing & I'll swing the boom / Q: 7 Did you need a signal in order just to lift up though? 47 says v gave him signal to move in seconds before accident / demonstrates by finger pointing and motioning left to right / this was signal to swing boom to right. 48 Insists n wasn't facing him when gave that signal, was facing the rail on cart. 49/12 From time v gave signal, didn't need to raise cable, just swung the boom, without lifting the cable or wench / "RD's" were on top of rail and he could visually see them. 49/20 Was not aware of any safety practice suggesting a hoist should clear any material or load before swinging the hoist until after accident. 50 Received letter from Snow. 50/15-24 Letter said when using any lifting device and making a swing move, be sure that "RD's" are clear of rail before making any swing moves and wench up first. 51 Didn't know that before day of accident doesn't think closeness of levers is a problem. 52 Agrees that needs to be in visual communication w/person giving signals & there is one designated person to do that / when D/A - never swung boom unless had hand signal every time / disagrees with v that g was steadying on close end to operator / disagrees about v touching the "P,D I sit. 53 Learned after accident there was an adjustment that could be made on hydraulic cylinders. 54 Learned from Mengerink [machine supervisor from Charlottesville] / can slow down movement of boom. 55 Is sure person who trained him didn't know about it [RNS to check on this] 8 Admits that you can operate it better if you about it. 56 If machine boom will move laterally slower, would give more warning if rail inadvertently catches on "RD's" / agrees "RC" can be a dangerous machine depending upon operator. 57 Then agrees that it is a dangerous inachine / saw Snow's letter & read it letter wasn't posted / was not charged with a rule violation. 59 Played high school & college, full back & line backer / did track also / has played baseball or softball outside of school organized play / asked if was left- handed, he responded "yes, even handed" writes with left hand, throws ball with right, eats and uses utensils with left can operate controls with left hand. TAMff F:XTANWXKPOS@.NIC 9