ORIGINAL UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT HUNTINGTON ROCKFORD G. LOONEY, Plaintif f , V. CIVIL ACTION NO. 3:93-0145 NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. DEPOSITION OF DAVID M. GIBSON on the 25th day of June 1993, beginning at 10:00 a.m., in the law offices of Huddleston, Bolen, Beatty, Porter & Copen, located at 611 Third Avenue, Huntington, West Virginia, before me, Brenda K. Harvey, a Stenotype Reporter in and for Cabell County, West Virginia, appeared DAVID M. GIBSON, Witness, who, being by me first duly sworn, gave his oral deposition in the causes pursuant to notice of Counsel for the respective parties as hereinafter set forth. Said deposition is being taken for the purpose of discovery and/or all such other purposes a5 permitted by the Federal RuleB Of CiVil Procedure. ACCURATE REPORTING SERVICE, INC. 526 SEVENTH STREET HUNTINGTON, WEST VIRGINIA 25701 (606) 329-2154 * (304) 522-9637 * (304) 345-9891 2 APPEARANCES: 0-n behalf of the Plaintiff: . P. ., ESQUIRE . & ., P.C. 1294 Diamond SpringS Road Post Office Box 5369 Virginia Beach, Virginia 23455 On behalf of the Defendant: ANGELA KONRAD, ESQUIRE Huddleston, Bolen, Beatty, Porter & Copen 611 Third Avenue Huntington, West Virginia 25701 I N D E X EXAMINATION OF THE WITNESS: David M. Gibson Examination by Mr. . Page 3 EXHIBITS: Exhibit No. 1: Sketch drawn by witness Page 36 Exhibit Nos. 2-9: *Eight photographs Page 40 *Retained by Mr. . Reporter's Certificate - Page 53 Errata Sheet - None Signature Page - Waived ACCURATE REPORTING SERVICE, INC. 3 1 DAVID M. GIBSON, called as a witness in 2 the aforementioned action, was sworn according to 3 law, was examined, and testified as follows: 4 EXAMINATION 5 BY MR. .: 6 Q Good morning, Mr. Gibson. My name is 7 . ., and I represent Rockford Looney 8 here. 9 Could you please for the record Btate 10 your full name and your home address. 11 A David Michael Gibson, 316th Fourth 12 Street, South Williamson. 13 Q And what is the zip code there? 14 A Oh, it's on the Kentucky side, and I'm 15 not sure. 16 Q How about your phone number? 17 A 237-5652. 18 Q Which area code is that in? 19 A 6 0 6 . 20 Q And you work for Norfolk and WeBtern? 21 A Uh-huh. 22 9 How long have you worked for the 23 railroad? 24 A About 19 years. ACCURATE REPORTING SERVICE, INC. 4 1 Q Can you briefly give me your job history 2 with the railroad? 3 A Just trackman, laborer. 4 Q Have you always worked in the Williamson 5 area? 6 A Uh-huh. 7 Q You have to answer yes or no for the 8 court reporter. 9 A Yes. 10 Q It's one of those technicalities we have 11 to observe. 12 MS. KONRAD: She doesn't take it down 13 with nods and things like that. 14 Q (By Mr. .) What kind of driver's 15 license do you have? 16 A JUBT a regular driver's license. 17 Q You don't have any special license for 18 operating a truck or anything like that. 19 A No, I do not. 20 Q Do you have any restrictions on your 21 license? 22 A No, sir. 23 Q Back in December or November of '91, 24 were you working as a trackman back then, as ACCURATE REPORTING SERVICE, INC. 5 I well? 2 A Yes, I was. 3 Q What kind of work do you do as a 4 trackman? 5 A Just general maintenance. 6 Q Do you ever have occasion to operate a 7 boom truck? 8 A I have, yes, on occasions. 9 Q How frequently would you do that? 10 A Once a week, once every two weeks, just 11 any time it calls. 12 Q If a boom truck is going to be operating 13 on the job that you're working, would you be the 14 person that would usually use the truck? 15 A Not necessarily. 16 Q Who else on -- that works with you would 17 do that? 18 A Just anybody who wants to do it. 19 Q Does the foreman assign you that job, or 20 do you just volunteer for it? 21 A Just like hands-on experience, just if 22 you want to do it, do it. 23 Q Tell me about -- do you remember the 24 first time you used the boom truck? ACCURATE REPORTING SERVICE, INC. 6 1 A No, I do not. 2 Q Do you have a formal gang that you're 3 assigned to? 4 A Yes, I do. Williamson, Williamson yard. 5 Q Who do you work with, generally, on that 6 gang? 7 A I work with four or five different guys. 8 Q What are their names? 9 A Ed Mahon, Richard Blackburn, Terry Paul 10 May. That's about it right now. 11 Q HOW dbout back in November of '91? Who 12 were you working with? 13 A Those same guys. 14 Q Ed, Richard, and Terry? 15 A Ed, Richard, and Terry. 16 Q Who was your foreman? 17 A Ed Mahon. 18 Q Was there an assistant foreman? 19 A Gary Blackburn. 20 Q Gary? 21 A Gary. 22 Q Blackburn? 23 A Uh-huh. 24 Q Is he different from Richard? ACCURATE REPORTING SERVICE, INC. 7 1 A Yeah. 2 Q Same last name. 3 A Same last name. 4 Q Are they related? 5 A Not that I know of. 6 Q So, there were five of you on the gang 7 back then? 8 A As far as I can remember. 9 Q Now, do you know Rockford Looney? 10 A Oh, yeah, I know Red. 11 Q How long have you known Red? 12 A Ever since I worked on the railroad. 13 Q Just so we're clear, "Red" is Rockford 14 Looney's nickname, right? 15 A Yeah. 16 Q How did you happen to meet him? 17 A Just working together. 18 Q Would you work together frequently? 19 A Occasionally. 20 Q A couple times a year or -- 21 A (Interposing) Oh, no. More than that. 22 Q Why would you all have occasion to work 23 together? 24 A They would just put us together when ACCURATE REPORTING SERVICE, INC. 8 1 they had big jobs to do. 2 Q Now, as far as learning the job of a 3 trackman, do you go to any kind of trackman 4 school or anything like that? 5 A No, sir, I haven't. 6 Q It's just all on-the-job training? 7 A Yes, sir. 8 Q Do they give you any books or manuals to 9 go along with that? 10 A No. 11 Q Now, when you're working on the 12 Williamson gang, do you have a boom truck that 13 you uBe there occasionally? 14 A Yes, we do. 15 Q What kind of truck is that? 16 A Just a big boom truck. 17 Q Who makes it? Is it Chevy or Ford? 18 A I really don't know. 19 Q How long have you been using that 20 particular truck? 21 A Our truck? 22 Q Yes. 23 A They got it in, like, 1987, '88. 24 Q And have you also used the boom truck on ACCURATE REPORTING SERVICE, INC. 9 I Mr. Looney's gang? 2 A A few times. 3 Q When was the first time you used it? 4 A I don't remember. 5 Q Do you know what kind of truck it is? 6 A No, I don't. 7 Q Now, when you worked with Mr. Looney on 8 the day of his accident, can you tell me where 9 you reported that day? 10 A To Williamson. 11 Q And was Mr. Mahon there, your foreman? 12 A Yeah. 13 Q Did he tell you all you were going to go 14 work over with Mr. Looney's gang? 15 A I guess. 16 Q Do you have any memory of it? 17 A No, I don't. is Q Where were you all working that day? 19 A Up at Eastern Coal Company. 20 Q Where is that located? 21 A It's on Pond Creek. 22 9 Is that in Kentucky? 23 A Yes, it is. 24 Q What were you all doing there? ACCURATE REPORTING SERVICE, INC. I 0 1 A Putting in head-block ties, and that's 2 about all I remember. 3 Q Had you driven the truck out there? 4 A No. 5 Q Which truck was being used that day, the 6 one from your gang or the one from Mr. Looney's 7 gang? Do you remember? 8 A We were up to Matewan. 9 Q Mr. Looney is on the Matewan gang, 10 right? 11 A Uh-huh. 12 Q You have to answer yes or no. 13 A I'm sorry. 14 Q That's a yes, right? 15 A Yes. 16 Q Now, what job were you doing that 17 morning, as far as going ahead and working at 18 Eastern Coal? 19 A What was my job? 20 Q Right. 21 A Just general maintenance to the track. 22 Q But specifically, that day, what were 23 you doing? 24 A We were helping install head-block ties ACCURATE REPORTING SERVICE, INC. I and a switch stand. 2 Q And in doing that, in putting in the 3 switch stand, what were you doing? Were you 4 doing any particular job there? Were you using 5 the boom truck? were you working on the track? 6 What were you doing? 7 A Well, I was working on the track, but I 8 did use the boom, too. 9 Q When you were working on the track, what 10 were you doing? 11 A Pulling spikes and driving spikes and -- 12 Q So, a bit of everything on the track you 13 were doing. 14 A Yeah. 15 Q Had anyone else used the boom truck 16 before you that day? 17 A I can't recall. 18 Q Do you recall if you had ever used the 19 Matewan gang boom truck before the date of 20 Mr. Looney's accident? 21 A I had occasionally. 22 Q And you're positive of that. 23 A Yeah. 24 Q Had you ever had any problems with it? ACCURATE REPORTING SERVICE, INC. 1 2 I A Huh-uh, no. 2 Q Had anyone ever told you that the truck 3 had a tendency to have the boom stick or release 4 suddenly and keep on going? 5 A Yeah. I've heard talk of that, yeah. 6 Q Had you heard it before Mr. Looney's 7 accident? 8 A Yes, I have. 9 Q What have you heard? 10 A Just that it had stuck. 11 Q Who told you that? 12 A I can't recall. 13 Q Was it the kind of thing that was just 14 general knowledge, everybody knew the boOM 5tuck 15 on this particular truck? 16 A I assume that. 17 Q And did you assume that because 18 everybody talked about it? 19 A I just heard talk, yeah. 20 Q Did that concern you at all that the 21 boom might stick? 22 A Oh, yeah, that concerns. 23 Q Did Mr. Mahon know about that, too? 24 A I couldn't say. ACCURATE REPORTING SERVICE, INC. 1 3 I Q Did any of you bring it to the attention 2 of a supervisor that the boom might stick? 3 A I couldn't say that, either. I don't 4 know. 5 Q But it was general knowledge that it did 6 have a tendency to do that. 7 A Uh-huh. 8 MS. KONRAD: General knowledge among 9 whom? 10 Q (By Mr. .) General knowledge on 11 your gang that it had a tendency to stick. 12 A Yes. 13 Q Before you used the truck that day -- 14 or the boom on the truck, did you make any 15 inspection of the boom? 16 A No, I didn't. 17 Q Do you recall looking at any of the 18 inspection stickers on the truck? 19 A No, sir. 20 Q Were there any instruction manuals 21 concerning the use of the boom on the truck? 22 A There's stickers on the sides of the 23 truck. 24 Q And what do those stickers say? ACCURATE REPORTING SERVICE, INC. 1 4 1 A It shows you how to operate, what lever 2 does what. 3 Q And were those stickers still on this 4 particular truck? 5 A Yes, I think they was. 6 Q Do you remember that specifically? 7 A No, I don't remember specifically. 8 Q But there should be some stickers on the 9 side there showing you how to use -- 10 MS. KONRAD: (Interposing) object to 11 the form. 12 Q (By Mr. .) (Continuing) -- the 13 levers; shouldn't there? 14 MS. KONRAD: Go ahead. 15 MR. .: Let me restate the 16 question again. 17 Q (By Mr. .) There should be some 18 stickers on the side showing how to use the boom; 19 shouldn't there? 20 A Uh-huh, yes, there should be. 21 Q Are there stickers or posters on the 22 side of the truck that you use on the WilliaMBon 23 gang showing you how to use the boom? 24 A Yes, there are. ACCURATE REPORTING SERVICE, INC. 1 5 1 Q What do they look like? 2 A I couldn't tell you. I couldn't 3 describe them. 4 Q Where are they located? 5 A On the sides. 6 Q When you say "on the sides," can you be 7 more specific than that? Are they right above 8 the levers that are used to control the boom? 9 A I'm not sure. 10 Q Have you ever looked at those stickers? 11 A I can't say that I have. 12 Q When you were operating the boom truck 13 on the date of Mr. Looney's accident, was anyone 14 assigned to help you direct the boom? 15 A Well, what do you mean? 16 Q Was anyone helping you use the boom? 17 A No. I was operating the boom myself. 18 Q Was anyone giving you any directions as 19 to where to move the boom and its load? 20 A I had, yes, another person, yeah. 21 Q Who was that? 22 A Richard Stafford. 23 Q And what was he doing? 24 A He was getting ready to chain our load. ACCURATE REPORTING SERVICE, INC. 1 6 1 Q When the boom is being transported, how 2 is it secured on the truck? 3 A It just comes out of a rack and just 4 moves around. 5 Q So, when it's being transported, it's in 6 a rack? 7 A When you're on the highway, yeah, it 8 sits in a rack. 9 Q Is that how it was when you first 10 started to operate that day? Was it in the rack? 11 A I can't remember if it was in the rack 12 or not. 13 Q Who else in the gang that day operated 14 it before you operated it? 15 A I don't know. 16 Q Are you familiar with the safety 17 committees they have on the railroad? 18 A Sure. 19 Q Do you ever go to any of the meetingb? 20 A Lots of them. 21 Q Do you know anyone on the Bafety 22 committees? 23 A There's a lot of people on the 24 committee. ACCURATE REPORTING SERVICE, INC. 1 7 1 Q How about back in '91? Did you know 2 anybody on the committees? 3 A I'm associated with the whole railroad, 4 different departments. There's a lot of 5 different people on the committees. 6 Q And you knew several of them on the 7 safety committee? 8 A Oh, sure. 9 Q Are you aware of any differences between 10 the boom truck that you use on the Williamson 11 gang and the boom truck that is on the Matewan 12 gang? 13 A No, I'm not. 14 Q So, aB I understand it from what you 15 just told me, the boom trucks function in an 16 identical manner when you use the boom. 17 A Yeah, the same way. 18 Q Do they have the same number of levers, 19 and they work the same way? 20 A Uh-huh. 21 Q Yes or no? 22 A I just said that. 23 MR. .: Off the record. 24 (An off-the-record discussion was had.) ACCURATE REPORTING SERVICE, INC. 1 8 1 Q (By Mr. .) Who was in charge of the 2 job that day? 3 A I can't recall. 4 Q Was Mr. Mahon around? 5 A I don't know if he was there or not. 6 Q Who else do you remember being present 7 other than, obviously, Mr. Looney, Mr. Stafford, 8 and yourself? 9 A Mr. Blackburn, Richard Blackburn; 10 Randall Cisco; I think Dale Smith was there. 11 Q Do you remember Mr. Birkelbach being 12 there? 13 A Yeah, he was up there, I think. 14 Q What about Mr. Gearhart? 15 A Yes, he was. 16 Q When you went to use the boom truck that 17 day, what was the first thing you did? 18 A I directed it around to where the load 19 was at. 20 Q Where had it been? 21 A Excuse me? 22 Q Where was it positioned? 23 MS. KONRAD: Where had it been? 24 Q (By Mr. .) Where was the boom truck ACCURATE REPORTING SERVICE, INC. 1 9 I positioned when you went to use it, before you 2 moved it around to where the load was? 3 A I don't remember. 4 Q Where was the truck, itself, parked? 5 A It was parked away from my work a little 6 bit. 7 Q How far away from your work? 8 A I don't know. 9 Q Now, when you say "your work," are you 10 talking about the track work? 11 A Yes, I am. 12 Q It was parked a short distance from the 13 tracks themselves? 14 A That day it was. 15 Q And a short distance to you, is that 16 less than 10 feet or less than 20 feet? 17 A I'm not sure how far it was from where 18 our work was at. 19 Q But as much as 100 feet? 20 A Oh, no. 21 Q Was it less than 50 feet? 22 A Probably. 23 Q Less than 20 feet? 24 A Maybe. ACCURATE REPORTING SERVICE, INC. 2 0 1 Q You're just not sure. 2 A I don't know. 3 Q Why would you have the boom truck there 4 close to the tracks? 5 A Because you need it, and you have to 6 pick things up with it. 7 Q How far will the boom reach when it's 8 fully extended? 9 A I don't know. 10 Q You have no idea? 11 A Huh-uh. 12 Q What were you picking up when you moved 13 it around? 14 A A switch stand. 15 Q And why would you be picking the switch 16 stand up? 17 A To take to put it down on the ties. 18 Q So, you had to be within reach of the 19 track in order to put the switch stand on the 20 ties, right? 21 A Yeah, I guess, but I don't know. 22 Sometimes you pick a load up with the boom, you 23 might have to move the truck a little bit 24 sometimes; so, I don't know. ACCURATE REPORTING SERVICE, INC. 2 1 1 Q When you moved the boom around, were the 2 feet down on the boom truck that hold it in 3 place? Do you call them feet? We'll start 4 there. Do you call the feet that you put down 5 what do you call them? 6 A I call them -- let's see, I don't know 7 what you'd call them. There's a name for them, 8 but I don't know what it is. Legs, legs -- 9 MS. KONRAD: (Interposing) Jacks? 10 Do you call them jacks? 11 Q (By Mr. .) We'll use legs, since 12 that's your term. Were the legs down when you 13 went to use it that day? 14 A I can't recall. 15 Q Do you customarily put the legs down 16 when you go to move a load? 17 A Sometimes I do; sometimes I don't. 18 Q Why would you put them down? 19 A To support the load, I guess. I'm not 2 0 sure. 21 Q And you don't recall whether you put the 22 legs down or not. 23 A I don't recall. 24 Q Do you recall what time the accident ACCURATE REPORTING SERVICE, INC. 2 2 1 happened? 2 A No, I don't. 3 Q Would you agree that it was in the 4 afternoon? 5 A I think -- I'm sure it was. 6 Q It was after lunch? 7 A I assume it was. 8 Q Now, when you moved the boom around to 9 the switch stand, where was the 5witch stand 10 located? 11 A It was across from the truck. 12 Q Was it all the way across the track or 13 on the other side of the truck? 14 A It was on the other side of the truck. 15 Q Was the truck parked parallel to the 16 tracks? 17 A Yeah. 18 Q So, if we're looking at the back of the 19 truck, the switch stand would have been to the 20 left of the truck? 21 A Yeah. 22 Q And the tracks would have been on the 23 right of the truck. 24 A Yeah. ACCURATE REPORTING SERVICE, INC. 2 3 I Q And where were you standing when you 2 were doing this? 3 A I was standing on the left-hand side of 4 the truck (Indicating). 5 Q Looking at the back of the truck, you 6 were standing up on the left-hand side? 7 A I was standing on the left-hand side 8 where you operate the truck from. 9 Q And that's at the back of the truck? 10 A Or either side, you can operate either 11 side. 12 Q Where was Mr. Stafford? 13 A Straight across from me (Indicating). 14 Q When you say "straight across from me," 15 is that straight across the truck? 16 A Straight acroBB to where the load was 1 7 at. 18 Q He was standing over by the switch 19 stand. Did he tell you to move the boom around? 20 A No. 21 Q You just did that on your own. 22 A Yeah. 23 Q Had any supervisor told you, "Go ahead 24 and get the switch stand on the tracks now"? ACCURATE REPORTING SERVICE, INC. 2 4 1 A No. 2 Q Was any supervisor or foreman observing 3 you as you moved the boom around? 4 A I couldn't say. 5 Q Before you moved the boom around, did 6 you give any kind of warning signal? 7 A No, I didn't. 8 Q When you moved the boom around to where 9 the switch stand was located, what was attached 10 to the boom itself? 11 A Just a pair of rail dogs. 12 Q Who would put the rail dogb on the boom? 13 A I don't know. 14 Q Now, when you moved the boom around to 15 where the switch stand was, was the boom all the 16 way over to the left as far as it could go? 17 A What do you mean? 18 Q Had you moved the boom all the way over 19 to the left side of the truck where you were 20 standing as far as the boom would go, or could 21 you have moved it further in that direction? 22 A It could have went a little farther but 23 not much farther. 24 Q If I understand it correctly, when you ACCURATE REPORTING SERVICE, INC. 2 5 1 move the boom around, it won't go any further 2 than the -- than parallel with the back of the 3 truck; is that correct? 4 A I guess that's the way it is. I -- 5 Q (Interposing) Well, for instance, could 6 you swing the boom around all the way around to 7 the driver side door of the truck? 8 A To the driver's side? 9 Q Door of the truck. Would it rotate that 10 far around? 11 A It would rotate around to the passenger 12 side. 13 Q But it wouldn't rotate all the way 14 around to the driver's side door; would it? 15 A No, not the driver's side. 16 Q How far around would it go on the 17 driver's side? 18 A I don't know. 19 Q Do you use this boom ever? 20 A Excuse me? 21 Q Have you ever used this boom recently? 22 A I ju5t use it on occasion. I use 23 Williamson's truck. 24 Q How about the Williamson truck? You say ACCURATE REPORTING SERVICE, INC. 2 6 I it's no different. How far around will that boom 2 go? 3 A It's the same thing. 4 Q You just don't know how far it will go 5 or how far it reaches -- 6 A (Interposing) Huh-uh. 7 Q (Continuing) -- and you don't know too 8 much about the use of it; is that correct? 9 MS. KONRAD: I object to the form. 10 Q (By Mr. .) You don't know too much 11 about the use of this boom; do you? 12 A I know how to operate it. The boom sits 13 in a rack on the right-hand side, the passenger 14 side. It comes up; it comes around. It won't 15 go -- you can't pick it up and turn it right. 16 You have to pick it up and turn it left. 17 Q That was my question. I guess we're 18 just not having much success communicating here. 19 So, it won't go all the way around to the 20 driver's side door when you move it that way. 21 That's what you just told me, right? 22 A You pick the boom up out of the rack 23 like this, and it comes around left (Indicating). 24 It can go around to on the passenger side. But ACCURATE REPORTING SERVICE, INC. 2 7 1 you can't pick the boom up out of the rack and 2 take it over to the -- you can take it on this 3 side and drop it down, but you can't -- it 4 doesn't go that way. It goes around this way 5 (Indicating). 6 Q Will the boom make a 360 degree -- 7 A (Interposing) No. 8 Q (Continuing) -- revolution around the 9 truck? 10 A No. 11 Q How far around will it go? Will it make 12 just a semicircle, or will it go further than a 13 semicircle? 14 A Maybe a semicircle. 15 Q Did you have a horn on the truck that 16 day? 17 A Have what? 18 Q Have a horn? 19 A I'm sure it does have a horn on the 20 truck. 21 Q Did you have a whibtle or anything like 22 that or a horn on you? 23 A No, I didn't. 24 Q After you swung the boom around to where ACCURATE REPORTING SERVICE, INC. 2 8 1 the switch stand was, what happened then? 2 A I had run the boom a little too far past 3 the load. 4 Q Did Mr. Stafford tell you to stop? 5 A No. I stopped it. 6 Q What was Mr. Stafford doing while you 7 were moving it around? 8 A He was standing there. He was going to 9 hook the load for me. 10 Q Was he giving you any kind of hand 11 signals? 12 A No. 13 Q Did you know where Mr. Looney was at 14 this time? 15 A I didn't happen to know where he was. 16 Q After you moved it a little bit too far 17 past the load, did you stop the boom? 18 A Yeah. 19 Q And did Mr. Stafford say anything at 20 that point? 21 A No. 22 Q Did you say anything to him? 23 A No, I didn't. 24 Q Was the boom up high or down low? Can ACCURATE REPORTING SERVICE, INC. 2 9 I you describe the position of it for me when you 2 stopped it after moving it? 3 A Like, it bends. It's like (Indicating). 4 Q You're crooking your finger as in kind 5 of a rooftop shape? 6 A Kind of. 7 Q And how far above the ground were the 8 rail dogs? 9 A I don't have any idea. 10 Q Were they as high as Mr. Stafford's 11 head? 12 A I couldn't say. 13 Q Is there any position that they're 14 BUPPOBed to be in when you move it around? 15 A No. 16 Q When you went too far and you stopped, 17 how long did you remain in that 5topped position? 19 A Not very long. 19 Q Then what did you do? 20 A I proceeded to bring it back the other 21 way. 22 And did YOU BtOp it over the load? 23 A It didn't stop. 24 Q Which lever did you push to move it back ACCURATE REPORTING SERVICE, INC. 3 0 I over the boom -- over the load, rather? 2 A Just the one that takes it back to the 3 1 e f t . 4 Q And were you just going to move it a 5 little bit? 6 A Sure. 7 Q How far did you have to move it back? 8 A I couldn't tell you. 9 Q But it wasn't very far? 10 A I wouldn't think so. 11 Q You have to tell me. I wasn't there. 12 A Well, I don't know how far it came 13 back. 14 Q But you knew you had to move it back 15 some to get it over the load. 16 A Yeah. 17 Q And when you went to engage the lever to 18 move it back that way, it started moving, did you 19 then try and stop it when it got over the load? 20 A Uh-huh. 21 Q You have to answer yes or no. 22 A Yes. 23 Q And how did you do that? 24 A With the levers on the truck. ACCURATE REPORTING SERVICE, INC. 3 1 1 Q Is it the same lever? You just pull it 2 back down? 3 A Well, there's different levers on the 4 truck. 5 Q Which lever were you using to try and 6 stop it? 7 A Well, you just let up off the lever you 8 had a hold of. 9 Q That's what I meant. When you go to 10 move it around that way, are you pulling down on 11 the lever or pushing up on the lever when you're 12 moving it? 13 A I think down, I think. 14 Q And so then, as you told me, to stop it, 15 you just let up on it a little bit. 16 A Yeah. 17 Q And when you let up on it, what 18 happened? 19 A It just kept on going. 20 Q When it kept on going, how fast was it 21 going? 22 A I don't have any idea. 23 Q Was it real slow? 24 A I couldn't -- I don't know. ACCURATE REPORTING SERVICE, INC. 3 2 1 Q You have absolutely no idea how fast it 2 was going. 3 A I don't have any idea. 4 Q When it started going, did you try and 5 stop it any other way? 6 A I didn't know it had kept going. 7 Q Did you try and shut the whole boom down 8 by taking away the hydraulic pressure? 9 A No. 10 Q Could you have done that? 11 A If I knew it was still going, I could 12 have tried to stop it. 13 Q Did you not know that it was still going 14 at the time? 15 A No, I didn't. 16 Q Were you not watching it? 17 A I wasn't watching it. 18 Q Why not? 19 A Because -- well, I'm not going to say I 20 wasn't watching it, but when I come to get the 21 load, it just kept on going. See, I was kind of 22 turned sideways operating this boom from the side 23 (Indicating). 24 Q Okay. You're indicating that you were ACCURATE REPORTING SERVICE, INC. 3 3 1 looking to your left as you were operating the 2 controls in front of you? 3 A The levers are kind of up under this 4 little thing here, and you're doing all this. My 5 partner was like that, right there. I'm looking 6 dead at you. 7 Q So that your partner was to your left. 8 A Yeah, this way. And when I went to 9 stop, it just kept on going. I assume it kept on 10 going, because when I turned around, I saw one of 11 my coworkers with Red, kind of slumped over, and 12 I went to check. 13 Q Was the boom over by Red when you looked 14 at it? 15 A Well, I don't know, because I went to 16 check on Red, and my coworker said, "You better 17 get the boom." And I turned around, and it was 18 still going. 19 Q It was still going when you turned 20 around, then, the second time. 21 A Yeah. 22 Q Let's do this. Let's see if we can 23 clarify the positions a little bit. I'm going to 24 get you to be an artist. ACCURATE REPORTING SERVICE, INC. 3 4 I A I can't draw. 2 Q I understand that. Let's just draw the 3 truck first. 4 A Oh, God. 5 Q Just use a rectangle. 6 A okay, this is the truck (Indicating). 7 Okay, it's facing this way, right? Okay, you got 8 levers on both sides, on the left-hand side and 9 right-hand side. I was on the left-hand side. 10 Q Let's put a big "T" in there so we know 11 that's the truck, just in the middle of those two 12 lines. 13 A Okay, truck. 14 Q And now where is the track? 15 A The work was over here. 16 Q Let's just draw a long line for the 17 track. 18 A (The witness complies.) 19 Q And if you can just put "work" over 20 there. 21 A (The witness complies.) 22 Q And if you could put an "XI' for where 23 you were located. 24 A (The witness complies.) ACCURATE REPORTING SERVICE, INC. 3 5 1 Q And now, Mr. Stafford you said was to 2 your left. 3 A He was over here. 4 Q Let's put an "S" by that "X". 5 A (The witness complies.) 6 Q And where was the switch stand in 7 relationship to Mr. Stafford? 8 A He was -- 9 Q (Interposing) Put a circle by it for 10 the load. 11 A Okay, the load was right here 12 (Indicating). 13 Q So, right beside Mr. Stafford. 14 A Well, he was probably standing right 15 here then, you know, in front of the load. 16 Q If you'll mark out the first "XI' you 17 made. 18 A (The witness complies.) 19 Q And where was Mr. Looney when you first 20 saw him? 21 A I didn't see him. Well, when I firbt 22 seen -- when -- after the boom stuck? 23 Q After the boom hit him. 24 A over here (Indicating). ACCURATE REPORTING SERVICE, INC. 3 6 1 Q Put an "R" by that. 2 A (The witness complies.) 3 Q And when you saw the boom and it was 4 still traveling, where was it located? 5 A Probably over here (Indicating). 6 Q If you can just put a big "B" by that. 7 A (The witness complies.) 8 Q So, it already moved past Mr. Looney. 9 You have to answer yes or no. 10 A Yes. 11 Q And when you went to stop it when you 12 saw that it was still traveling, what did you do 13 then? 14 A I come back from where Red was at and 15 my other coworker to this side of the truck 16 (indicating), the same place, and stopped the 17 boom or tried to stop it. 18 MR. .: If you can mark that as 19 Exhibit 1. 20 EXHIBIT NO. 1 21 Exhibit No. 1, a sketch drawn by the 22 witnes5, was thereupon marked for identification 23 and is attached hereto. 24 Q (By Mr. .) How did you try and stop ACCURATE REPORTING SERVICE, INC. 3 7 1 it? 2 A With just the levers on the side. 3 Q And did it stop this time? 4 A Yeah, it stopped. 5 Q After it stopped, what did you do? 6 A Checked on Red. 7 Q And how was he doing? 8 A He was a little addled. 9 Q Was he conscious? 10 A Oh, yes. 11 Q Had he been unconscious? 12 A No. 13 Q Did you UBe the boom again that day? 14 A No, I did not. 15 Q Did anybody else use it? 16 A I don't know. 17 Q Have you ever used that boom since the 18 day of that accident? 19 A No, I have not. 20 Q Do you know if they ever fixed it? 21 MS. KONRAD: Objection to the form of 22 the question. 23 Q (By Mr. .) Do you know if the 24 railroad ever fixed it? ACCURATE REPORTING SERVICE, INC. 3 8 I A Not to my knowledge. 2 Q Have you heard anybody talk about it, 3 the fact that it still sticks? 4 A On occasions. 5 Q Who has mentioned that to you? 6 A Just general talk. I don't really know 7 for sure. 8 Q So, again, it's general knowledge 9 amongst the people that you work with that this 10 boom still sticks? 11 A Yes. 12 Q Do you know of anybody who took any 13 pictures of the boom? 14 A I don't know. 15 Q Have you talked to Red since the 16 accident? 17 A Yeah. I talked to him a time or two. 18 Q Were you ever able to figure out why the 19 boom kept on moving? 20 A No, I haven't. 21 Q Have you given any statements about what 22 hdppened that day to anyone on the railroad? 23 A To -- 24 Q (Interposing) To any official on the ACCURATE REPORTING SERVICE, INC. 3 9 I railroad or any claim agent or anyone else that 2 works with the railroad? 3 A Yeah. I've talked to this nice lady. 4 Q You talked to Ms. Konrad. 5 MS. KONRAD: Let the record reflect 6 I'm the nice lady. 7 Q (By Mr. .) Who else have you given 8 statements? 9 A There was some other man there when I 10 talked to her, but I don't know who he was. 11 Q Anyone other than in the lawyer's 12 office? Did Mr. Gearhart or Mr. Birkelbach take 13 a statement from you? 14 A No. 15 Q Any claim agent take a statement from 16 you? 17 A other than that guy that was with this 18 lady. 19 Q And when was that? 20 A I don't know. 21 Q That wasn't today. 22 A No. 23 Q I'm going to show you some pictures that 24 have been given to me by the railroad, and I'll ACCURATE REPORTING SERVICE, INC. 4 0 1 ask if you can identify them. This is the first 2 one. Do you recognize that truck -- 3 A (Interposing) Yeah. 4 Q (Continuing) -- in that picture? 5 A Yeah, I do. 6 Q Is that the truck that you were using 7 that day? 8 A That the Matewan's truck. 9 MR. .: Off the record. 10 (An off-the-record discussion was had.) 11 EXHIBIT NOS. 2-9 12 Exhibit Nos. 2-9, eight photographs, 13 were thereupon marked for identification and were 14 retained by Mr. .. 15 Q (By Mr. .) So, we've got a picture 16 of the Matewan boom truck here now. What 17 position is the boom in here? That's not the 18 position in the rack; is it? 19 A No. It's just sticking -- it looks like 20 just behind the truck. 21 Q And would that be fully extended? 22 A No, because the stinger is not out. 23 Q So, it could go a little further. 24 And then, this would be a closeup of the ACCURATE REPORTING SERVICE, INC. 4 1 I front of the Matewan truck? 2 A Yes. 3 Q That's Exhibit 3. Then, this would be a 4 closeup of the rear of the Matewan truck? 5 A Uh-huh, yes, it is. 6 Q That would be Exhibit 4. Now, would 7 that be about the position that you had it in 8 when you were getting ready to pick up the switch 9 stand? 10 A No. It was probably back a little 11 further. 12 Q Back which way? 13 A This way (Indicating). 14 Q Going back towards the front of the 15 truck. 16 A Just a little bit and with a crook in 17 it. 18 Q And where would you be standing on this 19 picture, Exhibit 4? 20 A Right there. 21 Q You're indicating right beside where 22 the license plate i5 but to the side; is that 23 correct? if you want to go ahead and on the 24 picture -- ACCURATE REPORTING SERVICE, INC. 4 2 1 A (Interposing) I can't draw. Right 2 up under there is where the levers are at 3 (Indicating). 4 Q So, the levers are up underneath the 5 truck tire that's on the rear? 6 A Yeah. Right up under here 7 (Indicating). 8 Q It's around the corner from where the 9 license plate is over the truck tire; is that 10 correct? 11 A They're up under that place where I 12 Bhowed you. 13 Q That's Exhibit 4. And then, Exhibit 5, 14 this will be an even further closeup of that boom 15 area; wouldn't it? 16 A (Witness nods head up and down.) 17 Q You have to answer yes or no. 18 A Yes. I'm sorry. 19 Q No problem. Now, the picture of where 20 the truck is on Exhibit 5 and the other pictures 21 is not where -- that I've shown you so far -- is 22 not where you were working that day; is it? 23 A No, it's not. 24 Q And going back to Exhibit 4, can you see ACCURATE REPORTING SERVICE, INC. 4 3 I where the legs are on the boom truck? 2 A Yeah. one's down. 3 Q And that would be on the, as you look at 4 it, the right-hand side of the picture? 5 A The passenger side. 6 Q And you don't recall the day Mr. Looney 7 was injured whether or not the legs were down? 8 A No, I don't. 9 Q Do you recall whether or not you put 10 them down and someone else took them up? 11 A I can't remember. 12 Q This is Exhibit 6. Is that the type of 13 instruments or levers you were using that day? 14 A That's it. 15 Q That's the instrument panel. Is that 16 the one on the side of the truck that you were 17 using, or can you tell? 18 MS. KONRAD: Can you tell by that 19 picture? 20 THE WITNESS: I can't tell. 21 MR. .: I'm going to ask you not 22 to interrupt whether or not he can tell. 23 MS. KONRAD: I'm sorry. 24 MR. .: I think he has to testify ACCURATE REPORTING SERVICE, INC. 4 4 1 from his knowledge. 2 Q (By Mr. .) Is there any difference 3 between the instrument panel on the right-hand 4 side of the truck and the left-hand side of the 5 truck? 6 A They're the same. 7 Q And you can't tell from -- 8 A (Interposing) That looks like to me 9 it's on the left-hand side. 10 Q And that would have been the 5ide that 11 you were using? 12 A (Witness nods head up and down.) 13 Q You have to answer yes or no. 14 A Yes. 15 Q Now, looking at these levers, going from 16 left to right, can you tell me what each one 1 7 does? 18 A No, I can't. 19 Q Do you know what the first one does on 20 the left? 21 A I'm not sure if that was -- I'm not 22 sure. 23 Q How about the second one? 24 A I don't know. I'd have to show you. ACCURATE REPORTING SERVICE, INC. 4 5 1 Q They're the two shorter ones. Now, the 2 third one, it's a little taller that begins a 3 series of five. Can you tell what that one does? 4 A No, I can't. 5 Q How about any of the others? 6 A Probably this one right here is what 7 takes it up (Indicating). 8 Q You're pointing to the very end one on 9 the right. 10 A Yeah. 11 Q That takes the boom up? 12 A I assume that. 13 Q Do you pull it down or push it forward 14 to move it up? 15 A Push it down -- pull it down. 16 Q Pull that lever down. How about the 17 next one, the second one from the right? Do you 18 know what that one does? 19 A I can't remember. 20 Q How about the third one? 21 A I think the third one is the one that 22 make5 it BWing. 23 Q That makes the boom swing around? 24 A Swing (Indicating). ACCURATE REPORTING SERVICE, INC. 4 6 1 Q When you pull it down, which way does it 2 swing? 3 A I'm not sure. 4 Q When you push it forward, do you know 5 which way it swings then? 6 A Huh-uh. 7 Q How about the fourth lever? Do you know 8 what that does? 9 A No, I don't. 10 Q Now, down here underneath and to the 11 left of the last of the levers, there's a -- it 12 looks like a valve. Do you know what that does? 13 A No, I don't. 14 Q How about up here, right next to the 15 last of the left-hand levers, there's what 16 appears to be a button. Do you know what that 1 7 does? 18 A No, I don't. 19 Q Now, where would the stickers be that 20 tell you what to -- or how to use the levers? 21 Would they be right underneath this caution sign 22 up here at the top of the picture? Is that where 23 they're supposed to be? 24 A I couldn't tell you. ACCURATE REPORTING SERVICE, INC. 4 7 I Q Where have you seen the stickers that 2 show you how to use the boom being located? 3 A I don't really know. 4 Q Do you see any on this particular 5 picture? 6 A See any what? 7 Q Any stickers that show you how to use 8 the boom on this particular picture? 9 A I don't see any. 10 Q Now we'll look at Exhibit 7. Is that 11 an even further closeup of what we just talked 12 about, Exhibit 6? 13 A It's the same thing. 14 Q Are you aware of any way when you use 15 this boom that you can shut off the hydraulic 16 pressure to the boom? Is there any valve or 17 device that you can use to do that so that it 18 just shuts right down? 19 A Yes, there are. 20 Q How do you do that? 21 A There's like a little pull thing. 22 Q And where is that located? 23 A I don't see it on there. 24 Q Can you point it out to me on the ACCURATE REPORTING SERVICE, INC. 4 8 I picture? 2 A It's not on there. 3 Q Where is it usually located? 4 A I couldn't tell you. 5 Q Is it usually somewhere underneath the 6 levers? 7 A No. It's not underneath. It's over in 8 here somewhere (Indicating). 9 Q And you were indicating where all the 10 hoses are coming into the levers, right? 11 A See, their truck is a little different 12 than Williamson's truck. I mean, there's just 13 things you pull out. 14 Q Can you recognize what is shown in 15 Exhibit 9? 16 A Just a pair of rail dogs on the boom. 17 Q And would Exhibit 8 just be a closeup of 18 the rail dogs? 19 A Yes. 20 Q Are they the kind of rail dogs that were 21 on the boom when you were working with them on 22 the day Mr. Looney was injured? 23 A I guess so. 24 Q Are there different kinds of rail dogs? ACCURATE REPORTING SERVICE, INC. 4 9 1 A They're all about the same to me. 2 Q How heavy do rail dogs like this -- how 3 much do rail dogs like this weigh? 4 A I don't know. 5 Q Are they more than 50 pounds? 6 A No more than 50 pounds. 7 Q Can you pick them up by yourself? 8 A I can. 9 MR. .: Can I take one minute 10 with my client? 11 (Whereupon, there was a pause in the 12 proceedings.) 13 Q (By Mr. Hajak) Mr. Gibson, let's go 14 back to after you realized that Mr. Looney was 15 down and out. Did you see whether or not 16 Mr. Looney's hard hat stayed on his head? 17 A I don't know. 18 Q Now, you said that Mr. Blackburn was 19 over there with him. 20 A Uh-huh. 21 Q Did you help him go over to the tracks? 22 Mr. Looney, that is. 23 A Did I help him do what? 24 Q Take Mr. Looney over to the trackb? ACCURATE REPORTING SERVICE, INC. 5 0 1 A I can't recall if I helped him get 2 over to sit down, because Mr. Blackburn told me 3 to -- "Mossy, get the boom." 4 Q What did he tell you? 5 A He told me, "Mossy, get the boom." 6 Q Is that your nickname, "Mossy"? 7 A That's just a little -- he -- it's not 8 my nickname. He just called me that. 9 Q That's just something that he called 10 you. 11 A Yeah. 12 Q So, you went back and got the boom. 13 After you got the boom stopped, what did you do 14 then? 15 A I think I went over and checked on Red, 16 where he was sitting down. 17 Q Where was he sitting down? 18 A He was just sitting on like a little -- 19 I don't know if it was a seat or a concrete slab 20 or -- 21 Q (Interposing) Did he have his hard hat 22 with him then? 23 A I can't recall. 24 Q Did he say anything? ACCURATE REPORTING SERVICE, INC. 5 1 1 A I can't remember what he said. 2 Q You said, "He was a little addled.,, Can 3 you describe what you mean by that? 4 A I don't really know. 5 Q Did you see where he went? 6 A Did I -- 7 Q (Interposing) Mr. Looney. Did you see a where he went after you saw him on the track 9 there? Well, did he go anywhere? 10 A He went to sit down. 11 Q After he sat down, what happened to him? 12 A He sat there for awhile, and then they 13 took him to the hospital. 14 Q Do you know who took him? 15 A I guess Jess Gearhart -- not Jess, 16 whatever his name, J.D.? 17 Q Before you went to move the boom around 18 or back to the switch stand, after you had 19 already moved it the first time, did you hear 20 Mr. Looney ask Mr. Stafford for some cotter keys? 21 A No, I didn't. 22 Q And I think we've already covered this, 23 but the only training that you've had with regard 24 to the operation of the boom would be on-the-job ACCURATE REPORTING SERVICE, INC. 5 2 1 training; is that correct? 2 A Yes, it is. 3 Q Do you know a mechanic by the name of 4 Mr. Marcum? 5 A Yes, I do. 6 Q Where is he located? 7 A He works out of Williamson. 8 MR. .: We're all done. Do you 9 want him to read or sign or waive? 10 MS. KONRAD: We've waive. 11 (Whereupon, at 10:35 a.m., the 12 deposition of David M. Gibson was concluded.) 13 1 4 1 5 16 1 7 18 19 2 0 21 2 2 2 3 2 4 ACCURATE REPORTING SERVICE, INC. 5 3 STATE OF WEST VIRGINIA COUNTY OF CABELL, To-wit: I, Brenda K. Harvey, a notary public within and for the county and state aforesaid, duly commissioned and qualified, do hereby certify that the foregoing deposition of DAVID M. GIBSON was duly taken by me and before me at the time and place specified in the caption hereof, the said witness having been by me first duly sworn. I do further certify that the said deposition was correctly taken by me in stenotype notes, that the same were accurately written out in full and reduced to typewriting; and that said deposition is a true record of the testimony given by said witness. I do further certify that I am neither attorney or counsel for, not related to or employed by any of the parties to the action in which this deposition is taken, and further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto or financially interested in this action. 5 4 My commission expires December 25, 2001. Given under my hand this 14th day of July, 1993. - ---- Brenda K. Ha . Stenotype Reporter