Looney v N & W Multi-Page rm James Gear@ 9/g/93 1 Q rl,3 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT HUNTINGTON - - - - - - - - - - - - - - -x In the Matter of: ROCKFORD G. LOONEY, Plaintiff, CASE NO. Vs 3:93-0145 NORFOLK & SOUTHERN RAILWAY COMPANY, Defendant. - - - - - - - - - - - - - - -x Conference Room 203, Norfolk & Western, Division Office Bldg, 800 Princeton Avenue, Bluefield, West Virginia, Wednesday, September 8, 1993. The Deposition of JAMES D. GEARHART, taken by the Plaintiff before Glenna M. Geressy, a Stenotype Reporter and Notary Public within and for the State of West Virginia at Large, pursuant to agreement of the parties hereto, to be used for all lawful purposes, pursuant to the Federal Rules of Civil Procedure, commencing at 9:00 a.m., EDST. VOLLTME: I PAGES: I - 34 COPY DaWy R @cc@1450 Main S@-Prin@, V" 24740 YROD LAwncy v N & W Multi-Pagc James Gcuhart, 9/8/93 1 A P P E A R A N C E S Page 2 1 PROCEEDINGS Page 3 2 2 MR. .: would you please smear the 3 3 witncss? 4 4 Whereupon, 5 5 JAMES D. GEARHART 6 . P. ., FSQ.. 6 was called as a witness and, afl-r having been fint 7 . & ., P.C. 7 duly swom by the Notary Public, was examined and 8 1294 Diamond Springs Road, 8 testified as follows: 9 Virginia Beach, Virginia, 23455, 9 EXAMINATION 10 appearing on behalf of 10 BY MR. .: I I the Plaintiff. I I Q. Would you please state your full name? 12 12 A. James Douglas Gearhart. 13 13 Q. What is your home address? 14 14 A. 1425 AUtethom Sme. 15 15 Q. Is that two words? 1 6 1 6 A. One word. No "E." Bluefield, West 17 ANGELA W. KONRAD, ESQ., 1 7Virginia, 24701. 18 Huddleston, Bolen, Beatty, Porter & Copen, 18 Q. And your honie phone? 19 Sixth Avenue & Tenth SmM 19 A. 304-327-8761. 20 P.O. Box 2185 20 Q. Mr. Gearhart, I'm going to ask you some 21 HuntiTVan, West Virginia, 25722, 21 questions. If at any time you don't understand any of 22 appeanng on behalf of 22 my questions, please lct me k-now, and I'll be hap@y to 23 the Defendant. 23 rhrase it or ask it again. I assume you realize 24 24 at Irepresent Rockford Looney? 25 25 A. (Witness nods affirmatively.) Notes Pagc 4 Page 5 1 Q. And I will ask that you givc me an oral I A. I was a process cn9in= and manager of 2 response, so the court reporter can take it (lown. Is 2 roadway maintenance. 3 that okay? 3 Q. Is that still with Norfolk Southern? 4 A. YCS. 4 A. 'rbat's correct. 5 Q. Who do you work for presently? 5 Q. For the past @ and a half years as a 6 A. I'm an agent for Norfolk Sou@m 6 division engineer, what territory have you covered? 7 Corporation. 7 A. Pocahontas Division. 8 Q. Wben you say "an agcnt," is that your job 8 Q. And do you cover the enfire division? 9 title? 9 A. That's conrct. 10 A. You want my job position? I 0 Q. What kind of twngs do you do in your job as I 1 Q. You said you were an agent for Norfolk i ia division enginerr? 12 Southem. Whai do you mewi by "agent"? 12 A. I plan, organizc and suWMse maintenancc 13 A. I work for Norfolk Southem Corporation. 13 of way activities which incltides track, bridges and 14 Q. And when you say you were an agent for them, 1 4structure repair. 1 5that's not yorLLr job titlc, is it? 1 5 Q. Do you have a particular offlor you work out 16 A. No. 16 of) 17 Q 17 A. I work out of Bluefield. 18 A. 18 Q. Do you occasionally travel beyond the 19 Q r? i9 Bluefield office? 20 A. 20 A. I travel the entire division. 21 Q 2 1 Q. How often do you get out in the ficld? 22 A. 22 A. Usually, I'm only in the office about one to 23 engineer frorn 1 7 to 1 23 two days a week. The rest of the time, I'm in the 24 Q. What happencd between '83 and three and a 24 field. 25 half years ago? 25 Q. And what kinds of things are you doing when Notes Doisey Rcpo@ @ces- 1 450 Main Street-Princeton, WV 24740 Page 2 - Pagc 5 Janwa 9/g/93 multi-Page rm Looncy v N & W Page 6 Page 7 1 you gct out in the field? I Q. And after that? 2 A. High rail, gct over the track in a high-rail 2 A. Assistant to division engineer. 3 vehicle. -1 ride @s, su@se the wotk of @ nien 3 Q. And then did you beconie a division engineer? 4 m the field, g=mlly spend a lot of tinic with my 4 A. YCS. 5 first-fim supervisots, some of the tirrie with the 5 Q. Was that your -- 6 @ C*Iployea. 6 A. Initial tinic as a divisional engineer. I've 7 Q. @ did you actually start with Norfolk 7 bcen division =gincer, this wiU be the @d 8 SouthcM? 8 location. 9 A. MiLy of 1971. 9 Q' Wbcn you jo@ was that your goal, to 10 Q. Before that, what @ you doing? 10 become a division engineer? I I A. I was a student at V'uw'nia Military I I A. No. My original goal was to become a chief 12 Institute. 12 engineer. 1 3 Q. Did you get yoijr @ in engineering? 13 Q. Was that a step above division engineer? 14 A. B4chelor of Science, civil engincenng. 14 A. Yes. 15 Q. Wbat position ctid you hold i-nitially @th 15 Q. I'll put that down here as your next 16 Norfolk Southeim? 16 position. What does the chief engineer do? 1 7 A. I was a firenuui, road fir==. 17 A. Wcll, at the timc I wanted that, mX goal, he 18 Q. And how long wem you a fu=an? 18 was the top engineering officer on the railroad. 19 A. F@ months. 19 Q. Is thcm still such a position? 20 Q. T*n what positi.on did you hold? 20 A. Yes. But it's a regibnal position now. 21 A. MM t trainec 2 1Tb= are about five chief engineers now, w@as at 22 Q. And how long wem you a trainee? 22 that time there was only one. 23 A. Ose year. 23 Q. And who is your immediate suNMsor, a 24 Q. Aad fl= what position did you go into? 24 chicf enginecr? 25 A. Assistant track supervisor. 25 A. Yes. Notes Page 8 Page 9 1 Q. Asd who would that be? I A. Mr. Looncy was not working for most of that 2 A. G*ry Woods. 2 period of time. 3 Q. @ is he located? 3 Q. So I gather you didn't have any problenis 4 A. Alanta. 4 with him? 5 Q. Ds you personally lmow Rockford Looney? 5 A. No. He wasn't working. He was off foT 6 A. YOS. 6 health reasons. 7 Q. How did you wm to know him? 7 Q. Now, I understand that you wcm prescnt at 8 A. He was one of niy employees. I had had 8 the time of his accident. Is that correct? 9 OCcasion to speak wilh'him ind observe his activifies. 9 A. I was in the area. That's correct. 10 Q. How many =nployccs uc in your division? 10 Q And what was your mission in the area that I I A. At this tinc, about 335. i iday? 1 2 Q. Asd is it because you are out in the field 12 A. Well, they were perfonning some track work 13 rtc bD ortog:r your front-litie Su 13 at the coal operation in Stone, Kentucky, and I went at Y:u ;;to lot workers@SOr' 14 of your 14 up to ob@ the activity and also to speak with one 15 A. Yes. 15 of my foreman about a possible su@sor position. 16 Q Do you think you probably know most of them 16 Q. @ch foreman was that? 17 at least by face if not by nanie? 17 A. Steve White. 18 A. Ygs. 18 Q 19 Q. How long have you known Mr. Looney? 19 A. 20 A. I Om to the Pocahontas division in I @90. 20 Q or 21 1 bMU3t awue of hM @ that tm. 2 ihad yi 22 Q. Is bctween the tinic that you carrie to thr 22 A. 23 Pocahontas division in 1990 and Mr. Looriey's accident 23 Q. 24 on No 15, 1991, did you ever have any ptoblems 24 here? 25 with him? 125 A. No. He was with me. I believe we were in Notes Page 6 - Prge 9 Daisey Rzprting SoMcet-1450 Mlain S@-Prinwwn, WV 24740 Looncy v N & W muiti-pagc@ James Gearhart, 9/8/93 1 my company vehicle. Page I 0i where the boom truck was. Page I 1 2 Q. Now, you rncntioned that you were at the 2 A. Say tWs is dc boom truck. 3 Stone -- or you wem in Stone, Kentucky? 3 Q. Put a big "B" in there. 4 A. That's where the work was being perfonned. 4 A. And the work area was right on the track 5 Q And what kind of work was beifii done ftm? 5 adjacent to the boom truck. I was up in this area 6 A. Best I @ber, they were changing a stock 6 (in'dicating). I'm the stickinan right'here. 7 rail switch point. 7 Q. Put a "G" underneath that. 8 Q. At the @ that Mr. Looney was injured, 8 A. Here's dw load point. 9 what were you doing? 9 Q Could you put a "G" undemeath your 10 A. I w@ t&Wng @o Steve White. lo stickman? I I Q And where were you in relation to N4r. I I A. And Mr. White was standing ovcr, I think, 1 2Looney, if you can describe the general area for me in 1 2somewhere in here, because I know I was faring up. We 13 those tenns? 1 3were looking at the tracks that go through the 14 A. I was probably about 50 fcet away from him. 14 load-out. 15 1 was over -- we were working in the location of the 1 5 Q. You indicate that you wem facing away from 16 mine tipple or the load-out, and I was closer to the 16 Mr. Looney. 17 load-out than he was. He was down at one of dc load 17 A. Yeah. They had a place herr where the i8 track @tches. 1 8miners sit, the guys that work the tipple. I was over 19 Q. Were you on the same side of the track as ig in the area. There's several tracks here. I can't 20 Mr. Loorwy, or on the other side of the track? 20 remember if @ was th= or four. White was 21 A. Well, there we= multiple tracks at that 21 probably over this way, and I think Birkelbach was 22 location, so I'm not sure if I can say. 22 ovcr here. 23 Q. Maybe I r-an get you to draw that; that niight 23 Q. You can in(licate a "W" for @te and "B" for 24 be the easiest way. If you can just put the tracks in 24 Birkelbach. 25 ftM, wh= Mr. Looney was, and w@ you werc and 125 A. And the way I understand, Looney was making Notes Page 12 Page 13 i a pass through h= this way and maybe some cottrr I Q. Now, how did you first awarc of the 2 pins and the @ mwk was over hem. (Inciicating) 2 injury? Was @ a yell or what happened? 3 When @showtd me w@ he had bccn -- 3 A. No. The n= walked him ov&.- He camt over 4 when I first saw Looriey' and they brought him over, lr 4 to us and said that he had been hit on the head. 5 said, "I'm okay. I'm all rigk" and I suggested that 5 Q. So until they walked over and said ftn was 6 he sit down. 6 an lnjury, YOU WC='t awarc that anytwng had 7 He sat &wn at the time, so I didn't 7 happewd? 8 wwally see w@ he was at the tim, but kc looked 8 A. No. 9 alert to nic, didn't soon to have any problems, and at 9 Q. And at that tfim, if I undentand you io the tinie, he said, "I will be all right. Don't worry 10 correctly, he said he was okay. i iabout it." I I A. Uh-huh. 12 Q. Now, you indicatcd dmt it's about 50 feet 12 Q. Those were his exact words or the gist? 13 from whm you were from the boom truck. 1 3 A. Well, that was the pist. 14 A. So iLe that. I didn't measure it 14 Q. Did he sit down f@r a while? 15 off. I d actly. 15 A. Yes. 16 Q I would like to mark this as an exhibit when 16 Q. And did he do that? 17 we get a break. 17 A. Yes. 18 Before Mr. Looncy was injured, had you 18 Q. How long was he seated? ig observed him at work? 19 A. I would say about ten niinutes. 20 Ms. KONRAD: on that day? 20 Q. Then what happewd? 21 BY M. .: 2 1 A. Well, he said lie was getting a headache so 22 Q. Yes. 22 we, Mike Birkelbach and 1, talked with him and decided 23 A. He was in the group, so I didn't pick him 23 that we would @ him down to the cniergency room just 24 out of the group, but he was working with @ men in 24 to make sure everything was all right. He went witil 25 that area. 125 us and got in the compiny vehicle,- and we took him to Notes *** Reportimg Services-1450 Main SMe-Prin@, WN 24740 Page 10 - Page 13 Janws Gewhort, 9/&V3 Multi-Pagc TM Looney v N & W i die hospital. Page 14 1 concussion, and d= they admitted him. Page 15 2 Q. OW you discuss with him what happened on 2 Q. Did you talk with him again that day? 3 the wa to the hospital? 3 A. Yeah. He told me after he got th=, you 4 A. IL said the -nu'l dogs had hit him on the 4 know, he was fccling better, but @ w= still going 5 head. 5 to nm sonie MoTe tests on hiin that night. 6 Q. Did hr indirate where on the kmd they had 6 Q. Did you talk with him about anydiing else, 7 hit him? 7 other than his statement about he was foe@ @? 8 A. Kind of toward the back of his hard hat. 8 A. No. I was just concemed about his welfare. 9 Q. Did you discuss what hc was doing at the 9 Q. Did you talk with him again the next day? 10 tinie or ilnything else? I 0 A. No. I I A. Vkll, he said hL was wabdng over to the I I Q. Aftrr Mr. Looney was @tted to the 1 2truck to get some cotfrr pins. 1 2hospital, what did you do? 1 3 Q. @d it's your un&ntanding that he was 13 A. I canie back to Bluefield. 14 wabdng to a separate @k, other than the boom 1 4 Q. Did you discuss the accident with anyone? 1 5truck? 1 5 A. I discussed the accident with BirkclbWL 1 16 A. That is correct. He was just waudng 16 also talked with D. M. Gibson who was opemting the 17 through the area of the boom truck. 17 crane on the track at the 6=. 1 8 Q. Did he indicatr whcthff he had gotten the 1 8 Q. Was that bcfore you retumed to Bluefield? 19 cotter @ or whww he was going to get them? 19 A. Yes. Gibson had stopped by the hospital to 20 A. He was en route to get them. 20 see how Mr. Looney was doing. 2 1 Q. Did he tell you anything else? 21 Q. What did Mr. Gibson tcll you? 22 A. No. 22 A. He told nie that he was moving the booin 23 Q. What happened when you got to thr hospital? 23 around. They wem going to pick something up, 1 24 A. He was taken in and exwdned. They X-rayed 24 believe a switch stand and @ didn't see -- hc didn't 25 him. @ emergency room doctor diagnosed a possible 25 see Looney. Then he had understood that Looney had Notes Page 16 Pagr 17 1 bm hit by the rail dns. He didn't see it hapi)en. I see how he would have been and w@, possibly, Mr. 2 Hc didwt rcalize that Loonry had walked inf6 the path 2 Looney would bave been in ordcr for him to have been 3 of the boom. 3 s@k. 4 Q. Is that all br toid you? 4 Q. And w@ did this take I)Iace? 5 A. N*IL he was con that @ was 5 A. That was on the back sicfc of the yard at 6 sonvftg wrong with the crane, that it wouldn't stop 6 Williamson whem the truck was parkeafor the night. 7 as quickly as he thought it should. After he released 7 Q. Was Mr. Gibson with you at that fi=? 8 the @ls, thr booti would oontinue to movc slowly. 8 A. No. I was with Mr. Birkelbach. 9 Q. Did you discuss that with him? 9 Q. Now, tell me what you did when you wem 10 A. lut's what he cxplained to me, yes. 10 checking the ctane out that @ing. I I Q Did you make 4m cormr rwnt about it? I I A. I had Mr. Birkelbach stand at the controls 12 A. WelL we had the =m inspected after he 12 in the position that Mr. Gibson was in to see how the 13 made the comrrient to rric, had it c@ed out by a 1 3boom would travel and whether he could obwrve the 14 mochmk, Bobby Marcum. 14 movement of the boom as it was moving along. You 1 5 Q Was that while you were still there? 15 know, if he could operate dc machine @d staiid in the 16 A. No. That was dorie the next day. 16 direction that Gibson was and still watch the boom, to 1 7 Q. Were you there the riext day? 17 check the path of the boom. 18 A. No. 18 Q. And was he able to do that? 19 Q. Did you go from the hospital to Bluefield or 19 A. Yes, sir. 20 did you go back to the work siie? I guess I'm not 20 Q. When Mr. Birkclbach was operating the crane, 2 1clcar @. 21 whenever the crane was moving, he could see w@ the 22 A. I went back to -- you know, the gang had 22 crane was moving? 23 con-c back in, and I went back and looked at the truck 23 A. Uh-huh. 2 4 Irrtrto 24 Q. You have to answer "yes" or no. how Gibson told nie that he was positioned 25 to how the boom was. So I wenf back to 25 A. YCS. Notes PW 14 - Page 17 Daisey R@g Services- 1 450 Main Sftd-Princeton, WV 24740 Looney v N & W Multi-page@ Jamcs Gearhart, 9/8/93 Page 18 Page 19 1 Q. Was there any problem with the movements of I Q. Did he in(iicate that it had been a 2@ crane? 2long-standing problem? 3 A. No. 3 A. I understand that it had been repaired 4 Q. How about the problem that Mr. Gibson had 4before, I tiunk several months before. 5described in teii,ig of the crane not stopping? 5 Q. Did you know who performed the repairs? 6 A. We were not able to get the boom to do that 6 A. Not sure. I think B6bby Marcum petfonned 7again. 7@ rep@s inspection of the boom fter j and he made the 8 Q. Did you operate the boom? 8 ury. 9 A. No. 9 Q. How many boom trucks do you have on your 10 Q. Was anyone eisc present while you were doing o(iivision? i ithis, other tha-n Mr. Birkelbach? @ I A. Plrobably about 30. 1 2 A. No. 12 Q. Have any of the other boom trucks had 13 Q. And that took place in the yard at 13 problems with the boom sticking or continuing to run 14 Williamson. West Virginia? 14 after thr men have tried to stop it? 1 5 A. Right. 15 A. Well, you know, we have these booms and we 1 6 Q. Were you aware of any prior problems with 16 use them quite often, so there are repairs made to the 17 the boom? 17 cranes as needed, if that answers your question. 18 A. No. 18 Q. I guess that's a very general response. My 19 Q. Did Mr. Birkelbach indicate to you that he 19 question was I think fairly st)ecific as far as tWs 20 was aware of any prior problems with it? 20 particular type of probl@ Mr. Gibson described to 21 A. No. 21 you. 22 Q. Did N4r. Gibson indicate to you that he had 22 A. No. TWs has not been a problein. 23 had prior problems with the boom? 23 Q. Have any of the odxr bo&m trucks had a 24 A. Well, he indicated dc t)roblem that he was 24 siniilar problem? 25 tetfing me about at the time it the hospital. 125 A. Not that I'm aware of *** Notes Page 20 Page 21 1 Q. W= you aware of this problem with the boom I@creatc the situation to see how it could have 2wxk in tifis case at the time, or rather before, 2happened, how he would have been, w@ he was, as a 3Mr. Marcum repaned it the fitst tmie? 3means of preventing anything siniilar from happening 4 A. No. 4again. 5 Q. Would you typically be aware of problems 5 Q Which way did Mr. Gibson indicate that the 6like that? 6boom had been moving at the time that Mr. Looney was 7 A. Wben we have a problem with a piece of 7injured? e .nient, W=aUy the supervisor, such as Mr. 8 A. He was standing at the left side of the 8 lp 9B@kelbach, would contact a niechanic or the niechanic'si9vehiclc, at the rear, wbch would be on the driver's io supervisor and the rtpairs are made. If it's a lio side. @ boom had been basically facing away from i icontinuirig probl-m or so@ng that they can't seem I 1him, across dc back of the @k, and he was moving 12 to fix, th= I beronie involved. The general 12 the boom from right to left in order to pick up a 1 3day-to-day rtpairs, a lot of thein are inade without my 1 3switch stand. 14 knowledge. 14 Q. Now, when you say "ftom right to left" -- 15 Q. So as I understand, the general repairs are 15 A. if he was standing at the left of the rear 16 gencrally taken care of by a lcvel of managemcnt below 16 of the machine and the boom was directly away from hirn 17 you? 17 across the back of the truck and he moved it from 18 A. That'S CorrW. i8 right to left, so he brought it around bewnd the 19 Q. Did you take any formal statements from Mr. 19 truck to a position which would have been behind hitn. 2o Gibson or N4.r. Looney? 20 Q. So looking at the rear of the truck, he's on 21 A. No. 2i the left? 22 Q. Or anyone else? 22 A. He's on the left facing the truck, facing 23 A. No. 23 the controls. 24 Q. Did you take any i)ictures of thr boom @k? 24 Q. The crane would be on the right-band side? 25 A. @ were sonie pictures taken. We tried to 25 A. @ crane is on the same si& that he is. Daiwy Repo@ @@1450 Main Sbact-Prinecton, ViV 24740 Page 18 - Page 21 J@ 9/g/93 Multi-Page TM Looney v N & W Page 22 PNe 23 1 Q. But the end of the crane would be on the I walking in relation to the work going on around him. 2 right-hnd side? 2 Just al paying of attention, you know. 3 A. Right side. 3 gt other nien in the area. if they had bccn 4 Q. Aid he's moving it around toward him? 4 watching, they rnight have @ Mr. Looney cro@ the 5 A. In a cloc@se position. That's right. 5 area. You know, I could find no one who saw Mr. 6 Q. And from your re-creation of the event, Mr. 6 Looney be struck. 7 Birkelbach was able to ob@ the movement of the 7 Q. In thr use of a boom truck like tws, is it 8 boom from the nght to the left -- 8 typical to have someone assisting the operator of the 9 A. @t's right. By turning his head, he could 9 boom to make sure that thcse types of ptoblems don't io observe the mov@ of the crane. Yes. 10 occur? I 1 Q. Was Mr. Gibson charged with any rule I I A. We don't have anyone assigned to do that. 12 ViolationS? 12 It depends on what the man is d@ing and wh= he is in 13 A. No. 13 relat3on to everybody else, w@@ would need 14 Q. Wcrc any chatgcs issued to anybody as a 14 assistance or not. 15 result of this inci@t? 15 Q. So that's a decision that should be made by 16 A. No. 16 the operator based on the work situation he's cngaged 17 Q. Why not? 17 in? 18 A. Well, after reviewing the incident, it was 18 A. The operator, or possibly the foretnan in 19 felt dw there was sowc responsibility by sevcral 19 charge. 20 poople involved. 20 Q. And if the operator's visibility is going to 21 1 @nk Mr. Gibson could have been a tittle 2i be impaired in any respect, either by remon of thr 22 mote vigilant in the mo@t of the boom. He says he 22 task he engaged in or the activities in the work arta, 23 didn't see Mr. Looney cmss into his path. 23 should the operator undertake to have sonie assistance 24 Mr. Looney, being in the work area, should 24 as far as helping him observe the wotk area? 25 have been a little more vigilant of where he was 125 A. That would be the proper thing to do. Notes I Q. Dqes the fo@ have any responsibilities Page 241 A. I don't @ber. Page 25 2 for the opera$Dr in that drcision? 2 Q. Would you expect that a boom operatot should 3 A.Mobscrves that @'s a hindrance 3 know the function of each lever befoTe7he trics to use 4 @, ho should becoaie involved. 4 the boom? 5 Q. Did you look at the boom truck yourself.? 5 A. YCS. 6 A. YCS, Sir. 6 Q. is ftm any spfcific training for an 7 Q. What was the W=al condition of the boom 7 operator of a boom that you are aware op. 8 truck? 8 A. The people that run the @ gcnerally 9 A. It was in scrvictable condition. 9 train ttx new people if somebody else is to @ it. 10 Q. Did you attempt to utilize the boom controls 10 We have certain fndividuals on c-ach otie of our gangs I Iat all on the left side? i iwho are qualified or can run thr boom. And if 1 2 A. No, I did not. 12 sorriebody new leams to run ttie boom, @ leach them. 13 Q Did you look at the ama where they wem? 1 3 Q. So all the training for the boom operators 14 A. @ work site? 14 would be on-the-job training? 15 Q. Yos. 15 A. YeS. 16 A. At Stone? Ur work site at Stone? 16 Q. Is there any test that they have to pass in 17 Q. No. My question is: Did you actually look 17 order to become qualified as i boom operator? is at the boom controls where Mr. Gibson had been 18 A. No. i9 standi 19 Q. And @ qualification would siinply be a 20 A. @@. 20 matter of the person who was operating the boom being 21 Q. Werc fty also in sciaceable condition? 21 comfortable that tWs new person could opetate the 22 A. Yes. 22 boom, as well as they weii doing it. Wo-uld that be a 23 Q. @ there any guides or notices that 23 fair statement? 24 indicated which lever opcrated which funcfion of the 24 A. Yes. 25 boom? 25 Q. I didn't phrase that very artfully. I guess Notes Page 22 - Page 25 D@ Reporting Services-] 450 Main S@-Princeton, WV 24740 Loaacy v N & W Multi-Page TM James Gearhart, 9/8/93 Page 26 Page 27 iwhat I was g to sa d you agmed with it was, IA. Who took the picturcs? I'm not sure who tryin t@ an 2when the trairicr feels at the trainee can do the 2took the pictures when they re-=ated the injury. 3job, tirn he's qualified? 3Q Was the re-creation so@ng that took 4 A. Yes. 4place after you had almady @ea to Bluefield? 5 Q. Is there any notation made on the trainee's 5A. That's correct. 6record that he's now qualified to operate a boom 6Q. How did you find out about the re-creation? 7Crane 7Had you requested it? 8 A. No. 8A. YCS. 9 Q. So theo@cally anyone on a gang who feels 9Q. Did you receive a report on it? 10 that they can ran the boom can do that job? 10 A. No. I did not get a rei)ort. I IA. GeneraUy, they are -- well, as I stated I IQ. How did you find out.about the results of 12 eulier, you have certain people on each gang that rLLn 12 the re-creation? 1 3tW craiie, and a lot of &ms it goes by seniori 1 3A. Vcrbally from Mr. Birkelbach. 1 4whoever the oldest employec is, who is qualif e@,will 1 4Q. What did he tefl you? 15 run a boom. 15 A. They were unable to get the boom to react as 16 Q. Are there any inswuction manuals rcgarding 16 Gibson hid feared that it drd. They really couldn't 17 use of a boom crane that you are aware oP 17 de@ne how Mr. Looney got hurt, other than him 18 A. I'm sure there arc. I don't have onc. 18 walking into the path of the boom. And Mr. Gibson, 19 Q. Are any.of thet sent out to the various i9 observi@ng the bo6m itself, wasn't looking ahead of the 20 ga@g@ for use in training or is it all just on-the-job 2o boom, bdt he (Jid not sm the boom hit or the rail dogs 21 training? 21 hit Mx. Looney. 22 A. As far as an instruction manual, I'm not 122 Q. You just told me that one of the 23 aware of one. 123 d@nations that was made was that Mr. Gibson was 24 Q. After you -- let me clear this up. Who took 124 not looking ahead of the boom. Is it a requirement 25 the pictures that day? 125 that when a boom operator is moving the boom that he Notes Ifollow the path of the boom? Page 281impital'? Page 29 2 A. Well'hr was following the t)ath of the boom, 2A. Well, I have spoken with the group of nicn 3but in our @@reation, if he @ @ looking a 3and he was a m=@ of tt about 4I ittle f@ @, he might have seen Looney. But 4working v each 5he did not see Looney at any time. So since nobody 5other, n@tew 6saw Looney until be told them that he had been struck,6load. Just at 7it was @ difficult to re-create the situation, 7hand, each person to prote, himself and try to 8especially since the boom did not react as 8ptotect others. 9thought it had. 9Q Is that something like a group safety 10 So the re-=ation didn't us any clear 10 @ing? i Icut reasons why he was w@ Vwas or why he had I IA. Yes, sir. 12 gotten hurt. 12 Q When did that take 1)laoe? 13 Q I gucss what I'm trying to get at is, as a 1 3A. I'm not sure of thr aate. It would have 14 general rulc, is a boom operator supposed to make Sure 1 4bwn within the next two or dm weeks after the i 5that the path in which he is moving the boom is clear? i5 incident. 16 A. Yes. Gibson thought that the path was clear 16 Q I understand that you talked with each -- 17 and he didn't soc Mr. Looney until he looked over and 17 maybe I didn't understand this correctly. Did you 18 saw Mr. L4Doriey was standing th= and said he had been i 8talk with each m=ber of the gan* to detennine whether 19 hit. So we're not surc what Mr. Looney's path was, so ig they had witncssed any of the accident? 20 it was difficult to re-create it. 20 A. Mr. Birkelbach did, 21 Q.. Since you droppfd Mr. Looney off at the 21 Q. Werc you with him when you did that? 22 hospital, have you spoken with him since that day? 22 A. No, I was not. 23 A. No, I have not. 23 Q. Did you talk with any of the other people at 24 Q. Have you spoken with Mr. Gibson about the 24 all? 25 operation of the boom since you spoke with him at the 25 A. Well, N4r. @tc was with me and I asked him s*** @WY Repo@ SeM@1450 Main S@-Prin=Wn, WV 24740 Page 26 - Page 29 James Gewhart, 9/8/93 Multi-Pagc rm Looney v N & W Page 30 Page 31 i if any of the odw poople on the gang had indicatccf- iMaybc an easier way to rephrase that: What sources of 2 what dW might have scen, but I was not able to 2noise was th= at dc work site? 3 dewrmine anyone who actually saw the rail dogs s@ 3 A. You would have the truck operating. 4 Mr. Lomicy. Nobody witncssed it. 4 Q. The boom truck? 5 Q. Do you know if this boom truck cver had 5 A. Yes. 6 subseqw@t ptoblems with the boom continuing to move6 Q. The engine was n=ing9 7 after sonicotie tried to stop it? 7 A. T'hat's co,Lect. 8 A. Not to my knowledge. 8 Q. What other sources of noise = thm? 9 Q. Dc) you know if anyone covered with Mr. 9 A. Well, we wem working up near the load point 10 Gibson the operation of the boom U=k to makc sure he 10 of the coal operation. I Iwas f@liar with all the lcvm for opcration of the I I Q. Is that nmning? 12 boom =& after the accident? 12 A. I'm not sure. I can't @ber. The noise 1 3 A. Mr. Birkelbach got with Mr. Gibson, as well 13 level did not appear to be excessive at that fim. 14 as e=@y e w@o,n ttg ty Xg, and to my knowledge, 14 Q. Did you havc any problem talking to Mr. 15 Mr. of the operation of the i 5White? 16 boom. 16 A. No. 17 o. @ vou wcre taudniz with Mr. White at the 1 7 Q. Did you review any documents in preparation i 8site of the ac'ci&-nt, Mr. Gi@son, as I understand it, i8 for today's @ition? 1 9was mo@ the boom around. Mr. @ was working on 1 9 A. No. 20 gang 20 Q. Do you have a filc on this particular 21 21 accident? 22 the switch 22 A. I'vc got an injury report. 23 of the 23 Q. Is that a typewritten report that you 24 on it. 24 ptepared? 25 site? 125 A. That's right. It was filed with the FRA. Notes I Q. I&that Uw only report @t you prepared? Page 321STATE OF WEST VIRG@ Pap 33 2 A. YOS. 2STATE AT LAIL(K @@t 3 ible 3 4 4@ NW" PuWw mtho and fm the S@ of Wm 5 5Virgu" m LaW do hmby mffy dw dw 6 6fmvmg @@ did Wm befo. m a the @ wA 7 MR. .: Mr. @art, flmt's all I 7pl@ @ified in the c*wn Wmf-, Thu the @d 8 have. I appreciate yotlr time. 8i@ @ by m f"t duly @; Tha the 9 MS. CONRAD: Do you want to read or 9ft@.f the md @@ @ by m @do@ m 10 waive? 10 S@@ @@ M @@bed @ the @ I I TRE WrrNESS: I'll waive. 1 1 by Co@w Aded T@ption . m forth 1 2 MR. .: Plmw mark that as 12 @ . bing . @ @ ..t @pt 13 Deposition Exhibit 1. 13 of dw @d @@; nW I @ mi@ Co@l fm 1 4 (Dcposition Exhibit No. I was 14 " ml&W w W f mW haw m 1 5 marked for identification.) 1 5@t i. th. @ 1 6 (Wi@s excuscd.) 6 M 0 S@@ MD AGRUD by the 1 7 (@upon, at 9:45 a.m., EDST, dc forrgoing 7@w @ @ s@.f @ fmWiN md@ ig 1 8depositidn was concluded.) 1 8@by mp"iy @@ed m dw fmwug &"itiom 19 1 9 CA@ @ my hoM @ 13th dy f 20 20 Sepmmber 1993. 2 1 21 22 22 23 23 24 24 25 25 My Co@m "pm J@ 9,2003. Notes Page 30 - Page 33 D@ Rcparting S@@1450 Main S@-Princcton, V" 24740 @ey v N & W Multi-Pagc James @hart, 9/8/93 1 INDEX Page 34 2 3 4 By MR ay ME KO@ D. Ge@ 3 6 7 8 9 a I I EXHIBITS 1 2@T'S @R WE@CA@ON N E@ENCE 13 @. 1 32 14 15 16 17 IS Page 33 19 20 2 1 22 23 24 25 Notes Notes Doisay Repo@ @ces-1450 Main S@-Princeton, WV 24740 Page 34 - Page 34 I i i i I I @ i Z I I u 04 9 @t m@ @&Ak@ O/ I