Plaintiff vs. Norfolk Southem RR Multi-Page@ Robert Forsythe, IV, 6t2l/95 l@ r) VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF RICHMOND JOHN MARSHALL COURTS BUILDING - - - - - - - - - - - - - - - - - - - Injured Plaintiff, Plaintiff V. At Law No. 95-A-520-3 NORFOLK SOUTHERN RAILWAY COMPANY, Defendant - - - - - - - - - - - - - - - - - - - DEPOSITION of ROBERT W. FORSYTHE, IV, taken pursuant to Notice, before D. McGuire, a Registered Professional Reporter and Notary Public for the State of Virginia at Large, at the offices of Maloney, Yeatts & Huennekens, 600 Ross Building, 801 East Main Street, Richmond, Virginia, on the 21st day of June, 1995; said deposition taken pursuant to the Rules of the Supreme Court of the State of Virginia. Trimicw vs. Norfolk Southcirn RR Multi-Pagc" Robcrt Forsythe, IV, 6/21/95 P.,. 3 Pich@,i M. I,,@ 2L, I'll Wi@.@ i H@@k, P.C. 1291 Di.@ld R..d I N D E X P',@, tfil. Bl. 5369 @..@h, Villi.t. 234 55 --- - - ---- --------- ---------------- C DIRECT @ROSS Fl-d .. El'@k, M@1CI@,, f@113 I H@-.@k.,@ RII-11 I 4 -- 6(10 R.@@ blill@, HI@ ----- --------- ------ v@,@i. 2321 9 f@l Ih. D.f@@d.@t Fl@RSY@-' @El@) ITII,@ @'H@BITS PAGE N,@,,; Al d@@i., h@ l.ki., t M@. M@Gi@l@l'. @..Ih@l. WNS SL..d.@d 59 @,.b., 2 - Di..,@@@ f @.il .@d 62 Illf.i@ S',@h L"l @ill@li. 23514 Li Notes ROBERT W. FORSYTHE, IV, a witness Page 4 A l'in forty-two years old. Page 5 called to testify by counsel for the Plaiiitiff, first beiiig Q All right. So you Started with the dlily ,wom, deposes and states as follows: Railroad iii your early twenties? DIRECT EXAMNATION A Mid-twcnties. B)'MR. SHAPIRO' Q Acitially lale twenties? Q Would you pfcase state your full iiaiiie? A Yeali, twenly-seven. A Robert W. Forsythe, fv. Q Did you have any other railroad @ of Q And what is your home address, Mr. work you did before coming io this railroad? Forsythe? A No. By railroad type of work, you mean A 905 West 32nd Street. coiistrLiCtiOll or iiidiistrial? Q Is that Richinond? Q Yetdi. A In Richmond. A A little construction. Q You have lived in Richiiioiid yotir wliole Q All right. \Vhat brought you to work life,? tor the Railroad'? How did you get in @ the railroad A My family has beeil iii Riciiiiioiid iiiy wliolc coiiipany'? life. I have traveled, and this has bcen iny base of A I was iiiade aware of an opening. Four opcratioiis. 1)eol)lc werc liired at ilie saiiie time. A large tie.job was Q \Vhat is your presetit title with the takiiig place bcgiiiiiing iii West Point to wind u6 in Railway Company? Rictinloiid, @iiid I interviewed and took the.job. A I ain an assistant track supervisor. Q Okay. Were you Iiired into that Q And what is your daie of scr%,ice witli assistaiii track siipervisor's job? the Railroad? A No. I was hired as a laborer. A I started in Septeinber of 1981. Q How iiiaiiy years unlil you got into flw Q And how many years of age are you iiow'? positioli fililt vou al-c ill iiow? A f was proiiioted to assistant track Notes Page 2 - Page 5 T@cw vs. Norfolk Southern RR Multi-Pagc@ Robert Forsythe, IV, 6/21/95 Page 6 Pagc 7 supervisor in January of 1988. Q Do you get tested on those? Q Okay. When you started that positioii A Yes, aiiiiually now. iii '88, were you in the saine area you are iiow, saiiie Q You have a refresher quiz or test? division'? A It's jiow incorporated into the annual A Yes. reviews of the Railroad Standard Procedure 390, which Q So since that time, you have basically involves the inonitoring of the effects of compression, been working that area between Richmond and Burkeville, and effects upon the rail, what's called in the vemacular, a going to West Point the other way? hot-weather ineeting. The FPA test is now adniinistered A Correct. at the same tiine that we gather for these hot-weather Q What types of things does an %ssistant ineetitigs. track supervisor do? What are your types of tasks and Q Are those ni"eings t on by the FRA, duties? or are t[icy put on by the Railroa@u? A The principal role of the assistalit A The Railroad. track supervisor is the inspection of track, to ideiitify Q But the Railroad has tests that you aiiy deviations from the standards set up by the Railroad liavc to pass each year, don't they -- atid by ilie Fedcral Railroad Adininistratioii, aiid iiistittite A Yes. rcinedies to any deviations or for aiiy dcviatioli frolii tiiose Q -- oii your kiiowledge of the regulations track staiidards. and the rules? Q Do you go to a school put on by the A Yes. Railway Company, to leam? Q Have you done okay on those every year A Yes. Thcy hold classes in McDonougli, and passed tkm? Georgia. A Yes. Q And did you learn a nuinber of those Q Do you keep any of the Federal -- I Federal Railroad regulations and standards'? will just call it the FRA, for short -- do you keep any of A Oh, yes. tile FRA rcgtilatiotis handy in your truck? Notes Page 8 Page 9 A Yes. with ine, aiid he passed on down as my helper. Q Are there FPA regulations pertaiiiing Q Right. to, well, the rail that runs along the track? A He left and went to Charlottesville, A Oh, of course. I t[iiiik it was after about tlirce inonths. Injured had been Q What about crossties? out after an alitoiiiobile accident at that tinie. A Yes. WITNL:SS FORSYTHE: (To Mr. Triraiew) Q And what about ballast? IN itiat correct, Sliiii? A Ycs. MR. TRIMIFW: uh-huh. Q And when we say ballast, we iiicaii all MR SIIAPIRO: (To Mr. Forsythe) For l@ rock that lines the railroad track, right? purposes of the deposition, hc can't come crn A Yes. record and talk. Q VA= did you first work with Mr. A I asked Injured if he would go ahead Plaintiff, the plaintiff 6cre, who is with ine today in ihe and accept this position, take the.job, as TM-6 is a one- rooin? inan gang, the man who rides with you, the assistant super- A Slim was working in Richinond -- Cliiitoii visor. And Slim agrced to, and we were togcther from that was working in Richmond when I was hired, so I liave kiiown tiine until August the 20th, 1993. Injured sitice 1981. Q You guys were basically like a team -- Is that his nickname, Slijii'? A Thai's correct. A Slim, yes. Q -- after hc caine on with you'? Q And when you were proiiioted to assistiiiii A Uli-liuli. track supcrvisor, how loiig werc yoij iii a Iiigli-rai I ti Lick, Q Was Mr. Tritniew a depeiidable worker? iii that position. before Mr. Triiiiiew caiiie aloii,, witli yoti, A Oli, iiidccd. or did he get with you pretty much right after yoti... Q Did you kiiow hiiyi to be a safe worker? A When I was promoted, lhc geiillcinaii wlio A By and large; by and large. There are had bcen working with my predecessor was the first to ride soine episodes of wliere there were oversights, but by and Notes Page 6 - Page 9 Tri@cw vs. Norfolk Southem RR Multi-Page'@' Robert Forsythe, IV, 6/21/95 Pa,@,c 10 Page I I large, Sliln was a safe worker, safe and depeiidablc. versation -- Q You never had to report hiin for a Q Surc. safety violation ever, did you? A -- of a personal nature. A No. Q What about some of the types of things Q And you never had to formally that in your day-to-day work you would inspect for when you discipline him? are out there on the track? A No. A Oh, anything that can cause a problem. Q Did you believe Mr. Plaintiff to be aii Q Give ine some examples. honest person? Q A broken joint, bolts that are out, A In the affairs which revolved arouiid anyt[iiiig that coinproinises the track stracture, any our railroad aclivities, I had no cause to suspeci Mr. dcviation frotyi the correct geometry, surface, lines. At Triiiiiew of being anytmng other than honesi. this tiinc ot'year, we siay on the railroad tracks to make Q I ii ine if you rode togetlier witli liiiii sure tilat lhey stay in line because when the rail gets hot, -time I I'Igk s would be about live years, there is aii opportunity for it to full for it I like it move, it's under com- didn't you, bcfore his accident, '88 to '93. pression. Monitoringtheweather,apartfromjustheat. A '88 to '93, yes, I iinagiiie ii was And if you have got stonns breaking, we are out th= on pretty close to five years, yes. the railroad, findlnv out what is takiniz place due to the Q You got to know each other pretty well, storm; the drainage; the entire strLL@ falls wittfin it. didn't you? Then again, inaintaining the tracks within the standards A Yes, but neither of us is -- prescri@d by the Railroad and by the Federal Railroad Q It is a business acquaintance, iiot Adiniiiistratioii and, as I say, any deviations from those social acquainiance, is that what you iiieaii? staiidards. A -- neither of us gossips a great deal. Q If ilicre is a deviatioii, do you keep a So a lot of the going-on iii oiir lives werc av@iil@ible to log of aiivtliilig tliai you fiiid to be wrojig? coiivcrs@ition; we weren't iiivolved iii oii,,,oiil,, coti- A All FIZA (ICTCCI rcport is reported that Notcs Page 12 Page 13 eveiiing. qLICStiOll. Q You have a slieet tllat YOLI WOLI]D tl]Tll ill MR. SHAPIRO: wcll, let ine rephrase to your supervisor? ttiat. A It goes to the divisioil ciigiiieer'N Q WI]CII YOLI gO OUt tO ](>ok for defects, office. does soiiicoiie tell YOLI what to go fitid, or what do you base Q \krhat would you do, would yoli like tlirii it oil? it in and fax it to @s office? A You inean does soineone in Roanoke call A No, dcy are mailed at the end of the ine up aiid tell me, Bob, I think therc's a bolt out at the week. If it's five days that we are inspecting track, ii F67.7'? would be five reports. Q Right. Q So you would do one every day -- A No, it's incumbent upon me to find A Yes. that bolt. Q -- if there was soinething to report'? Q So that is an independent thing for you A You file one whether or iiot you liave to find'? soinetliiiig. A Indepcjident is forming a word -- if Q I see. I doii't see it, it's not found. A If you're not reporiiiig zi defect, ilicrc Q I gliess ttie point I'm trying to is a report. @tablish is th@it you have an iiidepetident role in g 'ng out ol Q I've got you. So your job is basically ajid scokiiig out iiiiiigs; nobody says, go look at this, this, one of an independent nature; you arc supposed to tise your aiid this? independent judgment on whether there is a defect? A Actually, the territory, or the track MR. KOZAK: I'm going to object to that that we cover on a given day is fixed. qucstion. I think it calls for a legal con- Q R ight. clusion possibly. You can ask @im what his A You have to schedule inspections in duties are, but I think that is an improper compliance with the FRA'S criteria for frequency, and Notes Page 10 - Page 13 T@ew vs. Norfolk Southcm RR Multi-Page@ Robert Forsythe, IV, 6/21/95 Page 14 Page 15 interval, on inspection of givcn tracks. A He was always there. Q And you had a particular iiiterval aiid Q -- you would get ahold of hii@ and Ic rouline that you followcd when you went to all ilic areas would coinc'? He would get out there in the @ddle of the between West Point and Burkeville, didn't you? On Moiidays, night if necessary, wouldn't he? you did a certain t[iing? A Exactly. A You have that. Q Vrhat FRA regulations are you aware of Q And Tuesdays, you have that stretch of that relate to the specifications for bal@t on railroad track? track? A And @re is nothing that indicates A The ballast has to be able to restrain where, at wwch end this section begins, just the entire the track laterally and horizontally, lgn&itudinally, and stretch of track in question. In this case, West Point you have to be able to a] low for the drainage water from would be from one milepost to another milepost. That the railroad tracks, and it has to restrain, oT pro- cntire strelch of track has to be inspected on that day. vide for the surface of the railroad track, provide Q Right. In other words, things could adequate rcstraint for the railroad track. cojiie up, einergencies that would cause you to go other Q Are there any regulations Telating to places. But you did havc a general way you would proceed how iiiajiy iiiches above or outside rail the ballast is during a work week, didn't @ou? iiorinally laid? A Yes. A The FPA',' Q And you also had occasions where you Q Yes. would basically be on call, as you mentioned, like a storiii A No. and soinething. You would have to call Mr. Tritniew in the Q What about the Railroad itselp iniddle of the night and say, Ict's go out and soc what kiiid A The Railroad does have standards. of dainage is done on the track, didii't you'? Q And what are they? A Yes, indeed. A Continuous along the rail -- you have a Q And when you would call hiin ballast section whcre it is six inches on tangent track, on Notes *** citlier side of the rail, six inches oii citlier side of the Pagc 16 crosslic'? Page 17 track froin the edge of the tie before sloping dowii to ilic A About at the level of the crosstie. ditch line. On the curve, it will be twelve inches With ft standards, an inch and a half or two inchrs contiiiued out from the plane of the edge, or the plaiie ol' across; it does not have to be exact, about the level, dc the ties before sloping down to the ditch line on the plane of the crosstic. It cxtends out about twclve inches outside of the curve, six inches on the inside of the on the outside of the curve, six inches inside -- six ciu-ve. inches either side a tangent. Q What about the height of the Q When you inspect track, when you'rc out ballast above the level of the ground or @ crossties? on your inspection and you are inspecting track, and you A nrre is no specification. have to get out of your vehicle, is there any particular Q What about the Railroad's praclices lor coiiipaiiy rliles that say you have to walk inside between the that? Doesn't the, Railroad have praciices oji ilic grooiiiiiig, rails? ihe liciglit of the ballast? A No. Actually, the practice is to walk A Yes, it does. outside of the rail when practical, unless the conditions Q And what do you understand thosc to bc'.1 under which you are doing yottrjob -- it's what is A Generally they are to restrain the necessary to do your job, or what the conditions indicate track longitudinally a7nd h6rizoiitally, vcrtically to that is the place to be. proinote the drainage or allow for the drainage of ilie Q If there is a ditch beside the rail, track, and the minilnum restraint that is indicated in tl@e the railroad track -- the slope did vary, I take it, at standard procedures, provided at least that platic cxtends soine points. oii the outside of the edge of the ties before the ball@ist A Of course. i.s graded down to the critch. Q -- would you usually walk down in the Q Do I uiiderstand that to incaii tlial the -- l'iii iiot sayiiig a ditch in the sense of a water ditch, grade or ihe level of the ballast is siil)posed to be iii@jvbc btit would you walk dowli the slope, or would you walk up just a Iiitle bit above the edge or the level of tl)c outsidc of ilie rails wheii you would geiierally walk to Notes Page 14 - Page 17 Plaintiff vs. Norfolk Southern RR Multi-Page@ Robert Forsythe, IV, 6/21/95 inspect, when you are outside of the rail? Page 18 truck. Its predecessor was a similar design. Page 19 A Whercvcr I'm going to get die best Q Similar truck? Are you aware of any perspectivc. writteii rules that specify how to enter and exit the cab of Q You niight do both? a high-rail truck like you and Mr. Triniiew operated? A I niight do both. A Yeah. The procedure has been Q You might go down; you niight go up? introduced, mounting and dismounting is to be done facing A Uh-huh. the vehicle, or the machine, and whilc7maintaining thme Q Certainly there are a lot of times when goionts of contact. Now, to cite the exact rlile in tfie rule you're walking just outside of the rail thougli? k, I can't do that for you. A Yes. Q Are you aware of a written nde in thr Q Is it one of yoLLr i.obs as an assistant book? I haven't been made aware of one. track super-visor to ordrr ballast regulators to collie ill to MR. KOZAK: if I can ask a qucstion -- groom rock? which book are you Teferring to? A No, that really doesn't generally fall MR. SULAPIRO: The company rule book within iny area of responsibility. If I ain the only super- that outlines safety rules. visor workiiig in the area or a territory, it would; but A I can't answer that positively. generally that is the function of the supervisor, the track Q You can't right now cite me to one? supervisor. A I can't cite you word for word the rule Q All right. During 1993, in your in ft book. region, that would havc been Mr. Palmer? Q But you are aware that there is a A That's correct. company procedure that has been explairied to the workers? Q You and Mr. Triiniew, did you work out A That is correct. of the same high-rail truck froin that period wliere you Q Now, when therc were safety presen- first took the job up until 1993, when he was hurt? tations, verbal ones, you know, or just they were ex- A No. This was @ second high-rail plained, was Mr. Plaintiff generally with you because you *** Notes fv i ku 2 @f,, were in the saine gang with him? Page 20 Q And he never did a demonstration from Page 21 A Yes. TM-6 and TM-20, the two local the cab of a high-rail truck like this one? gangs meet togethcr. A To be completely candid, I can't rule Q Mr. Palmer often would give those it out; I don't actively recall getting in and out of MY presentations, but sometimes other people would? truck to deinonstrate the procedures as they applied to that A That's correct. door. But I do have some recollections of extending thr Q Prior to August of 1993, that is the applications of these procedures to the other vehicles -- inonth Mr. Tri@cw was hurt, do you recall specifically Q Oh, sure, l'in not questioning that. whether anyone gave a presentation of entering or exiting a A -- getting out of the doors, the front truck just like your truck, entering or exiting the cab ot' door, the pa@nger doors of these gang trucks, getting out a higii-rail vehicle itselp of the doors. A No, I do not. Let's start with the gang trucks. Q Okay. The presentation -- there was a I don't recall a demonstration of pickup trucks. TWs presentation about exiting and enteriiig? truck is available for comparison as regards how these A Mounting @d dismounting vchicles and techniques would apply to mounting and dismounting the inounting and dismounting machinery. truck. Q And Mr. Palmer gave a deiiionstralion at Q I'm going to get to that. I just one time, did he not? wanted to make sure I understand what physically was shown. A Yes, he did. Okay. When the physical demonstration was shown, Mr. Palmer Q When he did the actual deinonstratioti, didn't show it in that particular truck, right? he deinonstrated froin the rear of a gaiig truck, did tic iiot A The truck that was used was a gang A That's coffect. trlick, the two-toii gang truck. Q -- a two-ton gang truck, t[icy call ii, Q When he was discussing the three-point ri,,,ht" stance, you are saying that you understood it to apply to A That's correct. aiiy type of vehicle'? Is that basically @ gist of what Notes Page 18 - Page 21 Plaintiff vs. Norfolk Southern RR Multi-Page@ Robert Forsythe, IV, 6/21/95 you were just saying? Page 22 Q And once you're on @ ground, is it Pagc 23 A That would be correct, yes. okay to release one of the points of contact? Q When Mr. Palmer demonstrated going out A Once you have dismounted -- you are of the rear of the gang tr-uck, how did he disinount, do you dismounted, you're on the ground, I tWr&, you know, drse remember? How did he show dx proper way to get oul? are -- you still maintain sonie interest in retaining your A Several ways. You know, he was balance. If your balance is compromi@ wc have somdwng alternating hands. The i'dea was to maintain three points of handy to hold onto to help us balance ourselves. contact. It's not a stance. You step down, one foot is on Q Have you ever had a slip or a near slip the ground, one foot is on the step, and you have a hand when you were exiting from a high-rail vehicle? holding. As the other foot hits the ground, you release A You mean is it inherently dangffous or the grip, and the third point contact, you are on the hazardous activity? ground. Two hands, one foot, one foot descending. There Q No, no, I'm asking you personally, have are variations, although while limited, they are variations you ever slipped yourself from getting out of a high-rail to the application of anns and legs. There are a nuinber of tr-uck -- you have becn working now seven years -- not to ways you can maintain three points of contact. the point of injuring yourself. Q Well, there's only two, aren't there? A No, I don't recall having ever really A Two hands, one foot; two fcet, oiie found inyself falling out of the truck. li.ind. Q So you have nevcr had an incidcnt where Q It's only two? yoLLr feet slipped on you at all? A Essentially left foot, right foot; left A There are such things to be aware of, hand, right hand. whether it's on Main Street or in- a railroad yard. You get Q All right. I suppose soine peniiutatioii, out of a vehiclc, you are to be aware of what you're but you have to have two arms, one foot, or two feet and steppiiig otito, from a brick to a copperhead snake. There oiie liand? are all such tiiings to be aware of when you are dis- A Yes. inounting. It is not a completely controlled environment, Notes *** nor is Main Street. Page 24 Q And prior to the actual dlunping, are Page 25 Q Getting back to the rules regarding the ties inarked and are decisions made on what crossties ballast, we talked a6out six inc@ out and slope and will be replaced? all... A Generally. Soinetimes -- there's not an A That is a procedural staiidard, iiot as ironclad ,4quence. Generally you want to have dx ties much a rule. inarked ahead of time. The gentleman who marks the ties is Q What do you mean by procedural out well in advance; he wants to do that without inter- standard" fering with ihe mater-ial on the gir@und. A The procedures iiidicate how a track is Q Will the division engineer or to be iiiaintained. A rule involves soinething eiitirely production cngineer make a decision on how often a T and S different. This is not a rule about how the 6a]last is gang is going to come through a certaiti area of track? shaped, it's a procedure. It is an often-done procedure. A Yes. Q Is that the same as for the level of Q It is not every year, is it? the ballast with the crossties that you described? A No. A Correct. Q It could be every few years, can't it? Q What is the procedure as far as duinping A Each track has a generally understood of ballast from ballast trains after the duinpilig occurs -- cycle for T and S gang, depending on tonnage, sperd, let ine start the uestion this way: Once the ballast is various other factors. duiiiped by a ballast train -- why is it duinped'? Q Is the general idea to duiiip the ballast A It's dumped in advance of a stirtacing relatively close in tilne before the T and S gang comes operatioii. through to do its work'? Q By a T and S gang'? A Relatively closc. A A T and S gang is a iiiiibcr and Q What is relatively close? servicing gang whcre ties are installed aiid ticed A Months. surfaciiig. Q In a inonth? Notes Page 22 - Page 25 Tr@ew vs- Norfolk Southern RR muiti-page@ Robert Forsythe, IV, 6/21/95 Pagc 26 Page 2? A Usually, if it's down to a monih, you or whatever had to be done, right? have got a T and S gang breathing down your neck. A Right. Q So witmn three months? Q And, in fact, it is your understanding A That is within the nonnal realm it that T and S work was never done in that area until just in takes. It takes time to -- in this particularjob, if I the last two or three months, in 1995? can volunteer inforination, your T and S-ing over forty A That's when the'job was perfomied. miles of track. It takes time to get dr stone out ahead Q Certainly in a perfect world, wouldn't of the gang to T and S forty miles of track. It can't be it make sense to dwnp that ballast just a few months before done ovemight. the actual T and S work was done! Q Right. And werc you aware that a MR. KOZAK: I'm going to @bject to that ballast train had come through an area just around Burke- question. I tmnk it's argumentative, at least. ville, Virginia, on that main line around Marcli of 1993? MR. SHAPIRO: True. A Yes. I helped unload the stone. Q Customarily thr ballast rock, as you Q Mr. Trinii&w also helped? said earlier, showd have been dumped within a couple of A Mr. Tziniiew also helped. months of when the T and S gang ivas con-ting thro4h? Q And did there coine a time a few inoiiths A Customarily, you start gming bihast after that, that you understood that tiie T and S gaiig would trains several months before the T and S gang will arrive. not come through that Burkeville area? Q During your track duties, do you have A That @ job had been canceled, that's occasion to go into the sidetrack that is located near correct. Bickeville where some -- I think some railroad maintenance Q You did understand that? machinery is kept? A Yes. A We have a nwnber of tracks in Q All right. So all that rock that had Burkeville. been duiiiped on both sides of the track basically was Q Havc you ever seen a ballast regulator waiiiiig for a gang to work oji the crossties aiid rails, and/or taiiiper in a sidetrack around Burkeville? *** Notes Page 28 Page 29 A Oh, yes. Q You are saying he told you that? Q Was it there in 1993, in August? A Yes. And there was not so much in A Now, I would have to go back to every instance his telling me, Bob, this is how far I'm jouriials to get an exact date as to wlicii ttiat would liavc goiiig to go, and ]'in stopping; it was in conversation with been operatiiig in Burkeville. OLLR tainper aiid ballist other peoplc to which I ain privy, just by being therc, that regulator, thejob they usually are assigned to is Slim had stated, or his intention seemed to be that his inaintaining or restoring surface basically where you plans were to relire fairly soon. just have a small little place, those deviations in surface Q Fairly soon, what did that mean to you? up and down the railroad. nw tatnper and regulator were on Did he define that? the south end of this railroad in August, in the suininer of A Well, I didn't want to see him go, 1991. since he was a good man to have with me. I was judging Q Okay. that to indicate within half year to a year. A But I can't tell you exactly what days Q When did you recall him- telling you and where they had thcm. this, Mr. Forsythc? Q As far as assigning those inachiiies to A Date? HoLLr'? parlicular work, would that be soinethiiig withiii Mr. Q If you reinember. P,@iliner's responsibililies? A No, I don't exactly have a date and an IN Ycs. liour. Aliy jiuinber of tijnes before August the 20th. I Q For the few inonths, let's say carlier assLLme, siiice I am under oath, that it's sufficient that I iii 1993, before the date that Mr. Triiiiiew was liurt, (lid you recall that ftse conversations took place without being atid lie ever discuss his futLLre plans witli tl)e Railroad'? able to exactly locate d)em as to time. A My understandin was that his intentioii Q Well, I can't answer that question; I was to retire. And the exact @ate wasn't soitiething ttiat I caii just ask you to answer questions to the best of your liave coinrnitted to memory, but he was planning on going away knowledge. froin the Railroad and retiring within a year's time. I A If I don't know a date and a time, I Notes Page 26 - Page 29 Plaintiff vs. Norfolk Southern RR muiti-page@ Robert Forsythe, IV, 6/21/95 Page 30 Page 31 can't state a date and a time. been an inch or two of the level of the crossties, what are Q August 20,1993, do you know liow old some of the reasons, that you arc aware of, that those Mr. Plaintiff was? ballasts, the level of the ballast is generally to be A The accident, or inj'ury report, horizontal until the slope heads down? indicates that he's sixty-five, but then I have seen other A The shoulifer? You'rc tabcing about the reports that at the sarrie time indicate that he was sixty- shoulder of the ballast? @. So no, I can't tell you with any certainty that I Q Yes. know exactly how old Mr. Plaintiff is. A The principal concem in shaping the Q You worked with him from 1988 until ballast section, as I un(ferstand it, is to provide 1993, and during that period, did Mr. T@ew evcr suffer adequate restraint vcrtically as the com@ressive forces from any injury that you werr aware of to his back? that occur due to the heating of the rail in s A Nothing was brought to my attention. Also, the rail can draw in @ it's cooler. That's Q Did he miss any time for any type of generally why the ballast section is considered important, back iiijury that you are aware of.? that they have enough on the edge of the ties or o@ide A No. edge of the iies so that they stay put during temperature Q Okay. DLLring the time you were fluctuations. workiiig, during dc day dfd Mr. Tritylicw ever say to you, Q Well, is it irrelevant as to whether Mr. -- what did hr call you? Do you have a nicknaine? the ballast is flat or has a mound-Ue shape to it on the A Bob. shoulder? Q Did he ever say, Bob, I can't lift A You're talking about its capability to those bushes; my back is hurting me? Bob, my back hurts me restrain the track? today; I can't do what l'in supposed to do? Q Yes. A No, he didn't. A I would be inclined to say that it's Q Okay. The procedures on ballast and not going to have a measurable effect on thr ballast's the height of the ballast which you described has to have Icapacity to do what it's anticipated to do, that it doesn't *** Notes *** coine directly or stiraight off, or at the plane of tk Page 31. A That's correct. Page 33 crossties, and is mounded instead. I don't twiik that it Q But that would be if you're walking at'fects the ballast's capability to perforin as desired. down a track and sonieone asked you a question, is it Q On the other hand, can the height of properly groomed, if it's properly groom6d, you would the ballast above the level of the crosstie on the shoulder assume that thete would be level ballast on dw shoulder of affect the walking surface of someoiie walking on ttic the track? shoulder9 MR. KOZAK: That's why I objected to A Of coiirse. the question, because I think when-you arc asldng Q And the @gher and thicker that stone him about it being properly groomed, it depends is above ihe level of the ground, would that inake it easier on the timing of it, and I don't think that's or harder to walk along @ shoulder? clear in in your question. A 'Mat would make it harder. WRFNESS FORSYTHP: That's correct. Q When the shoulder is properly grooined. Q Let me start over. Okay. Wben you're you would agrec that the level of the ballast on that out lookijig at track, as an assistant track inspectot shoulder is to be just above the level of the crosstie, aiid A Uh-huh. in a flat surface?' Q -- properly giroomed ballast would be A Roughly at the level of the crosstie, ballast that, on the shoulder, is level and is just an inch but again,an inch and a half to two inches. It doesn't or two above the level of the crosstie out to the slope, have to be exactly at the level of the crosstie. fight? MR. KOZAK: Just to clarify that A When I'm out inspecting track and m answer, you say when it was properly grooiiied. vision is upon the ballast, what I am most concelyd at)out Do you mean before or after the T aiid S work is if there is adequate ballast at the heads of the ties, is done? to restrain tl)e track. Q I assume this to incaii after T and S Q You need to answer iny question, then work is doiie. lyou caii explain it. Notes Page 30 - Page 33 Plaintiff vs. Norfolk Southern RR Multi-Page@ Robcrt Forsythe, IV, 6/21/95 A All right. Properly, the ballast is an Page 34 objection. Page 35 inch and a half to two inches, the stone, and it should be (To the witness) Go ahead. at rougmy the level of dw crosstie. A If there is a stone underfoot, I twnk Q Out to the slope? you will find it more difficult to keep your footing than A As an item to be inspected, we are more if you're walking on a concrete sidrwalk. Of co@, if concemed, or we are concemed that there is enough stone there is stones underfoot, it's going to affect your to properly restrain the track. footing. Q Well, the issue of the level of the Q All right. ballast on the shoulder would probably more affect, not the A And, of course, it's obvious -- how stability of the track, as you pointed out, but it would much more do you want me to get to in the way of specu- affect the walking swface for workers, wouldn't it? lation, how difficult your footing @mes? So it's some- MR. KOZAK: i'm going to object to thing quantitative. that question. It's argumentative. Q You are using a new high-rail truck MR. SH"IRO: No, I don't think so. that is of a different mak@and manufacture than you werc I would like go get an answer. w@ Mr. Triniiew was working? VATNESS FORSYTHP: Restate it, please. A Well, they're the same manufacturer; Q It would more affect -- that is, the it's a Chevrolet pickup truck. level of the ballast on @ shoulder would less affect the Q Let me show you photographs which have stability of the track, but it inight inore affect someone, been iiiarked as McGinley 3 and 4, and ask you, is this the whether it's a worker or anybody walking on the slioulder'? type of high-rail truck that you are now riding in? A Not necessarily anybody. A Yes. MR. KOZAK: Just for the record, this Q Do you prefer this one over dx old could be argwneiitative. I tliink it calls for truck? spcculation. A The older truck, I felt, was a bctter MR. SHAPIRO: okay. You havc your inspection vehicle. This is a more comfortable truck. *** Notes Pa@c 36 Page 37 Q What is preferable as far as coinfort'? the new vehicle, it looks like -- what is dc proper way to A Oh, air conditioning when it's 90 exit the new vehicle? degrees out in the rail country. A To try to maintain three points of Q That's a big one? contact, but it's going to be more difficult to make your A Yes. initial move facing towards it, tlimed towards it as you Q The other one wasn't air conditioned'? inaintain two points of contact, so that you are facing A No. it actually when you have completed your dismount. Q I mean in the cab, anything else that Q Is there a right and a wrong way to you prefer in the new one over the old one? disliiount from either side of that vehicfe, as far as which A What the manufacturer has been able to way you face when you are exiting? provide in the way of (inaudible) requireiiients, the softer A Wcll, what we like i@o be facing the seat. Aiid it's a nice truck. vehicle so you havc a greater opportunity to stabilize Q What about access in and out of it? To \j @yourself, if that is what you are looking for -- I guess get iiiore to the subject of our case, what about access iii that's what you are looking for. and out of the cab? Do you prefer the new oiie over ihe old Q Do you exit the vehicle facing into the one, or ihe old one over the new? vehicle? A Actually, I found the old oiie a little A The old one, yes. It Is the way that easier. I had a little more space to work witti. I have no the truck is put together. You have one left hand on the difficuliies with either. As you know, it was riever aii door, right hand on the steering wheel, and then step down issue with ine. This is a litfle lower to the grotiiid. with the left foot. Q I see that @re is an exterior foot Q The left foot, you are saying, from slep on l@ exit. Is that on both sides of that vehicic, your side, the driver's side? the new vehiclc? A The driver's side, yes. A Yes, yes. Q You step down with the left? Q So once you swivel out of vour scat oii A You would be able to open the door Notes Page 34 - Page 37 Tnmicw vs. Norfolk Southcrn RR multi-pagem Robcrt Forsythe, IV, 6/21/95 Page 38 Page 39 handle, and the door openinj it, and the right hand should Q That' s 0 site thr way you would be on the steering w@l, an you step down with your left always exit your vehicre at horrie? foot. A It's a taller truck. I don't have a Q Isn't that a little awkward, that you truck like that at home. caii't see where you are going? Q What kind of vewcle do you drive at A You can look ahead of time. home? Q Is there really a iiiandatory inethod as A Let's see. My wife has a Satum; I far as that goes? have a BMW motorcycle. A Looking ahead of time? Q You don't exit dc motorcycle the sarrie Q No, no, no. When you were exiting, do way. you have to exit fac in? A That's correct. Aftcr years of doing A That's 9 way the procedure has been this, that was the way I dismounted the truck. described to us. In this cak, as far as I know, we have Q Would you agree that dc more important already talked about whether I can name the rule. That's diing was the three points of contact, not whether you were as I understand what is expected. facing in or out? Q Did you always exit that way? A I don't kinow whethcr I would br @ one A Generally; generally. to makc that deterniination for cach and every person. I Q But not always? don't know that I'm the appropriatr one to make that A I can't account for every disinouni I determination. made wilh that truck. However, the automatic for me was to Q Well, no one ever demonstrated that you open the door with my left hand, keep niy left hand on the had to face in or face out when exiting the cab of that door, the right hand was on the steeriiig wlx-el, step dowii type of high-rail truck, did diey, during any safety with the left f(>ot. presentation'? Q Facing into the truck? A If it's the exact high-rail truck -- A Facing the truck. it was deinonstrating exit the cab of the gang truck -- Notes *** Q I see. Page 40 accident'? Page 41 A -- and whether or not that was A God -- October of 1993, I'm sorry. stifficieiit for the application to be inade as regards to Q That's just two months after his this truck may be pioblematic. accident? Q Where is the old high-rail tr-uck right A Right. now? Is it in Crewe? Q Did Mr. Joseph Winn start working with A The last time I saw it, it was, yeah. you right after Mr. Plaintiff's accident? Q Is it being repaired? A Yes, yes. A I doubt it; I doubt it. It's probably Q Once the accident occurred, were thrre to the end of its days of aclive service. any changes madc at all to this high-rail tj-uck in the way Q How long ago did it get replaced with of hand-holds or any other actual mattrrs? the ncw one.? A No. A Let's @. I got the new truck iii Q Okay. Since you became an assistant September last year. Actually it was last year. So thal track supervisor and utilized this type of truck, referring would be -- the new truck will have been here for two years to the older style, did you ever ride in the passenger side -- it was November '93. of the truck? Q Novembei- '93 would just be a few inoiiihs A Yeah, ever now and then. after Mr. Plaintiff was hurt? Q Who would drive? A This is '95. 1 would have had the A Sliin, Joe, or whoever. truck for two years this September. So let's sce, I kept Q So you would havc to exit the passenger the -- yeah, y6ah, I kept @ old hjgh-rail until side oii occasion, too, right? Sepiciiiber. I bought iny Satum in Noveinber, and I had A Uh-huh. flic trucl- before thal. So the truck -- I @,ot the ti-uck iii Q Let's look at these photos right here, October of 1994. this is Nuinber 2-C and D, that shows a vehicle widi dc Q All right. Afler Mr. Triiniew'@ I door open. Could you tell nie point by point exactly how Notes Page 38 - Page 41 Trirnicw vs. Norfolk Southern R-R Multi-Page@ Robert Forsythe, IV, 6/21/95 Page 42 Page 43 you would exit from thr passenger side of that truck'? A No, I didn't say that. You could, but A Opening the door, the right-hand would it may not be whrre you would have yotlr hand if you did it be oii the door, the right foot down to @ (deiioting then. photograph) Q You would probably hold on to the frame Q You are talking about the step that is instead? ihe very low step there? A The frame of dx truck. A Yes. Q So let nie step back through that. You Q Okay. would swivel out of the cfiair, and w@ch hand would grab A The right hand would be on the door, where? you then drop thr left foot to the ground, and then -- A It would be on dc door. Q Facing which way? Q Wbere would you bold on? A Facing towards the truck. And then A On the top of @ door h=, the left hand would trail down to the lining of the door or window. (Pointing to picture) the seat. Q You are tilking about the window Q You couldn't hold on with yoLLr left roller'? liand to that hand-hold, could you? A Or if the window is down, I place my MR. KOZAK: l'in sorjy'? I don't iiiider- hand on top of the window in its down position. stand wliat you're talkiiig about. Q There is no hand-hold inside of the MR. SHAPLRO I'm talkiiig about the door for you to use with your right hand, thou@ is there? hand hold on the left outside of the door. A There is the one up above h=. I'm A I hold on to that. You could. not sure that I would use it, but somebody clse might. Q You couldn't reach the gound, could Q Do you think that that would be a you'? position that you can get your hand into actually step A Depending on dv height. I doubt it. down? Q You doubt you could, you say? A You can. It would be difficult. Notes Page 44 Page 45 Q So there is your right hand, you just because I was preparcd to go down. I was on the giround described. Now, where does your right loot go? before Slim, so I didn't inake a practice of observing Slim A The right foot would be to the treadlc dismount the truck. of the well, the floor here. Q I'm not asking about practice; I'm Q And your body is facing itito ilie truck'? asking about, did you ever see him exiting the truck in A Correct. both different ways, that is, facing in and facing out? Q Aiid theii where is your left hajid'? A Yes, I think so. A Your left hand would go back to the Q A few times either way, or niunerous seat. As YoLLr left foot comes down, your left hand is oii times either way? the seat, the left foot descends to the @r@und. A A few. Not that I recall, it's not Q Did you ever see Mr. Triiniew exit die something that you inake that -- do you recall thr way you vehicle in that manner? got out of the car two weeks ago, and you'Te asking mc... A I saw Slim get out facing the vehiclc, Q Right. You wouldn't recall specific aiid iiiy recollection is f6r hiin gettiiig out faciiig away froiii dates and things, but you might generally recall it just the vehicle. occurring. Q You have seen hiiii get out both A I just have a vague recollection. different ways on nuinerous occasions, liaveii't you? Q All right. When he exited the vehicle A Well, generally I was on the grouiid, on those few occasions facing out, did you ever report out of the truck, before Sliin. that as a safety violation? Q Not always? A No, I didn't. A Usually -- controllijig the truck, I Q Under the company rules regarding ffi= ktiow w@n l'in goi'ng to stop. points of contact, does the rule say that you have to hold Q Right. on to your anns for any particula'r -- I'm sorry -- points A ]'in not hollering, announcing to Slijn of contact, if you have two anns in the truck, one foot on each stop and why. So generally I was the first one dowii the ground, is there any particular rule that says how long Notes Page 42 - Page 45 Triniiew vs. Norfolk Southern RR Multi-Page@ Robcrt FonAe, IV, 6/21/95 Page 46 Page 47 you are supposed to hold on with your ariiis before you let A It involves track stability primarily go'? during hot weather, but this is track stability under the A No, there is not. influences of temperature fluctuations. Q Have you seen this before? l'in showing Q What does that procedure say? you a docwtient entitled NorfoLk Southem C4Drporation NWNS A 'Mat outlines @ appropriat6 ballast Standard Procedures. sections, arnong other things, for different wms of track A LTh-huh. They are the standards. and different conditions. Tlx conditions @-fairly con- Q I'm sorry? cise, tangential curve and welded orjointrd. A Yes, I have seen this. Q Is that a onc-page docunient or Q Is that something that was ever part of multiple-page document? your training regar(iing your dutics as track iiispector? A No, at>out the sanie size of @s one, A Not so much t)art of mv training, but a maybe a little bit morc. (Denoting a docwnent) part of iiiy experience in my performing my job. Q Three or foLLr pages? Q And are soine of those the procedures A Yes, or five. fliat you were referring to regarding flic slope of ballast Q Do you keep a copy in the track? aiid things like that from t@shoulder? A Actually, right now, yes, I do. It's A Again, I'm not sure I understood where also put out by the Railroad in a book form, a papcrback the question was in there. book. I have one of those in the truck. Q Would this be where the procedures caitie Q I'm going to ask 'f you can make YO@ froin regarding inc@ out from the crossties, or the that available to your counsel if asks. shoulder, or dc slope, and things like that? A Oh, of course. A There are other procedures which are MR. SULAPIRO: i would ask that you applicable. Again, the first that comes to inind is a] I produce a copy of that when you c'an. Procedure 390. MR. KOZAK: okay. Q What is that'? All right. Vvrhat were the track Notes Page 48 Page 49 inaiiitenance gang numbers again? Are you a one-iiian gang? a railroad track, the fair assuinption is that it was a A Sliin was the onc-inan gang. train. So you have an FPA defect that has to be addressed. Q He is ft one-man gang? And the easiest way to address tWs particular defect is to A Yes. get down and cut down the @b off the tree. Q V4iat is it nained" Q What I guess I ain asking is, were you A TM-6 and TM-21. just traveling down the track and you observed it, or had Q \Vho is which one? you coine past ewlier and you had to go back for something? A TM-6 -- really, right now, there's jio A No, I observed it. longer the TM-6: it'S just TM-2 1. Ttierc were two gaiigs at Q Okay. the tiine of Sliiii's -- when Sliin left, TM-6, wliich was A And I had seen this particular tree Slim's, and TM-21, which is the track gang, the local gaiig close to the track before, and the train was making con- for track iiiaintenance. TM stands for track maintenaiice. tact with it. It was smafl, a little scrub thing. I'm not Q Let me turn to the day of the accident. even sure of its specics. It was small, two whacks with When you got to the spot where the incidciit occurred, I the bush ax si= tree, other forms of nxas@t... uiidcrstand ttiat you were going becau.@ there was soiiie brusli Q Let nie pull tMs map out here which that iiecded to be cut. was marked as Exhibit McGinley 1. Were you guys just -- at A Yes, correct. the tiine you stopped your vehicle with Mr. Triniiew on the Q Had you just visually observed that or day that this thing happened, were you heading toward had soincone told you to go to that spot? Richmond or away from Pichmond? A Visually observed it. A Toward Riclunond. Q As you were going dowii tl)e track? Q Okay. And were you toward the Riclimond A One of the FRA defects is vcgetation, side of Burkeville? brush, and rolling stock. Wben the traiii goes by aiid iiiakes A Yes. coiitact witli the overhanging Iiiiibs, obvi@usly that lias becti Q Heading back toward Richiiiond? siruck by soinething, and generally wheii il's that close to A The locations, there is a yard board at Notes Page 46 - Page 49 Triniiew vs. Norfolk Southem PR Multi-Pagc@ Robert Forsythe, IV, 6/21/95 Page 50 Pave 51 Burkeville, the 89 niilcpost. The yard extends back to the to BLtrkcville, put the truck on and ran it at Bur@fie@- 84 dot 8, and thr incident took place at the 89.2, so just and started inspecting nonk which is towards Richmond. outsidc of the yard proper. We had just begun our trip Q Was this your first stop or just back to Richmond. second stop, or right out of the yard, when this incident Q So would you estimate -- is that less occuffed? than a mile outside of the yard? A I don't tmnk we had stopped before A It's two-tenths of a mile exactly. that. Maybe -- I don't recall any odw stops. Q Had you been down in the yard and theii Q This occurred in @ morning though? licaded back up? A Right. -- Well, no, I think that mi@ A That's correct. not be true. I think around 12:45, so about an I;ur and a Q Okay. So take ine to the iiioiiienl that -- half down to Burkeville, and we were about an hour -- liad you _just coiiie down that inoniing froni Richiiioiid, also, to excuse iiie, half an hour or so getting out of Richmond. get to the y@ird? That would be at least easily 12:45. A Well, we were already on what is called Note: Off-r@rd discussion. a delayed schedule. When we come in later, as we were Q All right. Describe for me what addressing like what wc will have to cover the track during happeiied when you stopped your vemcle at that spot where tfiroughout the hottest part of ft day, and even if we t[iis incident occurred. Tell me everything that you know don'l have to cover thr entj're temtory, we want to look happCDed. al whatever track we do look at during the heat of the day. A I stopped. I don't think that I really So we coinc in at ten, a few minutes before, and we got into announced that I was going to stop. But the tree had been the truck and drove to Burkeville, put on in Burkeville, down, and I had myself i@hand, dismounted dw truck froin ptit flic truck on the rail iii Burkeville. my sidc, went back to get the bush ax, which is the Q You didn't travel dowli the track it.@It' appropriate too] for a small tree. 1 heard the sound of lo @,Ct t[icie" stojie skidding, rolliiig down the ballast line, down the A No, we drovc oii lhc lii,,,hw@iy to ,et slope of t@ ballast. I caine around the back of the, truck Notes Page 52 Page 53 to see why the stone had bccn dislodged, saw Sliin, or tree and asked him, how are you'? Cliiitoii, sitting on ilic ballast Iiiie several feet away Q How long did he stay seated like that? f'roiii t[ic door of the truck. Q A ininute, minute and a half, I guess, And I weiii to Sliiii aiid asked Iiiin if hc inaybe a little longer, iiiaybe two -- soinewhere in the range was all riglit. He nodded assent that @ was basically all of a ininute to two and a half ininutes, I would guess. right. Aiid I suggested to hiin that I)e stay slill, to Q Did he give you any furdicr detail further assess his condition. I stayed with hiiii for aabout how he had slipped, I niean besides what you have just brief while, then went to cut dov;n the sinall tree. Sliin said. had risen to his feet. Once again, I inquired, how are you A He said his foot had gone out from doing, how are you? He did state that he had felt a pop as under him. he fell, or tried to regain his balance by grabbing the Q I know it would have been appropriate, doorframe of the truck. but did you ask Wm was he holding on at that point? Of colirse, it was soine coiieern to inc. A No, I didn't. I thiiik lie ic)ok some more time lo get himself togetlier, get Q When is dc next time that you heard an assessinent of his conditioii, or gain liis a@sessinciii ot' A anythiiig about what he was saying about how the accident Iiis condition. He then reiiioulited the trLIck aiid pr 'had happened? 0 towards Ric[iinond. A Sliin began lo indicaie that his back Q Isii't he norinally lielpiii-, yoti witli was feeling a little stiffer by ft time we got into - reiiioviii- the brush once you cut it? around Aiyiclia, which is about the 104, s6it was 89 to 104. A YeS. And the concern was -- we didn't do a whole lot else on the Q Did he do that for you? way back to Richmond, inspected the track. A No. I asked him to stay pul. This is Q He tried to continue working, didn't a small iree, and there is no 91rcat einergency, and there he? was no need for him to trouble with it. He was taking care A He cut down, I think, a bainboo thing or of Iiiiiiself iii that poini, getting up. Aiid I cut dowii the something that was hanging over Lhe track in Anielia. And I Notes Page 50 - Page 53 Trimicw vs. Norfolk Southern RR Multi-Page@ Robcrt Forsythe, IV, 6/21/95 Page 54 Page 55 asked him not to exert himself. Yeah, he was willing to Was that a routine that they werc following or something, give mc a hand with whatever I stopped to do, l'in sure. or did he call her? But by the time we got close to Richinoiid, Slijn had agaiii A No, he called her. indicated that he was feeling a little stiffer in his back. Q Why was that, just to help him so he And at that time it seemed to bc the appropriaie thing to didn't have to drive, or what? do to go ahead and file an injury report at tiiis point, A Now, let me review my memory on that. whether or not it resulted in a serious injury or a At that point, Slim's old Buick Skylark was rlinning reportable injury or what, just that the inciaent be erratically. He was getting a ride back and forth from identifiable. work from his wife. And I can't say that my niemory is Q So at that time did you guys r-ontact -- accuratc, that he called Ms. Plaintiff; she miy have been what did you do then? on the way down there anyway to pick Slim up. Slim was A We contacted the division engincer's going on vacation that ev@ing- office in Roanoke to let him know that, oT to Ict thein know Q 'Mat was a Friday? that we would be filing an incident report. A That was a Friday. And I can't say Q And what happencd next as far as that I vouchsafe Lhat I remmber making a phone call to Ms. cojyuyiuiiication with Nlr. Paliner or anyoile else about the Plaintiff, or Steve making a phone caU to Ms. Trk&ew. And accident? she was, at that point, picking Slixn up because his car was A Well, I wrote a statement and Sliiii, not running very well. we surnmonsed her or she willi liis wife, iiiade a brief stalciiiciit. The blaiiks were caine on her own, Ms. Triniiew was there to hrlp Slim fill filled oil ilic forms -- out @ injw-y report, and making a statement, and drn Q Riglit. transport hiin home. A -- identifying weather coiiditiotis, tiliie Q What kind of vacation day, or vacation of day, !]Tid areas, and so forth. And then he weilt lioinc was he scheduled to take the next day? with his wife. A One week. Q Did she coine to pick hiin up that day? Q He was scheduled to take one week ofP *** Notes Pagc 56 Page 57 Wkre was he going'? handle with his right hand as he went down. As he tried to A Slijn said soinethijig about goijig reach the doorframe, he felt a pop, @r in that general fisliiiig. But he LLsually stayed around the liouse iiiost of position he had felt a pop in his oack. the iiine wlien he had vacation. It may have been ihe beacii Q Did he say w@r he was exitin that time. facing into the vehicle or facing out of the vel'cle, that WITNESS FORSYTHF,: (To Mr. Triiniew) It you mcall? inay have been the beachdiat tiine'? A At that particular point, I don't think MR. KOZAK: CTo the witness) You have that was a part of the report. That inforination became to go on your own memory. part of the record later, during the investigation. WITNESS FORSYTHE: Right. Q What did you understand him to say at Q So when you were back, filling oul the the investigation? report, did you hear him give his version again to Mr. A I understood that lc was facing away Palmer or anyone else? from the truck. A Yes, yes. Q All right. Wouldn't Mr. Paliner have Q Before everything was written dowii, did asked hiiii those details at the firsi occasion? Palmer say what happened, and you all were standiiig lhcre'? MR. KOZAK: i,m going to object to the A Excuse me? Again? question. Q In other words, did Mr. Paliner ask Q You did not know which way he was again what happened while all du-ee of you were together? facing? A Yes, yes. A Tbere, the first concem is Mr. Q What do you remeinber Mr. Triiniew Plaintiff's well-being. saying? Aiiything additional? Q Right. A Just essentially that he had fell, his A And, of course, the concem that therc foot had goiie out froin uiider hiin, that lie had iried to is a possible injury. No, that is not necesswily an auto- recover liis balance by grabbijig the doorfraiiie or the iiiatic question -- Notes Page 54 - Page 57 Plaintiff vs. Norfolk Southern RR Multi-Pagc@ Robert Forsythe, IV, 6t2l/95 Q Riot. Page 58 NOTE: Norfolk and Southrrn Page 59 A -- in my opinion. NwNs standard Procedures is identified as Q I saw in the investigation, I think it Forsythe Deposition Exhibit Number 1. was -- I'm not sure it was the investigation, but you said, MR. S@IRO: Let me take one moment you mentioncd dc ballast had been dumped since March of and talk to my client. That could be it. Okay? 1993, in that area where he had fallen. wrrNESS FORSYTHE: okay. A LTh-huh. NOTE: N4r. Shapiro and Mr. Plaintiff Q You had been dirough that area, I take leave dw room at 2:30 p.m. Upon thcir rcturn it, on prior occasions. at 2:40 p.m., the deposftion resumes as follows: A @anltimes. Q I have just got a couple of @gs. Q D d at have any iinpact on any of the For the record hcre, I have drawn a littlc diigr@ Mr. reasons that Mr. Triniiew fell, in yotir opinion? Forsythe, what purl)orts to be a rail, and @ two items A That the ballast had 6mn dumped? are supposed to'bethe rail and these are supposed to be Q Right. the crossties. And if you look on the track and look A Yes, it did. straight down in d)e drawing, if I can ask you to take this Q And what is that" pen -- this is not to scale in@inches or feet, but show me A That he stepped onto the stone, the gerierally wherc the ballast, according to your ballast, the pile of ballast was looser than he was used understanding, is supposed to be as far as the level. to steppiiig onto. Mr. Triiniew is also well aware of the A After -- this is aftcr the track has presenc,c of these things when he descended. been T and S'd. MR. SHAPLRO: Let ine go ahead and Q Pight. inark this as an exhibit to Mr. ForVffie's A And @ job is complete? deposition. I asked him about it. He was generally familiar with it, and I am going to ask you to mark that. i *** Notes Page 60 Page 61 Q Yes, properly-groomed track. it be just an inch or two above the crosstie? A After completion of T and S on ihat A Yeah. There are variables, how much particular stretch of track, it would be (inariciiig diagram), stone is available, how much is pulled up by the regu- and the same tmng bere. (Again marking diagrani) Whether lators, you can wind up with dw stonc below the level of this works out to be exactly, but -- the crosstie. Usually the last thing that is done by the T Q Oh, sure. What about this side? and S gang is that the track is ran over by what is called A There is no exact specifications oji the a broom, a grading broom, sweeping it back down. grade of the slope. Q That will sweep the ballast generally Q Okay. to right with the level of tti crosstie? A It's just that the material has its owli A Just about the level of the crosstie. iiatural grade. It falls to a natural slope, but ihere is Q Inside the rail and outside? no specification. A It's up to the regulator to shape or to Q When you put the indicatioii of ihe contour steps beyond the ties. Most of the crossties, ballast line from the shoulder, can you do a little bit of after die brooin has been passed over, it will have been a wave iii the line so we can know on the record -- swept, and that rock is exactly replaced. It is swept with A That it's my line? a very large inachine, and it will usually come to a level Q -- what you itiean there'? somewhere close to the tie. Sometimes they're lower, A Okay. (Again placing a mark on the r rlerally not above, but that can take place. But the diagram) m usually -- if anytwng, thr balidst would be a fittle Q What about between the shoulder -- what bclow the actual level of the crosstic, not by much. about the crosstie itself: Can you do a wavy line all the Q Okay. way across where the ballast would be, froiti the shoulder A Somewhere in that area. Q Cail you put a little line there? A Where? (Denoting diagram) Q In other words, on the slioulder, would A All right. Notes Page 58 - Page 61 Plaintiff vs. Norfolk Southem RR Multi-Pagc@ Robert Forsythe, IV, 6/21/95 Q Give it a letter or soinething, so the Page 62 (To the witness) She's gpi'ng to type Page 63 record will reflect it. up the transcript of the deposition, what has A Somewhere along these Iiiies, soiiietliiiig bivn said, and you have the right to read that like that. Oh, well. (Placing mark on diagrain) deposition and make sure that it is taken down Q Let me go ahead and mark the letter correctly, or you can waive that right. And put a line here, and that will describe the little we do normally reconunend that people waive it. squiggles that you just put -- So it's up to you. A Whatever, they may be interpretable WRTNESS FORSYTHE: Since I'm in dc around the level of the crosstie. (Placing'a mark on middle of War and Peace almady. diagram) MR. KOZAK: He waivcs it. MR. SH"IRO: Okay. I'm going to move NOTE: With the consent of the witness that this be marked as Forsythe Number 2. and by agreement of counsel for the respective NOTE: Diagram of rail and crossties, parties, the reading and signing of this - showing level of ballast, is marked as Forsythe deposition by the witness is heteby waived. Deposition Exhibit Number 2. And further this dcporient saith not. WrrNESS FORSYTHE: (Wfiting on diagram) SIGNATURE WAIVED BY AGREEM@ OF COUNSEL ANO THE Wl@. -niis would be after T and S is completed. MR. SHAPIRO: You just wrote, after T and S is complete, on Forsythe Ntimber 2. That's alf the questions that I have, unless counsel has o@rs. MR. KOZAK: we don't have any questions. Notes STATE OF VLRGMA, Page 64 C@ OF RICHMOND, to-wit: 1, D. McGuire, a Notary Public for the State of Virginia at Large, do hereby certify that the deposition of ROBFRT W. FORSYTHE, rv was duly taken and sworn to before me at the time, place, and for the pwpose hereinbefore set forth. I further certify that the signature of the witness to this deposition has been waived by agreement of counsel and @ witness. I further certify that the deposition was recorded and transcribed to the best of iny ability, and that @re were two exhibits identified duiing the taking hereof, said exhibits being retained in the files of counsel. Given under my hand this the day of July, 1995. Notary Public - State of Virginia My Commission Expires: Janliary 31, 1999. Notes Page 62 - Page 64