The Birmingham age-herald., 1910-10-14
SPECIAL TRAIN IS OFFERED THE COURT ID VISIT THE SCENE Judge Grubb, Counsel and Jury to Make 90-Mile Trip
 Today DISPUTE ARISES AS TO CHARACTER OF CLAY The Jury VIII Be Allowed to Determine Whether It Was Really Clay or Rock Which Was Excavnted
 By Tally

| The jury and court officers engaged in
 hearing the suit of Ben Tally against the
 Alabama western-Illinois Central-rail- road will go over the actual construction | between Haleyville and the state line to- day. special train was rendered yes terday afternoon by Walker Percy, coun- sel for the railroad to be occupied by
 the court and jury. This train will leave the Terminal station at S:30 o'clock this morning. It will return tonight. The visit of the jury to the scene of
 Ben Tally's work is to permit them to see the earth nearby and allow them to gather impressions in forming a con- clusion relative to the character of ex- cavations made in building the railroad.
 The chief disputed question just now is
 the character of excavating which was performed by Ben Tally in building a part of the railroad to Haleyville. The plaintiff in the case says that the work required the excavation of solid rock in few instances, and that to perform this he was forced to dynamite his way Lthrough the lines. The railroad has of fered testimony to show that the excava- tions affected only indulated clay, and that the classllcations made by the en- gineers were In every manner proper and correct.
 Percy Tenders the Train The special train feature of this de-
 markable hearing developed yesterday
 when MT Percy said he believed it would enlighten the jury to a very great ex- tent if they were shown the actual work,
 He thereupon rendered the court and jury a train to be operated to the scene of Tally's work. and the court ruled that such a trip may assist in deciding the cause.
 Caruthers Ewing for the plaintiff Gen. Luke Wright and Judge Almon objected seriously to the trip, and MT. Ewing stated that enough time would be con- sumed without an unnecessary trip to a point 90 miles from Birmingham. It is understood that MT. Percy will close his case upon the conditions which are ex- pected to be disclosed by the personal in spection of the jury.
 The train will be operated over the Frisco tracks to Jasper, thence over the NOTlHeTn AidOdifid tO I1dicJ fiiiCs thChSC over the defendants lines to point of con- struction.
 The classification of work performed three years ago, the defense claims, will | be easily identified at this time. MT. Percy said that it would be no difficult | matter for the jury to see the class of
 work performed then by conditions now. Will Carry . Pick | In order to sample the various spots on the line the court requested that pick be carried along, so the engineers could dig into the right-of-way and demonstrate on the ground the difference between the formations of the earth which consti- tute the most keenly litigated point in l the case.
 | The train will consist of the private car of A. S. Baldwin, chief engineer of the Illinois Central. and probably that of T. E. Brooks of the Louisville and Nash l ville The train while occupied by the court will be in effect a United States court
 | Lunch will be served the officers by the company, preparations having been made for that.
 | This instance is probably the first time | a jury has been taken from the local federal court to the scene of a disputed | cause of action Judge Grubb is evident | ly thoroughly convinced that the trip will be one of enlightenment as he hes- tated very little in ordering the removal | to the scene yesterday.
 | The jury will occupy special car and they will not be- thrown with the others
 on the trip. One engineer for the plain | tiff and one for the defense will be all
 lowed to mingle with the jury in order | to point out such points as may appeal to them
 | Those who will make this trip will in-
 clude: Judge William I. Grubb, Walker
 Percy, General Wright MT. Ewing.
 Judge Almon, A. s. Baldwin, chief en-
 gneer for the Illinois Central; Expert
 Phennee for the plaintiff, deputy United
 States marshal and the 12 jurors.
 Difference i'm CIassihcatiOn | The plaintiff claims in the case that
 in classifying rock and sand or dirt that
 the engineers classified rock as indulated
 clay. In view of the fact that the cost of excavation of clay is much smaller
 than rock the suit was started. If the
 plaintiff fails to establish this fact the
 chances are exceedingly remote for his recovery of damages. However, it Is be- ueyed if the plaintiff shows that rock | was actually removed, involving a great | cost which was classified as clay, then
 perhaps the jury will award him dam- ages. From the observations of those
 not connected with the case this would
 seem to be the issue.
 The defense began the introduction of evidence yesterday. The evidence of Major Elliott and Major Worthington, two
 engineers, was taken. They were among
 a party of engineers that inspected and assisted or recommended the classifica-
 ton. They dealt chiefly with this issue
 and gave very interesting testimony for the defense. They were examined at length by MT. Percy and afterwards cross-examined by Judge Almon and
 General wright. During the day Judge Grubb made several rulings as to law
 relating to the confning of the case to the subject matter of this identical suit. He early in the morning charged the inry. also not to take into consideration lany outside information that might be
 given or read by them regarding the
 cnse The court charged the jury that
 outside newspaper reports and idle gossip were to be ignored in the settlement of the differences being determined in a
 court of justice.
 [W. G, COURSON KILLED
 nv ET.EOTRIC SWITCH