xt73bk16mf8w_234 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. [199g] Albert Copley v. L&N, Letcher Circuit Court text [199g] Albert Copley v. L&N, Letcher Circuit Court 2016 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14/Box_22/Folder_7/71962.pdf section false xt73bk16mf8w_234 xt73bk16mf8w 1 . 1“.
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LETUHER ULRCUIT COURT.
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LETUHER UJLRC 131': COURT.
AL-JERT UOPLE‘I, PLAINTIFF,
Vs.
LEXINGTON s: :;Asu‘sm mummy w. A DEEMDAMS.
Amy-[gym 3214:9313’l‘HEgJUliiti SAM'L_E.__V_I_I_L_SO¢J ESChL
FEBRUARY 4th. ,I 91 o .

 J -«
LETUHER CIRCUIT COURT.
ALBERT uOPLEY, PLAINTIFF,
vs. Anomagfl'sasom m2; JURY BY SM'L M.w_I_Lson,Esg,
LEXINGTON & EASTERN RAILWAY 00., ETC., DEFENDANTS.
MAY IT PLEASE THE COURT, AND YOU, GENTLEMEN OF THE JURY:

I want 90 take occasion/first or all/to thank I
you/gentlemen/for your patience and polite attention during
the trial or this case. I have someeuimes thought during the
. trial it was a little bit unfair to have the Jury seated
there on those hard benches while the rest of us were
lounging around in these easy chairs. I realize that
possibly one member of the jury has been unwell,-partially
so, during the progress of the trial, and I know that has
made the performance of his duty all the more trying to
him. The Court, as you have heard, has allowed to each
side here an hour and fifteen minutes in Which to argue this
case. It reminds me of the story that is told of our good

- Democratic President when he was at the head of the great
Princeton UniverSity,-the great college of New Jersey-,and
some distinguished clergyman, as the habit was, came there I
on a Sunday to preach a sermon. As he waited tor the crowd
to gather in the college chapel, he leaned over to Preside“
Wilson and said, ”Dr.Wilson, how much time ought I to take?"
"Well", he said, "it is a tradition here at Princeton that
no souls were ever known to have ueen saved after the first
twenty minutes." If it were possible tor me to confine
what I want to say in this case to twenty minutes, I pledge
you my word I would do it, but we have been on this case,-

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a somewhat difficult uask,-for something like tour days,
and if I try in an hour and twenty minutes to cover the
evidence and the law as presented here, I trust you will
believe me that I have done the best I could to confine my
argument within a reasonable limit. Doubtless some members
of the jury have wondered why it was that we took up all -
morning in consultation with the learned Judge of this Court.
With that in mind,I don't doubt jurors many times wonder
why it is that so much argument and discussion goes on
between the Lawyers and the Judge, and perhaps, wait to let
’ you all get down to business. Now, speaking not only for
myself, but tor the others concerned, I think I can assure
you that our time here today, while we nave kept you wait—
ing, has been spent to good advantage. I think, gentlemen
of the jury, before I have Linished, you will tind that the
work that the Court and the lawyers have spent on this case
this morning, as represented and embodied in this Court's
instructions,—in its statement of the law,-of this case, hes
‘ very much narrowed and simplified the question which you)
gentlemen or the jury)have to consider and decide. That‘s
what we save been about. We have taken hours here to find
out exactly What this case is about, to find out and be
. prepared to tell you all in the Iewest possible words what
it is that you gentlemen have been brought here and have been
Empanelled as 9 Jury of Letcher County to decide.

I want to say this,-I know this is no child's play,
so far as I am concerned. Judge Dearing's task in this
case, if I understand it, is a comparatively easy one. It
is an easy thing in Aentucky, and before Lentucky jur es,

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to appeal to their sympathies, to appeal to their reelinge,

their Lellow-feelings for one who may be in distress. It '

is not a difficult thing to give vent to our emotions.

If the flag of the United States is carried down the street,

you don't have no have somebody DO come along and urge

you and stir you up to stop and cheer that flag. If you

see some one weeping in your presence, you don't have to .
‘ be gone up to andzggga "you must show your feelings,—your

sympathy.” So, as Judge Bearing turns here to that man's

lost leg, it will require no eloquence of his LO make your

hearts feel touched with a feeling of sympathy, for the

man is minus a leg. I say, that is comparatively simple;

that‘s easy; but my task,gentlemen of the jury, if I under-

stand it, is a more difLicult one. I am here as an

attorney for two corporations,-railroad corporations. I

stand here beforee this jury as a comparative stranger.

I can't bring any tears to your eyes, because I have got

no client here with only one leg. Let me say this, in

passing;however, if you will pardon me,-a personal afiusion—

I began making my own living when I was thirteen years of

age. I worked in a store where they had a freight elevator,

and in my boyish excitement one day I ran to that elevator

Just as it Was in motion)with two men on it, and Just as

I ran up to that elevator and put my leg over on it, one

of the men in charge of it, thinking only of my safety,

perhaps, or his outy to keep me off of that elevator, gave

me a push with his hand. Back I went,-that elevator moving;

an an instant the Z%§éé or my shoe caught in that elevator,

and in less time than I can tell it that YooF/was almost

ruined and my leg broken, and what Was the finst thing I

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said as i hopped around there on one [Got in the agony of
that pain and suffering? ”It is all my fault". Boy:_as I
Was, I had conscience enough 90 admit that those men on that
ele ator and the Company by whom they were employed were
not responsible tor my accident. It lamed me for over two
years. I went around on crutches just like our friend,
Copéy, is going on crutches today. Gentlemen, I want you

~ to know that I can appreciate the suffering he has gone
through. Although I have got my leg, I suffer yet from the
injury. I appreciate the fact that he has suffered men-
tally and physically as a consequence of this injury. .

I want to tell you this: I realize if I get a ver-

‘ dict in this case at your hands,it will be)not oecause your
feelings are aroused, but because your judgments have been
convinced. I well know that if you return a verdict here
for the defendants it will be because you have in your make-
up, not only hearts, but conscienceyithat you have the
courage and the honesty and the will to co your duty as

7 your conscience directs you, no matter who appeals to your
sympathies; that‘s what I will know and what Letcher County
will know.

Now, let's see, for a moment, the situation of these
parties. The plaintiff, Albert Copley,aas b01d you practi—
cally his life story. He uas told you that as Was a rail-
road man of fifteen or sixteen years experience,—not a casual
way-farer on life‘s road—life's high-way-who happened along
there that Sundayin August 1914, and in a thoughtless moment
tried to get on that train. When you come to make up your
verdict in this case, I beg you not to lose sight of the
fact that this plaintift was a man of titteen or sixteen

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years experience as a railroad firemen and a railroad en-
gineer. How many railroads had me worked for? The
Cheseapeake & Ohio, more than once, the great Pennsylvania
Railroad, the Philadelphia d Reading Railroad, upon which he
was promoted from fireman to engineer, the Baltimore & Ohio
Railroad, the Virginian Railroad, and the Great Northern
Railroad out in the tar western State of Montana. He knew ‘
what a ”Y" Was; he knew the purposes of a "Y", the use to
Which a "Y" is put,-a railroad "Y", such as we have con-
sidered in this case. He knew that the purpose there for
these trains in backing in and turning and going out was in

‘ order that the locomotive instead of being pointed in a
southerly direction, as that train came down this road,
might be reversed and point in the opposite direction. He
knew all that; he knew the duties of a brakeman and flag-
man frequently required them to get off the trains on the
ground and then catch the train while in motion and board
the train, as they have a right to do in the discharge of
their duties, and in obedience to the law.

He knew the law; the law charged him with the

knowledge if he had not learned it in sixteen years ex—

. perience,that persons who have nothing to do with the operatic:
of a train have no earthly right, and the Court has told
you that in the law of this case,-that persons have no
earthly right, unless they be employes connected with the
operation of the train, to get on or to get off the train
while in motion. Now, pardon me, if I remind you of some
of the pledges you gaVe at the beginning of this trial.
When Mr. Morgan questioned you gentlemen, each of you,

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upon your solemn oaths, you told him frankly and Without
equivocation, without any mental reservations, that you
would try this case Lairly; that you would not have regard
to the fact that the defendants on the one side are rail—
road corporations, and the plaintiff on the other side is
a man with but one leg; that you would not oe swayed by
your sympathies, but governed as the law requires, moording
to the law and the evidence.

Now,in line with those pledges,let me 1Sk you, as
you go along,to lose sight, just for a moment, of the
Louisville & Nashville Railroad Company, or the Lexington
& Eastern Railway Company, and consider this case as a case
between man and man, Albert Copley on the one side, and B.T.
Lutes,-Bernerd T. Lures, the flagman, on the other, because
the liability, if there be any, of these corporations, or
either of them, must depend upon What you find as to the
actions of Bernard Lutes. The corporetione were not there
except as they were acting through B.T.Lutee- Therefore, I
ask you in all fairness as we go through the evidence to
consider this case on its merits as a case involving Copley
on the one side and Lutee on the other side, and if you do
that, I oelieve that you will be in a position to Judge
this case fairly, impartially and accurately. 'Now,one
other thing before I go on, which may bring you to a con-
sideration of the instructions. In the time I move, of
course, I am going to try to touch those matters, and those
only, that in my Judgment will help you in arriving at a
true verdict, and those things only which in my judgment
are decisive of this case. In this connection, I think it

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is fair that We should tell you what are the issues in
this case,-what is the question that you are called upon
V to decide. Now, when we made our opening statements of
the case, gentlemen of the jury, it was stated by the
attorney for the plaintiff, on the assumption that the ques-
tion that would us before you when you came to the con- .
clusion of the case, would as whether or not the Railroad
Companies, or their representative, the flagman, had been
guilty of negligence, or, as they put it,-groes negligence, ’
in the performance of his duties at Neon when this man got
hurt. Now, this tug of war that we have had here this
morning has put a different complexion.on that. The learned
Judge, in the light of the evidence in this case, and in the
light of the pleadings, as we call them, which have been
filed here since you were adjourned on yesterday, has
presented to you in these instructions, not a question of
negligence at all, so far as the rights of these defendants
are concerned,but a question of wilful action,—wilful action
~ intentional action, purposeful action on the part of the
braxeman. The only Qgéig; in which negligence cuts any
figure ingthe case now uefore you,-—mark that, please,-the
only ;;§i3§ in which negligence cuts any figure, is2not so
far as the defendants were concerned, not so far as the
flagman is codErned, but only so tar as Mr. Copley himself
is concerned.
Now, let me see if I can make that plainer to you
by simply reading again the Law as it has been given by
the Court, and I take your time LO read this law oecause
it is this law that you have said shall govern you in making
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up your verdict. "The Court instructs the juryyothat means
in other Words, the Court gives new to the jury the tollow-
ing st atement as the law of the case;-now, first, "the
Court instructs the Jury that Albert Copley, the plaintiff,
had no right to board or attempt to board a moving train,
and take upon himself the risxyend hazards,"--the dangers,
the risks and hazardsjgncident to his getting on or attempt-
ing to get on a moving train? "and the employeeéf the I
defendants in charge of the train were under no duty to keep
a lookzout for persons or for him",-that is, for Copley,
"in attempting to ooard the train as plaintiff claims He
did.“
Now, it simplifies this case, gentlemen of the Jury,
if you take these instructions at their Lace value, and
that is what you said you would do; it simplifies it if when
you go to your jury room# to consider of your verdict in
this case you Will set down there and read that, «read it
over and comment upon it,-get the reel inwardness of that
instration, the real significance of that instruction, make
. your best endeavors to understand that instruction, and then
I believe the opening statement I made to you will be Lound
. to nave been verified. "The Court instructs the jury that
Aloert Copley had no right L0 oosrd or attempt L0 board .
a moving train",-why, you would nave known that if He had
not told you, wouldn't you?-“and take upon himself the risks
and hazards inoiient to his getting on or attempting to get
on a moving train". Wouldn't you have thought so without
being told? "and the employe",-that's Lutes, Copley vs.
Lutes, Lutes vs. Copley, that's the case you have here,
—8-

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"and the employees of defendant in charge of the train were
under no duty to keep a looksout for persons or for him in
attempting to board uhe train as plaintiff claims he did."
Now, that removes all of thSB questions {row the field of
argument. It simplifies this case. It puts this case, so
far as uhose questions are concerned, absolutely aside from
any debate here between Judge Bearing and myself. I can't
afford, therefore, to take up your time or the time of the
Court in arguing thOSe propositions,which involve both law
and fact, for there are other matters which await our
attention.

Now, What is it, then,--whst is it, then, that 1r.
Copley can rely upon or rest his claim for recovery upon,
if ne was in the wrong, as to all those things.? Here it
is: "but, yet, Should the jury believe and find trom the
evidence that the plaintiff did board and was on the steps
of the car of said urain,wbile the car was in motion)the
defendant’s flagman, agent and servant, wilfully,”-wilfully,
not accidentally, not negligently, but wilfully, ”and with
much Lorce/jumped against the plaintifyf/while the plaintiff
had hold of the grab iron, if they believe ne did nave hold
of same, and Knocked plaintiff loose therefrom and caused
him to fall from the train to the ground, if they believe
that he did fall therefrom, and he was run over and injured
by the train, they will find for the plaintiff." Now,
that's the sole question, so fer as the plaintiff's right
to recover in this case is concerned, that, gentlemen of
the jury, is the sole question, and the one question that
you have to wrestle with. Let me read it again: "but, yet,
should the jury believe and find from the evidence that the

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plaintiff did ooard and was on the steps of the car of said
train while the car was in motion, the defendant's flagman,
agent and servant, wilfully",-not negligently, or accident-
ally, but wilfully, “and with much force jumped against the
plaintiff, Copley, while the plaintiff had hold of the grab
irons and Knocked Plaintiff loose therefrom, you will find
for the plaintiff.” 1'11 come back to that again just in A
a moment.

Now, the next instruction is as to the measure of
damages it you find for the plaintiff. There is no need
for me to comment on that; the Court has read it, and it
need not engage your attention. 80 with the third instruct—
ion about nine or the jury being able to make a verdict;

' if nine agree and less than twelve, all sign it; if twelve .
agree, why, of course, one signs tor the jury.

V Now, this instruction is one which I think is worthy
of your attention. Now, "the Court turther instructs the
Jury"-that is, the Court givejyou the law in this case.-
Sometimes I think that jurors must wonder what that means,
to decide the case according to the law and evidence; the
law is not given you until you get to the end of the case;
what the law is you don't know until we get where we are
now, because that law that you swear to try the case by is
embodied always é§jthe instructions given by the Court;
that‘s What is meant by the instructions, the law of the
case)given by the Court. Now, "the Court further instructs ,
the jury that at the time and place, and on the occasion
ogmplained of, the defendant's flagman,ey£bat's Lutes,c"had
the right in the performance of his duty to get upon said
car steps it the time and place he did, as shown by the

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evidence." Now, don't that remove that from the realm of
speculation, or the realm of dispute? Why debate that
question? The Court says he had the light to do it in the
performance of his duties. That relieves us from the bur-
den, from the arduous task of debating whether he had the
right to do it or not, and relieves from your minds the I
task of having to dedifé whether or not he had the right
so to do, --"and if it became necessary for said flagman in
the discharge of his duties as.tlagman to eject the plain- ‘
tiff from the train on which he was attempting to ride,"-
put him off the train,-"or to prevent the plaintiff from
getting on said train, he had the right to do so, but in so

I doing it was his duty to use no more force than was reason— .
ably necessary to effect plaintiff's removal from the train,
or to prevent him from boarding same."
Now, do you get the sharp line there that separates
that law irom the law in the first instruction? The law in
the first instruction is, in order to return a verdict
against these defenfiants, you must believe that Lutes, the
flagman, wilfully, purposééégly, intentionally/jumped
against this plaintiff, and did that with much force; but
the law is not a one-sided thing; it don't put it in the
power of one man to hold another man responsible for his
injuries if the blame is all on his side. So, the law is
as stated by the Court, that he had the right in the per- ,
formanoe of his duties to Keep him off of that train, or to
2 put hi m off the train, provided he used no more force than
was reasonably necessary. The difference, gentlemen of the
Jury,is between the much force, the wilful conduct, and the
use of reasonable zeros in performing that duty.
' -lI‘

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, Now, again, "If the jury believe from the evidence
that but for plaintiff's attempt",-Copley's attempt"that
but for that,-“ save fior that,—"but for plaintiff’s attempt
to get upon the train while it was in motion at the time and
place and on the occasion in question, he would not nave beau
injured, or if the jury believe from the evidence that bad
it not seen through negligence,-" "through negligence on
the part of plaintiff, which caused or contributed",-helped,

, configbutfigéwhen you contribute to something you are helping

it, ”whiCh caused or contributed to cause,"helped to cause-
the accident and injuries complained of,- if you believe
that had it not seen for that, for Copley's own negligence,

V in jumping on the moving train,or, "through negligence on
his part", carelessness, recklessness,-those are we rds ‘.
substantially the same thing,-”that said accident or injnuflflug7
juries would not nave happened",-that then, that your duty
under the law, then, -you should go out now and remember
that here is a man with sixteen years experience as a rail—

. road men, not one of these fellow-citizens of ours; not
some of these tellow Kentuckians of ours who have had their
lives confined to the head-waters of some creek here, a
tributary of the North Fork,-bad no opportunity to ride on
a railroad, or to know how railroads are run, or how trains
are operated, and who might have tor the first time, per-
haps, become acquainted with the railroad when this rail-
road Was built up here a few years ago,-but a man who had
had sixteen years in running trains over roeds,~e man six
feet tell, -a man who weighed nearly two hundred pounds,-

a man of vigorous and healthy physique, right today with
his leg gone a picture of fine physical manhood,-with that
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type of man/with all that experience/if you believe that he
was negligent under the circumstances in getting on that
moving train, and that but for that negligence on his part,
today he would have been walking the streets or fihitesourg,
setting in this courthouse with two sound legs instead of only
one,-if you oelieve that, then the jury will Iind {or the
defendants, says His honor,in his instructions,”notwithstand-
ing the jury may also oelieve Lrom the evidence that defen-
dsnts' fireman willfully,(intentionally, purposely,}willtully I
and with much force jumped against the plaintiff, as set out
in Instruction #A given by the Court.”
V Don't you see this thing coming down to a narrower
and narrower point under this law? Didn't I tell you the
truth when I said our work here, our labors here this morning
had helped to simplify this case for you and to make it so
plain that there is not a man on this Jury, or, for that
matter, in all your county,who cannot understand that? I have
got no distrust of your common sense; it don’t take a Solomon
to decide a simple question of fact like this. All I hope
and pray for, Gentlemen of the Jury, saying it with all due
. respect, is that you have got consciences within your bosoms;
if you have, Judge nearing may talk here to the crack of doom
and I will not fear for the outcome of this case. 1
Well, let's draw it a little finer. I had a college ~
friend,Hiram Tye,of Williameurg,-some of you may know him,-
we were at the law school together. Hirmn is a fellow who
gets off some very smooth sayings,-has a lot of mother-wit.
I remember once he said, ”Wilson, the law is just common sense
spun out right fine." That's the law; the law is not a realm
of learning or knowledge that is way above the heads of people;
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that’s a mistake; the law is the most practical thing that
has ever been created by the human race. But the distinctions
and the questions are not the same. They differ. When you
come to the sharp point of difference, the real point of con-
troversy, Why the law is sensible; the law is common sense
as applied to such a controversy.

Now, let's see if we can’t draw it a little finer,-
if the Court has not drawn it Just a little finer. "The Court ‘
instructs the jury that if they believe Lrom the evidence that
at the time plaintiff was injured,-Mr.Copley—”at the time

‘ plaintiff Wes injured/he was intoxicated or under the in-
fluence of alcoholic or intoxicating liquorXL-there is some
difference of opinion as to when a man is intoxicated. Judge
Butler said, and said very properly, here the other day When
a question Was asked whether a man drank to excess,—he says:
"that's a tlexible question, an elastic question;vapcording
to my View of the matter”,said the Judge, "one drink is a
drink to excess." That's good doctrine for Letcher County,—
good doctrine for all Kentucky. But realizing the truth of
that fact, the Court don’t put the question of Copley's

I negligence upon the narrow issue as to whether he was drunk;
he don’t say, "If you believe that Copley was drunK"-and he ,
used the polite word of the parlon], he says, "intoxicated”--
“if you believe he was intoxicated,you cannot Lind a verdict
here tor this plaintiff; but not that alone, if you believe
that he was under the influence of alcoholic or intoxicating
liquor;—-a many a man has b0 his sorrow been under the in-
fluence of alcoholic or intoxicating liquor and has not been
drunk according to any definition of what a drunk is. I quoted
on a former trial of this case a verse as to than a man is

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drunk, and if Judge Butler will permit me I'll remind you .
again of that age-old question as to when a man is drunk.
”He is not drunk", the verse goes,--"he is not drunk who Irom
the floor can rise and drink and call tor more, but he is
drunk who prostrate lies without the power to drink or rise."
That's what we call a dead irunk, a man hopelessly and Help—
lessly overcome by alcoholic stimulant. That's one definition 4
of drunk, but here is another one--l don’t say this to amuse-
it might amuse you, it amuses me somewhat, it did when I Lirst
heard these things,--but, if possible, to help you get the
truth of this business. What does Mr. Copley tell you on
this stand? Now,mark this,gentlemen, we can't fly rig“t in
the face of stubborn facds; if we do, we get hurt; we do our-
selves and other people an injustice when we shut our eyes to
the truth. What does this man,—-and I don’t say it unkindly;-
let no one get the idea that I am saying a word Lhat I do say
unkindly,--I say, what does this man come here and ask you to
give him tifteen thousand dollars, or any other number of
dollars for)wnen He knoWS, as he admitted on this stand, that

‘ on the Iiight before he got hurt he received at Fleming through
the express agent at that point, not eight quarts, he corrected
meg-you rememoer I asked if he didn‘t get eight quarts of
whiskey marked/ior personal usslat Fleming on the 29th. day of
August,I9I4,-"No, no, Mr. Wilson, no, it/li§_§i§£ggn_pints."
Two pints,one quart, sixteen pints, eight quarts, eight quarts,
sixteen pints} Well, he wouldn't have you think, perhaps,tnat
he was such a greener at this business of drinking whiskey,
that He would walk around with a quart bottle in his pocket;
it would be tgyéonvenient, too many other fellows, maybe, that
would like to get 3 taste of it.-—But, I say here in this

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4
record you have a stubborn fact admitted by Mr. Copley him—
sexr that the day before he got hurt he had receipted by his
own signature,brought here and identified by Mr. Shay, for
sixteen pints of Whiskey markedlior personal use? It is
true, he said that Was tor somebody else, somebody else he
couldn’t tell us at once who that somebody else was, but on
reflection, after he had had some time to study the matter
over,he cmnes back and says that part of that whissey was for
Dross Martin, as I recall, an electrician, and the balance
for another gentleman whose name he Had been unable to find
out. Now,ne paid the charges,-the order tor the whiskey was
. probably prepaid before it came to Fleming; it Wasn't C.O.D.,

according to the express agent records,—but Tr. Copley paid I
the tortylnine cents charges on the torty five pounds of
Whiskey,--and it strikes me that if I had performed such an
accomodation as that tor any triend or casual stranger/I would
have at least taken the precaution to rind out the gentlemen's
name and to get my Iorty_nine cents back.

Now, let's see; that isn't all. This record has
established other facts in connection with his being under the
influence of alcoholic or intoxicating liquor. What does He
tell you Himself? He said, ”I had a whiskey glass full of
Whiskeytonot swinxey, not near—beer, not a soft drink, but,

"I had a whisxey glass full of whiskey at my house in Fleming
that morning; it was given LO me by Alfred Farley." That's
what he said. He said he had three bottles in all of swinxey,
as they call it, down at neon. He doesn't admit getting any
more whiskey. Now, what does Windy WEinstock tell you,--
Windy WEinstock, whose name strikes my fancy because he is a

' talkative fellow when you give him a lead,-but Windy is also

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an expert, it appears, on this matter of drinking. You couldn't
fool Windy about drinking. He would know whiskey from lemonade,
and when Windy came on this stand, what did he tell you? He
told you upon his solemn oath that on that Sunday morning down
there at Neon Mr. Copley had given him two drinks out of a
pint bottle of whiskey,~and where should that pint bottle have
come from but trom this collection of sixteen pints of whiskey
that Mr. Copley had gotten the day before? on, but that is not ‘
all. He got another drink of whiskey, according to the testi-
mony of Frank Edge. Strange to say,he diin‘t deny it; they

, didn't put him back on the stand to say whether he did or didn't
drink there with Mr. Edge. Do you remember Mr. Frank Edge‘s
testimony which was read to you as to what he had given Copley?
He, Edge,had a companion pint bottle, and he gave Copley a
drink out of his whiskey flask.

Now, gentlemen of the jury, to stick right to the
facts proved by this evidence, what have you? You have proof
that this plaintiff on the day before he got hurt receipts for
sixteen pints of whiskey. My goodness gracious, what are
facts worth if that don’t signify anything in this case? And

‘ on the day he gets hurt you have him starting out that pleasant
sabbath uay with a drink of whiskey down his throat-two drinks
with Windy weinstock and another drink with Frank Edge, and I
say it is not unfair to believe that what was left in that
pint bottle found its way down his throat before he got hurt.
He not only drank whiskey;-—now, I don't pretend to be an ex-
pert on this drinking Whiskey, but I have obeerved,-not from
personal experiendézrtnderstand gnu, but from observation in
others;--be didn‘t only drink whiskey, he drank, according to

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 4‘ "
his own admission, three bottles of sewinkey. As I told you
at the beginning of the trial, I don’t know what uwinkey is. , '
It is a new drink to me. I don't believe I have ever had the
pleasure of sampling it; but according to this proof, it is
probably Known as near—beer, or malt mead. I believe Robert
Yonts said they sold something up there at Neon that they
called swinkey that was not swinkey; they sort of slipped in
a bottle of beer between two bottles of swinkey,-slipped it in. I
They put something over that the law forbade;-but/be that as
it may, we know Lrom Copley that he drank tWo bottles of swinkey
* in the morning and one just uefore the train backed in.
Now, you remember this testimony; there was witness

after witness who on direct or cross—examination said, "Yes,
I Was with Copley that morning, I saw him at the swinkey joint,
I saw him at that tent, and I had seen him drinking swrnkey ",

‘ or, "I drank swinkey with him." Now, it is tair to believe
that there was some more swinkey drunk than three bottles,
but I am willing LO let it go at that. You take three bottles
of swinkey and combine it with a pint of whiskey, I want you

‘ to imagine the Kind of stew and fegfigtion you would start
going in your Vitals. What is that other truth about drinking?
Another college boy's piece of fun that probably originated '
as common sense, and contains in it a kernel of Wisdom and
truth. Mixed drinks,--you can drink, if I know anything about
intoxication at all,-you can drink six drinks of straight
whiskey to three drinks of whiskey and three drinks of any
other kind of drink you Want to put with it except Water; put
the water with it and you will get drunk quicker than if you
took the whiskey by itself. Here are tWo more rules: "Whiskey
on beer, the way is clear, beer on whiskey,rather risky.”

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*,
That's what we have in this case. Mr. Copley had his beer on
whisxey; he not only mixed his urinss, he put the wrong drink
last if he Wanted to be sober. If he had designs on the
railroad train of the Louisville & Nashville Railroad Company,
above all things/sobriety was demanded of him.

Don‘t that simplify this case somewhat? As/much as
y