Everetts v. Northern Pacific Railway Co.

Nuessle, J. These two actions were brought to recover damages, from the defendant company for its alleged negligence resulting in the drowning of two section men while patrolling tracks. The facts in so far as concerns the occurrence of the accident out of which both of the actions grew are identical. By stipulation both actions were tried at the same time on the same evidence and submitted to the same jury.. Separate verdicts were returned for the respective plaintiffs, and judgments thereafter entered on such verdicts. The defendant having moved for judgment non obstante in each case on the ground of the insufficiency of the evidence to support the verdict, which motions were denied, now appeals from each judgment and from each order denying its motion for judgment non obstante. In our view of the matter these appeals may be properly disposed of by a determination as to the propriety of the trial court’s action in denying the motions for judgment non obstante. The facts, viewing the record as we must, in the light most favor — 900 — able to the plaintiffs, are substantially as follows: The defendant railway company is a common carrier operating its line in interstate commerce through Billings and Golden Valley counties in North Dakota. The particular division of its line on which the accident in question happened extends from Dickinson, North Dakota, to Glendive, Montana, with division headquarters at Glendive. In June, 1921 A. O. McNeer and Thomas Everetts were in the employ of the defendant as section men. They were a part of a crew of six who worked a section of 6 miles from east of Medora to mile post No. 154, 4-f miles west of Medora. One Ziegler was the foreman of the crew. The defendant’s road west from Medora, crosses the Little Missouri river at Little Missouri, at an altitude of 2,290 feet, and proceeds thence in a westerly direction up the valley of Andrews creek, some twenty miles to Chaina, the altitude of which is 2,830 feet. Beach, altitude — 2,779 feet, is 5 miles west of Chama, and Wibaux, Montana, is the next station beyond Beach. The stations between Chama and Little Missouri are Sentinel Butte, 4 miles east of Cbama and 16 miles west of Little Missouri, at an altitude of 2,731 feet; De Mores, 9 miles east of •Cbama and 11 miles west of Little Missouri, at an altitude of 2,596 feet; Eider, 15 miles east of Obama and 5 miles west of Little Missouri, at an altitude of 2,405 feet. Thus it will be seen that tbe average grade of' tbe line from Little Missouri to Cbama is 27 feet per mile, and that the average grade from Eider to Sentinel Butto is nearly 30 feet per mile. There was at Little Missouri a section house in which the foreman lived, hut no station. There was also a section hous.e at De Mores. The stations at Medora and Sentinel Butte were connected both by telephone and telegraph lines with the division headquarters at Glendive, and the section houses at both Little Missouri and De Mores were on the same telephone connection. There was also a telephone booth near Eider on the same line. The line was so constructed, however, that while communication could he had from any of these telephone points with any of the other points, and one might listen in at any point on the line, yet it was only possible to ring any either point through the division headquarters. Medora and Sentinel Butte had a continuous twenty-four-hour service by telegraph and telephone. Andrews creek drains a basin extending from Chama eastward to — 901 — the Little Missouri. This basin is from 4 to 6 miles wide at Chama, and about the same width at Sentinel Butte and De Mores. The territory west of Chama drains westward into the Little Beaver. The divide runs approximately north and south through Chama. Ordinarily Andrews creek is dry excepting in the spring. Its original bed was very crooked, and between Little Missouri and Sentinel Butte crosses and recrosses the defendant’s roadbed many times. In some places these crossings were bridged, and in others the defendant had filled up the old channel with its grade and cut a new one for the creek. The country from Little Missouri to De Mores is very rough, and what is known as Bad Lands. From De Mores to Chama the valley is more level, and more or less under cultivation. There are many heavy cuts and fills here on the defendant’s line. The line has been built and in use for thirty-five years, and never before had there been a flood or a serious washout on this section. Early in the afternoon of June 17th severe rain storms occurred in Montana. These storms travelled from the southwest to the northeast. They were so severe that a washout occurred at Wibaux, and one of the defendant’s engines was derailed, blocking both the main and passing tracks. Later in the day and somewhere between 4 and 6 o’clock a very severe rain and hail storm prevailed at Beach, at which point there was a precipitation of almost 4 inches within two hours. The surfacing of the defendant’s tracks was washed out there, and the track inundated at places. At about tbis same time there was a very severe storm both at Chama and at Sentinel Butte. While no gauge measurement of the precipitation was taken, the rainfall at those points in the afternoon was estimated at 4 or 5 inches. At Sentinel Butte the rain continued at intervals until after 11 o’clock, being the heaviest somewhere between 8 and 10 o’clock that evening. These storms wore more or less local. The plaintiff’s witness, Kelso, was at a point 15 miles north of Sentinel Butte at noon of the 17th, travelling from that point southeasterly to Eider, which he reached at 6 o’clock, and he encountered no rain during that time. However, at noon or shortly thereafter he observed clouds and indications of a severe storm in the direction of Wibaux and Beacb, and later on in the afternoon in the direction of Sentinel Butte. There was no rain at Eider until 11 o’clock that night, and very little at Little Missouri. The witnesses are agreed that — 902 — the storms which occurred at Beach, Chama and Sentinel Butte during the afternoon and evening were the most violent and the rainfall the greatest that they had ever seen. On the afternoon of the lYth there were also washouts on the defendant’s line west of Glendive, and north of Glendive on the Sidney branch. When the washout and derailment :at Wibaux occurred, the superintendent of the division, Sloan, was at Mandan. The roadmaster was at Dickinson. He left Dickinson for Wibaux about 5 o’clock in the afternoon with an extra train consisting of a wrecking outfit and crew. He reached Medora about 8 p. m., and continuing on, arrived at Sentinel Butte at 9 p. m. It was then raining very hard. Regular train No. Y westward bound left Medora at •8:30, arrived at De Mores at 9:20, and at Sentinel Butte at 9:35. Train No. 1 westward bound had in the meantime been held at Beach. When Sloan heard of the washout at Wibaux he at once left for that point with his business car and a light engine. He arrived at Medora about 9 :18, and stopped only a very short time to talk with the dispatcher. He then proceeded westward. He was flagged at De Mores by the section boss there about 10 o’clock. He was flagged at the direc.tion of the roadmaster because the conductor of train No. Y on reaching Medora reported that the water was high in Andrew's Creek. It was then raining very hard, and as Sloan was afraid the track might be soft, he left his special at De Mores, and went on to Sentinel Hutto with the De Mores section crew' by motor car. However, he found that lie might have brought his train through safely. It rained hard all the way from there to Sentinel Butte. There was some water in Andrew's creek, but not enough to cause concern. He arrived at Sentinel Butte at 10 :45. In the Sentinel Butte yards there was water over the track in some places, and it was running through the cut west of there. Sloan at once got into communication with the dispatcher at Glendive, talking with him as to various matters connected with the operations of trains in that division, and as to conditions generally. The telegraph and telephone lines went down about 11 o’clock, and thereafter it was impossible to communicate with any points east of Sentinel Butte. Thus the defendant, through its section men, operators, dispatcher, roadmaster and division superintendent had knowledge of the unusual character and extent of the storms. It had knowledge of the fact that washouts had occurred at various Montuna — 903 — points, particularly west of Glendive and at Wibaux, of the violent-storm at Beach which flooded and washed out the ballast on its roadbed, of the character and extent of the storm at Chama and at Sentinel Butte, and of the fact that Andrews creek was rising and threatening the defendant’s road up the valley from Tuttle Missouri. At- about Í) o’clock the dispatcher at Glendive ordered out the Little Missouri section crew, told them that it was raining heavily between Sentinel Butte and Beach, and directed them to proceed westward and patrol the track to De Mores, and to call him when they reached Rider-, but gave no warning to them of the unusual character or violence of the storm, or that there was any danger in performing the duty as directed. It was the duty of the section men to patrol the track in time of storm to see that it was in condition, and to look out for -washouts. Defendant’s rule No. 9155, regulating the duties of section foremen and crews, and offered in evidence in the case, provides as follows: “Track Foremen. “No. 925. They must closely inspect sections as often as possible; pass over or send one of their men during storms when the road is liable to be damaged, at least once every day or more frequently during the continuance of storms if circumstances demand; pass or send one of their men over track under their charge, when damage thereto is threatened by storms or unusual conditions, at such intervals as may be specified by the roadmaster or other proper authorities, or that may be necessary to insure safety . . . Carefully examine road to see if safe for passage of trains. If any place is found unsafe, it must be protected at once by flagman with red signals and torpedoes.” The Little Missouri foreman called his crew together and left Little Missouri somewhere about an hour after the superintendent’s special passed through. It had not rained at Little Missouri, but there were heavy clouds to the west, and it looked threatening. They proceeded westward on their patrol, past mile post 154, which was the west end of their section, and on to the De Mores section, with which they were unfamiliar. Near mile post 152 they encormtered' a severe rain and hail storm. They took refuge from this storm in a culvert under the track and waited until it had passed, something like half an hour. — 904 — There was not much water in Andrews Creek at that time, not enough to run. They then proceeded on their patrol and reached the telephone booth close to mile post 154 near Eider shortly before 12 o’clock. In accordance with directions from the dispatcher, they tried to call him at Glendive, but were unable to do so. As a matter of fact the lines were then down. The operator at Medora was listening in at that time, and Ziegler talked with him but learned nothing of the storm to the west or of the condition as it existed there. They received no warning of there being any washouts. They were looking for broken rails or anything that might be wrong or for water, but they had not been told to look out for water. After leaving Eider they went on for some distance and came to mile post No. 157 where the roadbed cuts through a hill. At that time they saw water coming through the cut just ahead of them. Six or seven rails’ lengths back, one of the crew had called Ziegler’s attention to the water along the dump. When they saw the water coming through the cut they stopped the car, turned it around, and started back. They proceeded only a short distance to the point where Ziegler’s attention had been called to the water along the dump. The water was then running over the track with such force as to stop the car by pressing the wheels against the rails. All of the crew got off the car and endeavored to flee eastward down the track to safety. Ziegler and two of the crew reached a high point on the right-of-way a few rail lengths further on where they remained until morning. Everetts and McNeer and one other of the crew were swept away by the water and perished. Just about or a little before 11 o’clock after Sloan reached Sentinel Butte, he talked with his conductor, whom he had left at De Mores. The conductor reported that the water was getting high at that point. Shortly after that the lines went down, and it was not possible to communicate with anyone to the east. Sloan sent Youngblood, the De Mores section foreman, back with his crew. They went a little over a mile from Sentinel Butte but discovered a washout and returned. Thereafter and a little after 2 o’clock Sloan himself with the De Mores crew started east. They went as far as they could with their motor, within a mile of De Mores, and walked on to Eider. They found that ■especially from De Mores eastward a great deal of the line was washed out. The tracks were torn and twisted, and there was every evidence — 905 — of a tremendous and irresistible flood. It appeared later that practically fifty per cent of the track between Sentinel Butte and Little Missouri was washed out. This track had been built and in use for nearly thirty-five years, and there had never before been a washout on that section. The testimony shows that this was, with one exception, the worst washout that had occurred during the whole life of the defendant on any of its lilies. These actions were brought to recover damages on account of the deaths of McNeer and Everetts thus occurring. The particular negligence alleged by the plaintiffs on which they base their rights to recover is stated in the respective complaints as follows: “That the defendant knew and should have known that said cloudburst and said great fall of water along its main line between Sentinel Butte and Wibaux would cause a great flood in said Andrews creek, and that in the narrow passages along said creek that said flood would rise many feet above the roadbed and tracks of said defendant; and that the defendant knew and should have known on the night of June 17th, 19ál, when it ordered the deceased and other members of said crew to proceed west from Medora along said track in the night time that deceased and other members of said crew would be in imminent danger of being trapped and destroyed by said flood; that notwithstanding this knowledge, the defendant negligently sent the said deceased and other members of said section crew out upon said trip of inspection, and into what defendant knew to be a veritable death trap, without cautioning or warning them; that deceased and the other members of said crew had no notice, knowledge or warning of any kind that said flood was coming or was expected, or that it might occur; and that said deceased met his death because of the negligence of the defendant, its officers, agents and servants in sending the deceased and other members of said crew into said flood without warning.” Thus it will be seen that the plaintiffs predicate their cases upon the proposition that the defendant knew or should have known of the conditions that existed along and on the track in question by reason of the storms that had occurred or were occurring; that they knew or should have known of the effects of such storms as regards the running off of the flood water from the Andrews Creek basin, and the floods consequent therefrom in Andrews Creek;. that they knew or should have known of the danger that would be in — 906 — cident to the patrolling of the track in question that the Little Missouri section crew were directed to patrol; that notwithstanding, the defendant failed and neglected to warn the section crew and the members thereof of the conditions then existing and the danger incident to the carrying out of the orders thus given to them; that the Little Missouri section crew were wholly ignorant of such conditions and had no means of knowing of the conditions as they existed and would exist, or of the unusual danger incident to the carrying out of the order that had been given them; that as a consequence of such dereliction on the part of the defendant, the deceased met their deaths. The defendant, on the other hand, maintains that the record does not establish any negligence which was proximately the cause of the accident and deaths; that it acted without negligence in sending out the crew, and did that which any reasonably prudent railroad man would and should have done under the facts as they existed; that the record fails to establish that the defendant knew or ought to have known that that which happened would happen, that the record fails to establish that in sending out the Little Missouri crew as it did, it knew or ought to have known that there was danger of their being injured and killed by flood; that further, the deceased section men assumed the risk of injuries incidental to their duties in patrolling and inspecting the tracks; that the accident and injury occurred by reason of such risk. In addition to their general verdicts, the jury were required to and did make four certain special finding's as follows: Question No. 1. “Was the duty of patrolling the track in time of storm one of the usual and ordinary risks of the business in which (McNeer, Everetts) was engaged?” Answer: “Yes.” Question No. 2. “Did (McNeer, Everetts) know and appreciate or should he in the. exercise of reasonable care have known and appreciated the danger of patrolling the tracks on the night in question?” Answer: “No.” Question No. 3. “Did the officers, agents or employees of the defendant company know or should they by the exercise of ordinary care .have known before or at the time of calling the section crew at Little. Missouri that the rain which fell would make such a flood of water that — 907 — tlie crew would be in danger of being drowned or injured?” Answer: “Yes.” Question No. 4. “If you answer Question No. 3 ‘Yes/ should they in the exercise of reasonable care have warned the crew of this danger ?” Answer: “Yes.” It will at once be seen, putting aside all other questions, that should question No. 3 be answered in the negative that the motions for directed verdict were good, and the plaintiffs cannot recover. If, therefore, on the whole record, viewing the same in. the light most favorable-to the plaintiff, there is no room for reasonable men to differ, but all must agree that the answer to this question No. 3 should be “No,” the judgment must be reversed and judgment ordered for the defendant. The decedents, McNeer and Everetts, were section men. A part of their duties was to patrol the tracks of the defendant, especially in time of storms for the purpose of determining the condition of such-tracks. They undertook and assumed the risks that were incident to the performance of this duty. Necessarily, when they started out on patrol on the evening of June 11th, even though they had no explicit direction to look out for washouts, they must have known that that was the primary prtrpose of their patrol. There were indications of heavy storms in the west, and they were advised that it was raining heavily at Sentinel Butte. There surely could have been no reason for their patrol in the westerly direction other than the possibility that the tracks might be soft and that there might be washouts. It was the anticipation that there might be washouts that caused them to be sent. Their duty was born of that anticipation. That being the case, they understood and assumed such risks as might be ordinarily contemplated in. the performance of that particular duty. Labatt, Mast. & S. 2d ed. § 1116 and cases cited. And no warning of the dangers ordinarily incident to its performance was required. Thomp. Neg. Vol. 8, §§ 4061 et seq. and cases cited. The defendant owed to them no obligation to> have the tracks that they were to patrol safe. They were patrolling the track to make it safe for train crews and passengers who might use the-track, and to whom the defendant owed that duty. There was no undertaking on the defendant’s part that there should be no danger to the Little Missouri crew. If the track had been wholly safe, and the defendant could have undertaken that there would be no danger, there — 908 — would have boon no necessity for doing that which they were to do. It was their duty to patrol in time of storm to see that the track was safe. That duty arose because of the possibility that it might not be safe. Therefore, there could be no failure of duty as to them on the defendant’s part, or any liability to them for anything which might occur, unless that which should occur were the result of extraordinary conditions of which they had no knowledge, and of which the defendant knew or in accordance with reasonable railroad experience ought to have known or apprehended. But the defendant did owe to them the ■obligation to exercise reasonable care under the circumstances; that is, while the decedents assumed the risks ordinarily incident to patrolling the tracks in time of storm, they did not assume extraordinary risks, risks which might have been obviated by exercise of reasonable care on the part of the defendant. Labatt, Mast. & S. § 1118 and cases cited; Carlson v. Oregon Short Line & U. N. R. Co. 21 Or. 450, 28 Pac. 497. Although the risks ordinarily incident to their employment wore .assumed by the decedents, nevertheless it was the duty of the defendant to warn them of any unusual or extraordinary danger which might arise by reason of their carrying out instructions and of which the decedents were unaware. In this particular case it appears that at the time that they were ordered to patrol the tracks westward from Little Missouri, they were wholly unaware of conditions in the upper end of the Andrew’s creek basin. It is true that they were advised that it was raining heavily at Sentinel Butte, but no other information was given to them and no warning of any kind. On the other hand, the defendant knew or ought to have known of the storms that had occurred and were occurring, of their unusual violence, and of the extraordinary rainfall; and if it should have known or anticipated that a flood would result therefrom which would endanger the decedents while carrying ■out its orders, it was the duty of the defendant to warn the decedents of such danger. 8 Thomp. Neg. § 4059; Dresser, Employers’ Liability, § 99. We are, therefore, confronted with the question that was in effect propounded to the jury as question No. 3, that is, should the defendant in the exercise of ordinary care and judgment, in accordance with the requirements of proper and reasonable railroading, have known or anticipated that the flood which did occur would follow? Did it fail to — 909 — do that which, 'under the circumstances and with the knowledge with which it was charged, would have been done by ordinarily prudent and cautious men experienced in that sort of railroad business then in hand ? The answer is to be determined, not in the light of after events, not by looking at tire consequence and reasoning back to the cause, but in the light of all the experience of the defendant and its agents and officers, by considering the causes and each of them as were known or reasonably should have been known to them prior to the occurrence of the catastrophe. The defendant had operated its lino of railroad through the basin and valley in question for many years, through all the varying seasonal conditions. It had never had any washout of any consequence in that territory. It had never experienced anywhere such a flood as occurred. On the one hand, it knew or should have known of the violent storms that were occurring on the afternoon and evening of the 17th of June. It knew'of the consequences attendant on these, storms west of Glendive, at Wibaux and at Beach. It was concerned as to the condition of its track from Sentinel Butte east. Otherwise, it would not have ordered out the Little Missouri crew. On the other-hand, while the rainfall ivas very great, and while these other washouts had occurred, no rain to speak of had fallen in the lower part of the Andrews creek basin. Almost two hours after the Little Missouri crew were called, and almost an hour after they had started on their patrol, the defendant’s trains had safely run over the track in question. At 9 o’clock the wrecking train, bound for Wibaux, had run over the track. A little later, its passenger train No. 7, running on its regular schedule, had run over the track. Its conductor had reported that'the water in the creek was rising, but on that particular run had found, the track in such condition that his train could and did safely run ar higher than the usual schedule. Later still, Sloan, coming in with his special, had seen no conditions to worry about as far as De Mores, to which point he had run his special; and then going further with the same sort of motor that the decedents used, he went on to Sentinel Butte, arriving there at 10:45, and 'had found no alarming conditions; In fact, the track had been such, in his judgment, as to have safely brought his train over. It is true that when he arrived at Sentinel Butte, lie found there had been a very heavy rainfall preceding that time; that it was then raining very heavily; and that the Sentinel — 910 — Butte section crew had reported that the water was over the track and ■coming through the cut along the track to the west of Sentinel Butte. It is also true that, talking with the conductor at De Mores, he learned that the water was rising at Andrews creek and coming up to the section house, but immediately thereafter the lines went down, and from that time on it was not possible to communicate with De Mores or any other point to the east. That being the case, that which occurred after that time cannot be chargeable to the defendant unless there was a dereliction in duty prior to the time when the lines went down and it was no longer possible to communicate with the Little Missouri crew. Respondent argues that even though it was not possible for the defendant to talk with Ziegler and his crew from the west that nevertheless Ziegler did talk later on with the operator at Medora; that if that operator had been directed to advise Ziegler of the condition that he could and would have done so. But it seems to us that if there was occasion for the defendant to advise the operator at Medora to warn Ziegler that the same occasion existed at a time when it would have been possible to have warned Ziegler directly from the west. If the defendant ought to have known that the lines would go down, then, prior to their going down it ought to have directed the Medora operator to warn Ziegler. On the other hand, if reasonably it cannot be said that it ought to have known that the lines would go down, then there was no occasion for giving this direction to the Medora operator. It seems to us that under the circumstances disclosed in the evidence, viewed in the light of the knowledge possessed by the agents of the defendant, it is not reasonable to say that the defendant should have known that that would occur which in fact later did occur. Neither can it be said that the defendant should have known that there was danger of such a flood as would be likely to injure the section crew or jeopardize their lives. The record contains no evidence from which it reasonably can be said that there was any duty owing by the defendant which was neglected. It is our opinion that fair and rational minds, considering the record in this case in the light most favorable to the plaintiffs, must draw therefrom but one conclusion, which is that the defendant did with respect to the Little Missouri section crew as would have been done by an ordinarily prudent and cautious man under she circumstances disclosed. — 911 — It follows that tlie judgments appealed from must be reversed and judgments of dismissal entered. It is so ordered. Johnson, Birdzell, and Christianson, JJ., concur.