Chicago, St. P., M. & O. Ry. Co. v. Henkel

• Citation: 52 F.2d 313
• Decision Date: 14 October 1931
• Docket Number: No. 9089.,9089.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Parties: CHICAGO, ST. P., M. & O. RY. CO. v. HENKEL.

52 F.2d 313 (1931)

CHICAGO, ST. P., M. & O. RY. CO. v. HENKEL.

No. 9089.

Circuit Court of Appeals, Eighth Circuit.

August 24, 1931.

Rehearing Denied October 14, 1931.

Alfred E. Rietz, of St. Paul, Minn. (William T. Faricy and Warren Newcome, both of St. Paul, Minn., on the brief), for appellant.

Robert J. McDonald, of Minneapolis, Minn. (William A. Tautges and B. W. Wilder, both of Minneapolis, Minn., on the brief), for appellee.

Before KENYON and BOOTH, Circuit Judges, and DEWEY, District Judge.

BOOTH, Circuit Judge.

This is an appeal by defendant from a judgment after verdict in an action brought by appellee to recover damages on account of the death of her husband, Carl E. P. Henkel, which was alleged to have been caused by the negligence of appellant.

Henkel, at the time of his death, was in the employ of appellant as head brakeman on one of its freight trains, and was riding in the cab of the locomotive which was derailed by a washout. At the time of the accident, Henkel and defendant were both engaged in interstate commerce. The action was brought under the Federal Employers' Liability Act (45 USCA §§ 51-59).

Among the items of negligence relied upon by plaintiff were: (1) Failure on the part of the defendant to use due care in the maintenance of its roadbed and track at the place of the accident, resulting in a washout and a wreck of the train upon which Henkel was employed; (2) failure on the part of the defendant to use due care in inspecting said roadbed and track just prior to the accident.

The main defenses relied on by the defendant were: (1) Denial of negligence; (2) that the rain which caused the washout was an act of God.

Eighty-two assignments of error were filed; on this appeal reliance is had upon forty-six of them. These numerous assignments of error may, however, be grouped under a few topics, and it is to these topics that our discussion will be mainly confined:

First. Insufficiency of the evidence to establish negligence (1) as to the maintenance of the roadbed and track; (2) as to the inspection of the same.

There was substantial evidence tending to establish the following facts: Defendant owned and operated a steam railroad extending from Omaha, Neb., northerly to Sioux City, Iowa, passing en route through Blair, Tekamah, and Emerson, Neb. The wreck and derailment of defendants' train occurred between 3 and 4 miles north of Tekamah. Blair is 24 miles north of Omaha; Tekamah is 17 miles north of Blair; and Emerson 93 miles north of Omaha. Blair and Emerson were open stations on the night in question where trains could receive and send orders. The track was a single one, over which defendant operated four passenger trains and seven or eight freight trains daily. Defendant's train No. 20 left Omaha about or shortly after midnight July 13, 1929, destined for Sioux City, Iowa, in charge of Conductor McPherrin. It consisted of 23 cars, engine, and caboose. Kent was engineer, Denton was fireman, Cotter was rear brakeman, and Henkel, deceased, was the head brakeman. After leaving Omaha, Blair was the first stop. The conductor there received orders to run as an extra to Emerson with superior rights over No. 19, a south-bound train proceeding from Sioux City, Iowa, to Omaha, Neb. Being an extra, this train was not required to follow the schedule time of train No. 20. After leaving Blair, no stops were made until about 2:35 a. m. on the morning of July 14, 1929, at a point approximately 4 miles north of Tekamah, Neb., and about 1,200 feet south of a crossing known as Matthews crossing, when the engine ran into a washout and turned over on its side, and Henkel was caught underneath the tank, and as a result thereof was killed.

Tekamah creek originates about three miles north of Matthews crossing and flows south through Tekamah. The creek is about 150 feet west of defendant's track at Matthews crossing. At this crossing, a public highway crosses the track from the east to the west; and, continuing westerly, joins another road which crosses the creek.

The grade of the track at Matthews crossing slopes downward toward the south to a point several hundred feet south of the place of the accident.

The roadbed between Matthews crossing and a point south of the place of the accident was composed of cinders and gravel.

On the easterly side of the railroad, and both to the north and south of Matthews crossing, lies the Jensen farm. This farm consists of 320 acres, one-half of which is on the east side of defendant's track, and about 140 acres of this land is under cultivation. The Jensen house is located about 100 feet east of Matthews crossing, and about 50 feet south of the highway crossing. On the east side of the track, the farm extends about 40 rods north of Matthews crossing, and extends south to a point about 120 rods south of Matthews crossing. Most of the 160 acres on the east side of the track slope toward the track, and the land is hilly. Just east of Matthews crossing for a distance of about 60 rods the hills are somewhat steep.

There were three culverts in this vicinity extending under defendant's track to drain water from the east to the west toward the creek. The most northerly was culvert No. 162 3/8, which was located about 30 feet north of Matthews crossing; 1,430 feet south of that culvert was culvert No. 162½; and 305 feet south of that culvert was culvert No. 163. About 95 acres of the Jensen land east of the railroad drain towards these culverts and Matthews crossing; about 19 acres of this drain towards Matthews crossing; about 2½ acres drain towards the track south of Matthews crossing; and about 74 acres drain towards culverts No. 162½ and No. 163. The bulk of the water draining from the large watershed of 74 acres approaches the railroad track at the place where a flat spot is located at a point approximately 250 feet north of culvert No. 162½, where it forms a pool and then runs south off the flat spot to culvert No. 162½. In a light rainfall, 90 per cent. of the water from the 74-acre watershed would reach the east railroad fence at a point approximately 250 feet north of culvert No. 162½, and 10 per cent. of the water would flow directly to culvert No. 163 from the hills; and during a heavy rainfall, more than 1 inch of rain per hour, 75 per cent. of the water would reach the east railroad fence at a point 250 feet north of culvert No. 162½, and 25 per cent. of the water would flow directly to culvert No. 163 from the hills.

After the water reaches the flat spot about 250 feet north of culvert No. 162½, it could not get to culvert No. 163 without a ditch; but if there was a proper ditch or proper approach to culvert No. 162½, that culvert was of sufficient size and capacity to carry a run-off of water from 100 acres if the rain should fall at the rate of 1 inch per hour. To permit culvert No. 163 to flow full, there would have to be a ditch from a point 250 feet north of culvert No. 162½ extending to culvert No. 163, which ditch would have to be 12 to 15 feet top width and 5 or 6 feet deep; and if there was no ditch between culverts No. 162½ and No. 163, water from the flat spot could not get to culvert No. 163; and, in the absence of such a ditch, rainfalls would affect the track at the point where the washout occurred.

The soil on the Jensen farm is of clay and silt, and during rains the ground would scour toward the railroad track, and after rains deposits of silt, corn cobs, and the like would be deposited on the flat spot from the Jensen field extending out to the track, for a distance of about 300 feet north of culvert No. 162½. The east end of culvert No. 162½ was 1 to 2 feet below the ties and was down in a hole. The water draining toward Matthews crossing would flow on the highway westerly over defendant's track and would empty into Tekamah creek about 150 feet west of the track. Débris would wash down with the drainage water and such débris would be deposited at the crossing in the spaces between rail and planking.

About a week before the accident, under the direction of the roadmaster, for the purpose of giving the track proper drainage, the bulldozer — a grader — did some ditching work on the east side of the track, commencing at Matthews crossing and proceeding south for a distance of about 200 feet. No ditch was dug and no work was done by the bulldozer between the flat spot, located approximately 250 feet north of culvert No. 162½, and culvert No. 163.

A day or two after the bulldozer did the work on the east side of the track, defendant's roadmaster, without consulting the engineering department, ordered the section crew to dig a ditch just south of the public highway, at Matthews crossing, and parallel therewith, extending from the east toward the track and connecting with the ditch dug by the bulldozer, so that the water draining from the Jensen land east of Matthews crossing toward the crossing would be prevented from flowing over the crossing, as it previously had done, but so that such water would flow into such diversion ditch and then empty into the ditch dug by the bulldozer and flow south on the east side of the track toward culvert No. 162½. The diversion ditch dug by the section crew was about 65 feet long and about 3 feet wide, and it was shallow at the east end and deepest at the west end, having a fall of approximately 2 feet; and the ditch would carry about 15 or 20 cubic feet of water per second.

From Matthews crossing south to culvert No. 162½, the land on the right of way east of the track was grown up with weeds, and between Matthews crossing and the flat spot north of culvert No. 162½ there were large hemp weeds; and at the east end of culvert No. 162½, in addition to weeds, there were cornstalks and débris that had washed in; and the level land between culverts No. 162½ and No. 163 was also grown up with weeds. Any work done in previous years by defendant between Matthews crossing and culvert No. 163 on the east...