Snohomish County v. Great Northern Ry. Co., 9929

• Decision Date: 05 October 1942
• Docket Number: No. 9929,9930.,9929
• Citation: 130 F.2d 996
• Parties: SNOHOMISH COUNTY v. GREAT NORTHERN RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

130 F.2d 996 (1942)

SNOHOMISH COUNTY v. GREAT NORTHERN RY. CO.

Nos. 9929, 9930.

Circuit Court of Appeals, Ninth Circuit.

October 5, 1942.

Leslie R. Cooper, O. D. Anderson, and Clarence J. Coleman, all of Everett, Wash., for appellant.

Thomas Balmer, Edwin C. Matthias, and Anthony Kane, all of Seattle, Wash., for appellee.

Before MATHEWS, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

This opinion covers two cases consolidated upon appeal.

Appellee, Great Northern Railway Company, a Minnesota corporation, brought two actions against Snohomish County, Washington, to recover damages alleged to have been sustained when one of the appellee's passenger trains was wrecked in said county and state by debris which was washed upon its tracks and its train after the collapse of a highway fill on December 28, 1937.

In one action, more than $3,000.00 was sought for damages to the train, roadbed and track. The other action, for more than $3,000.00, was brought to recover money paid out by the Railway Company upon claims for personal injury and wrongful death resulting from the wreck. We shall herein refer to the former action as the damage case and the latter action as the reimbursement case.

Both cases are based on the alleged negligence of the County in the construction and maintenance of a fill and of a culvert under and through the fill to carry the waters of a natural stream. The county highway was located upon this fill.

In addition to a general denial, the County plead affirmatively: (1) The contributory negligence of the Railway Company for failure to inspect its line and adjacent right of way, for failure to maintain a proper lookout in the operation of the train, and for using excessive speed and not maintaining reasonable control in the operation of the train in view of the wet weather prevailing; (2) that the Railway Company removed the lateral support from the highway which it was obligated to maintain under the terms of an alleged franchise, and (3) that the collapse of the fill was caused by an Act of God, to-wit: unprecedented rainfall.

The jury found for the Railway Company in the damage case.

By stipulation, the complaint, answer, court's instructions, verdict of the jury, and all of the oral testimony and exhibits received in evidence in the damage case were made parts of the reimbursement case record and made applicable to that case, thus leaving for determination therein, only the right of reimbursement. It is claimed by the County that since the jury found the Railway Company not guilty of negligence, the Railway Company acted wholly as a volunteer in making payments of damages to persons injured. By stipulation, the court, without a jury, tried this issue and thereafter the court found in favor of the Railway Company.

Fern Bluff, where the accident occurred, is a bluff located on the Skykomish River in Snohomish County, Washington. The Railway Company's line runs along the edge of the river, about forty feet below the bluff, and the County's road skirts the bluff top approximately paralleling the railroad track. Fern Bluff Creek runs through a culvert under the road, drops down under the railroad track and debouches into the river. At the point of the washout, the County road was built on a shallow fill, and under and through the fill the creek runoff was conducted through a 2 x 4 x 34 ft. board culvert.

Originally, the County road had occupied the site of the railroad, but under permission of the Board of County Commissioners, the Railway Company removed it to the bluff top and constructed its railroad approximately upon the site of the old County road. This new road was accepted by the County Commissioners on June 1, 1896.

In 1910, without consultation or notice to the Railway Company, the County put a 14-foot fill over the timber culvert. In 1915 or 1916 this culvert caved in, and the County, of its own accord and without consultation with the Railway Company, replaced it by a 12-inch concrete pipe, of the bell and spigot type, laid in two foot sections, without cementing or fastening the sections together. To the river end of the concrete pipe, the County in 1931 attached an 8-foot length of 12-inch corrugated iron pipe, five feet of which was inside the highway fill. After this replacement of the culvert by a concrete pipe, the water run-off was retarded and water began to back up so that at times it was six feet deep on adjoining property.

The train wreck with which we are here concerned occurred December 28, 1937 at four-forty a. m. Rain had been falling for eight or ten days previously and much water had accumulated behind the culvert. Before daylight on the eventful morning, the fill gave way, and gravel, rocks, logs, brush and cable which made up the fill and had held it in place, together with the impounded waters, were precipitated upon the railroad track. It is not known whether the break was coincident with the train's arrival at the point of the washout or before. It is known that rocks and debris were still moving when the train came to a stop. The last previous passage of a train was about 1:22 a. m., at which time the track was clear. The engine and several cars were thrown into the river, one car was completely demolished and others were badly damaged. The fireman was killed, and the engineer and eight employees of the mail service were injured.

Appellant claims under its first three specifications of error that: "The primary duty to restore and maintain adequate lateral support to the substituted County road remained continuously on the railroad". This assumes, of course, that the wreck was caused by the failure to furnish lateral support. This question of fact was submitted to the jury, on conflicting evidence, and the jury found that the wreck was caused not by the failure of lateral support to the bluff, but by the County's own negligence of its road construction. We shall not disturb this finding, which is amply supported by the evidence.

Appellant specifies as error the admission of that part of a statement of the witness Adams that

"Undoubtedly this the slide or cave in related herein was caused by the water backing up on account of the small pipe and the water seeping into the hill".

According to appellant, "A lay witness cannot be impeached by an opinion expressed on a scientific subject". Mr. Adams was a witness for the County and testified that the 12-inch pipe culvert always took care of the water of the creek and handled it satisfactorily; that he knew there never was at any time any backing up, seepage or any washing or leakage through the fill around the culvert; and that nothing had taken place before the slide that would make any change in this culvert in any way. Upon cross examination Adams was confronted with a written statement which contained the language, the subject of the claimed error. The written statement...