Southern Pac. Co. v. Schuyler

• Decision Date: 06 February 1905
• Docket Number: 1,088.
• Citation: 135 F. 1015
• Parties: SOUTHERN PAC. CO. v. SCHUYLER.
• Court: U.S. Court of Appeals — Ninth Circuit

135 F. 1015

SOUTHERN PAC. CO. v. SCHUYLER.

No. 1,088.

United States Court of Appeals, Ninth Circuit.

February 6, 1905

The defendant in error brought an action against the plaintiff in error to recover damages for personal injuries sustained in a train wreck on February 17, 1901. The defendant in error was a mail clerk on a railroad train which was ditched near Mill City by the washing out of a fill or embankment. The embankment was about 150 feet long, 24 feet high, and 16 feet wide at the roadbed, and sloped gradually downward and away. It was constructed at a point where a ravine or dry wash comes down to the railroad. A culvert three feet by four feet was constructed through the embankment to carry off the water which came down the ravine. Shortly before the accident, a volume of water gathered at the embankment in excess of the capacity of the culvert. The fill was undermined by the water, and gave way beneath the weight of the train. The complaint charged the plaintiff in error with negligence in failing to exercise proper care in operating its train, and in failing to construct and keep its roadbed in proper condition and repair. The evidence was that the ravine spoken of in the testimony as 'Willow Creek,' across which the embankment extended, was ordinarily dry, but that at times it carried large quantities of water which came to it from a watershed of considerable area. The culvert had been sufficient, however, for many years to carry away the water and prevent injury to the embankment. The train was wrecked about 6 o'clock in the morning. A culvert about three miles west of the wreck, having a capacity three times that of the culvert at the place of the wreck, was found to be washed out at about 8 p.m. on the day before, and thereby the train on which the defendant in error was carried had been laid up for some six hours immediately before the wreck. No inquiry was made by the train crew, the wrecking crew, or any one as to the condition of the culvert at the place of the wreck. The water was running in the ravine there at half past 1, some 15 hours before the wreck, and was rising rapidly in the creek during all of that time. On the afternoon of the 16th, ditches around Mill City, which is two miles from the place of the wreck, were running full of water. The temperature had risen, a warm wind was blowing rain was falling, and the snow was melting. There was a Japanese track walker, whose duty it was to patrol the track where the wreck occurred, from 1:30 p.m. to 6 p.m. of the 16th. He was not produced as a witness. There was evidence that the plaintiff in error had made efforts to find him, but had been unable to discover him at the time of the trial of the cause, which was some two years after the wreck occurred. It was shown that he was at Mill City for about five months after the date of the wreck, and that within less than three months after the wreck an action had been commenced against the plaintiff in error to recover damages for the death of a passenger who had been killed in the wreck. About five hours prior to the accident a heavily loaded repair train passed over the fill without difficulty, but the crew could not see down the embankment more than five feet, and did not see the water which was dammed up. There was evidence of a cloud-burst, which lasted about 15 minutes, on the morning of the 16th, at a point about 25 miles from the place of the wreck. It was the contention of the plaintiff in error that the accident was caused by an unforeseen and unprecedented accumulation of water resulting from an act of God, and that it had used due diligence in constructing the embankment and in patrolling its track. The foregoing statement is deemed sufficient to render intelligible the questions which are presented on the assignments of error.

P. F. Dunne, for plaintiff in error.

James G. Maguire and Houx & Barrett, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge, after stating the case as above, .

It is assigned as error, first, that the court sustained an objection to the admission in evidence of a written copy of a newspaper article which had been published in the Lovelock Tribune on March 2, 1901. A witness had testified on behalf of the plaintiff in error concerning the cloud-burst which occurred on February 16th near Lovelock, some 25 miles from the place of the accident. On his cross-examination he stated, whether voluntarily or in answer to a question does not appear from the bill of exceptions, that the editor of the newspaper came and interviewed him about it, and afterwards published an account of the interview. On his redirect examination the plaintiff in...