Southern Pac. Co. v. Cavin

• Decision Date: 19 March 1906
• Docket Number: 1,252.
• Citation: 144 F. 348
• Parties: SOUTHERN PAC. CO. v. CAVIN.
• Court: U.S. Court of Appeals — Ninth Circuit

144 F. 348

SOUTHERN PAC. CO. v. CAVIN.

No. 1,252.

United States Court of Appeals, Ninth Circuit.

March 19, 1906

This action grew out of the same railroad accident that was under consideration in the case of Southern Pacific Company v Schuyler, 135 F. 1015, 68 C.C.A. 409. James C. Cavin was, as was Schuyler, a mail clerk on board the train at the time of the accident, and received severe injuries in the wreck, for which he sued the railroad company for $40,000 damages, securing a verdict and judgment in the court below for $15,000. After the case was brought here, Cavin died. His widow was appointed administratix of his estate, and as such was duly substituted as the defendant in error.

In his complaint Cavin alleged that at the time he received the injuries in question he was a young, able-bodied well-preserved, and healthy man, was then earning $1,400 a year, and that his then life expectancy and period of such earning was 30 years. He alleged that by the derailment of the train on which he was at the time working as a United States mail clerk, and which he charged was caused by various alleged negligent acts and omissions of the railroad company he was instantly rendered unconscious, and that these were his injuries: 'His eyelid cut and the sight permanently injured; received a severe cut under the chin; left arm cut to the wrist from a point half way between the elbow and wrist; received injuries on the back, and to the spinal column, causing a partial paralysis of the lower limbs; and lungs; by said injuries plaintiff has suffered great physical pain and mental anguish, without any fault or neglect on his part, but solely through the negligence and want of care of said dependent.'

The answer of the defendant company to the complaint denied all of its allegations of negligence, and the extent of the plaintiff's injuries, and set up in defense that the accident in which Cavin was injured was the result of an unprecedented flood, and that in all particulars it had exercised the greatest care, prudence, and foresight.

The evidence in the case in respect to the cause and circumstances of the accident, is substantially the same as it was in the Schuyler Case, where they are detailed as follows: '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 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 the ravine there at 1:30, 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, 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.'

P. F. Dunne and Frank McGowan, for plaintiff in error.

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

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

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

The principal points made on behalf of the plaintiff in error relate to the giving and the refusal to give, by the court below, certain instructions to the jury. The one most urgently insisted on is the alleged error of the court in instructing the jury, as it did, that 'the derailment of the car in which plaintiff was riding at the time of the wreck in question, is prima facie evidence of defendant's negligence, and the plaintiff being himself in the exercise of due care, the burden is upon defendant to prove that it was not guilty of negligence, and that its whole duty was performed to guard against and prevent derailment; and the burden is upon it to prove that such derailment was unavoidable by the exercise of...