198 N.W. 685 | N.D. | 1923
Lead Opinion
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
Andrews creek drains a basin extending from Chama eastward to
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
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.
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
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
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
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
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
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.
Dissenting Opinion
Statement.
(dissenting). These two actions were instituted to recover damages from the railway company for its negligence resulting, through flood waters, in the drowning of two section-men, while patrolling tracks. By stipulation, both actions, upon the same evidence, were submitted to one jury. Separate verdicts were returned; in the McNeer Case, $1,000 for plaintiff; in the Everetts Case, designated amounts to the widow' and children, aggregating a total of $16,000 for plaintiff. The railway company has appealed from each judgment and from each order denying judgment non obstante. The two actions have been presented and submitted to this court upon one record. Involving similar facts, they will be jointly considered.
The facts are: In June, 1921, the railway company, a common cai*rier, was operating, in interstate commerce, its railroad through Medora, North Dakota, and Beach, North Dakota. Ed McNeer and Thomas Everetts were then in the employ of the company as section-men. They were a part of a crew of six with one Ziegler as foreman who worked a section of 6 miles on the railroad extending east of Medora and 4f miles west to milepost No. 154. The stations between Medora on the east, and Beach on the west, with their respective elevations of the track at each station, and the respective distance of each station from Medora on the east, are as follows: Medora, 2,290 feet; Little Missouri, 2,290 feet, about one mile; Bider, 2,405 feet, 6 miles; Demores, 2,596 feet, 11 miles; Sentinel Butte, 2,131 feet, 16 miles; Ohama, 2,830 feet, 20 miles; Beach, 2,119 feet, 25 miles. Little.Missouri is not a station; but there wa.s located there the section house, where the section foreman lived, and a coal mine. At this point the Little Missouri river crosses the railroad right-of-way. In the section house at Little Missouri telephone connections existed with the headquarters of the railway division at Glendive, Montana (41 miles west of Beach). Likewise, in the section house at Demores. There was
Between Medora and Beach the railroad traverses some rough country. At or near Demores it traverses .the so-termed “Bad Lands.” Generally speaking, from Sentinel Butte, eastward, to Little Missouri the railroad follows the line of Andrews creek which empties into the Little Missouri river. About equi-distant between Beach and Sentinel Butte there occurs a dividing watershed where eastward, waters flow into the basin of, or into Andrew's creek and thence eastward until they arrived at the Little Missouri river ^westward, the drainage is into-Little Beaver creek. From about four miles west of Sentinel Butte where this dividing water-shed exists, waters are drained down the valleys and runs and draw', .also into Sentinel Butte creek; all thence into Andrew's creek which pursues its course along the track here and there some 15 or more miles until it empties into the Little Missouri river. Ordinarily Andrew's creek is dry excepting in the spring. In the construction of the railroad through this territory between Little Missouri and Sentinel Butte the roadbed follow's, in a general way,
According to the testimony of the trick dispatcher, when he came on duty at 4 p. m. on June 17th, 1921, he was informed that an engine had turned over at Wibaux (some 10 miles west of Beach) which tied up traffic. He also mentioned a berry train held at Glendive on account of a washout. About this time the roaclmaster was in Dickinson (some 40 miles east of Medora). He was .called out between 4 and 5 p. m. on that day to accompany a wrecker and bridge gang westward for purposes of removing the engine at Wibaux that obstructed traffic. He testified that the nature of the damage where the engine was turned over was that the entire grade had washed out where it crossed a small creek that had been filled in; that the engine ran into this, turned over, and blocked the main line on the passenger track. He left Dickinson about 5 p. m. on an extra train consisting of a wrecking outfit, a bridge gang, two or three cars of cinders and a car of ties. He arrived at Medora about 8 p. m. and did not meet any rain. When they reached Sentinel Butte at 9 p. m. it was raining hard. There he talked with the chief dispatcher and advised him that it was raining heavy at Sentinel Butte. In the meantime the Little Missouri section crew, with Ziegler as foreman, had performed their work without encountering rain and finished their day at 5 p. m. at the section house. That afternoon at Beach, North Dakota one witness testified that it started to rain about 2 p. m ; thence from 2 p. m. until 5 p. m ; thence from about 7 p. m. until 8 p. m ; that from 2 p. m. until 8 p. m., it ’was the heaviest rain he had ever experienced; that there was much, water in the streets and the tracks of the railway were under water and the roadbed washed
The foreman of the Little Missouri section crew testified: — The dispatcher gave orders over the telephone to patrol the tracks between Medora and Demores. He fixed tbe time about 9 p. m. Otherwise he testified, however, that it was about fifteen minutes after tbe superintendent’s special went through. Tbis special arrived at Medora at 9 :18 p. m. He called tbe crew, got his motor ready and left within an hour. The dispatcher told him to call the dispatcher at Hider and Demores; the dispatcher advised him that it was raining heavy between Beach and Sentinel Butte. He gave no warning in regal'd to high water and he had none until he met the flood. When they had proceeded upon their patrol trip about to mile post No. 152, they encountered a storm which lasted for about one-half hour. They got in a culvert and remained there until the storm abated. Then they proceeded westward. Their own section ended at mile post No. 154. Near Hider (which is about mile post No. 155) there is a telephone booth. There they stopped. The foreman attempted to telephone to the dispatcher. He could not got the dispatcher over the phone. He talked with the operator' at Medora for a few minutes. The foreman told him who and where he was. He learned at that time that there was something wrong with the wires. This was between 11 p. m. and
At this place where the track goes there was a cut about 90 feet through; the sides of the cut were about 15 feet high and the cut about 1(3 to 18 feet wide. When they saw the water, it was coming down this cut eastward 2 or 3 ft. high.
As a result about 50 per cent of the track was washed out between -Sentinel Butte and Little Missouri. The stenographer, within three or four days after June 17th, took kodak views of the roadbed and the damage done between Little Missouri and Sentinel Butte. These views disclose an extensive damage done to the roadbed and to the track. In places the roadbed was seriously washed out, the track carried away off the roadbed, twisted, and torn in many and various shapes. This is particularly evident from milepost No. 156 to No. 159. From Andrews creek bridge, at mile post No. 151, about a mile west of Little Missouri to another bridge about a mile east of Sentinel Butte tbe track, for a distance of about 13 miles where it generally follows this Andrews creek, had to he rebuilt. Particularly, all the bridges and culverts were washed out. There was some track washed out west of Sentinel Butte.
In the record there is evidence through the testimony of the dispatchers, rho operator at Sentinel Butte, the roadmaster, the superintendtnt and others, to the following effect: — After the dispatchers came oil
One of the Little Missouri section crew testified that they received no warning of there being washouts; as they were, patrolling the tracks, they looked for- broken rails or anything that was wrong, or for water, although they were not warned to look out for water; after they came 10 mile post No. 157, where the track goes through a cut in the hills, they saw the waters coming just a short distance ahead of them; they stopped the car, turned it around and started back. They proceeded only a short distance; the waters stopped the car; the water was over the track then; he and Everetts got off the west end of the car; Everetts was ahead of him; he went down between the ties; he pulled him out;
Another of the Little Missouri section crew, as a witness for the railway company, testified that, as he was riding on the motor car in front at this place west of Rider with a lantern in his hand, he saw the water along the dump there; he exclaimed “AVhat is it?” the foreman said “We will go on a little further;” then they must have travelled six or seven rail-lengths after that; then the car stopped; they went right back; when they got back the water they saw there was just crossing the track; the water was making a noise; he saw one man caught in the flood; he reached a little high piece of land where he- stayed, with the foreman.
Idie action in the Everetts ‘Case was instituted by the widow, as administratrix, to recover damages, under the Federal Employers’ Liability Act, for the negligence of the railway company in failing to warn the deceased and to stop the motor car after the flood was oh-served. Likewise, in the McNeer Case, a similar action was instituted by the administrator of the estate. Thomas Everetts left surviving him a widow and three minor children. In the McNeer Case the deceased was forty-four years old at the time of the drowning. His mother", resident in Illinois and sixty-eight years old, testified that her son married in 1878 (the time is evidently a mistake) ; that he was single when he died; that her son never had any children and that his wife married again; the deceased son left no children surviving him. Further, she stated in a general way that during the three or four years before the death of her son he contributed to her support about $700 or $800.
By stipulation special questions were submitted to the jury orally. The' court had prepared a written charge. The special questions were submitted later. Accordingly, it was stipulated that the instructions with reference to the special questions might be given orally. In the Everetts Case the jury returned a general verdict for the widow of $4,000, to one son $3,000, to a daughter $4,000, and to another son $5,000. In each case the special questions submitted were similar. They were presented and answered as follows:—
“Question No. 1. "Was the duty of patrolling tracks in time of
“Question No. 2. Did Thomas 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 Tfo. 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 waters that the 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 danger? Answer: Yes.”
Contentions.
The railway company maintains that no negligence is shown in the record which proximately caused the loss and injury; that the stonn was unusual and unprecedented; that the company was not negligent in sending out the crow but did what any reasonably prudent railroad man would have dono; that the evidence is wholly insufficient to establish that defendant knew or ought to have known, when the men were called out, that a great flood would occur in Andrews creek so as to place the crew in danger of being trapped and destroyed by such flood; with reference to the McNeer Case, that the evidence discloses that the deceased McNeer was a married man and there is no competent proof of his divorce so as to permit recovery of damages in behalf of his mother; that, upon the record and under the Federal decisions concerning the Federal Employers’ Liability Act, the deceased section-men assumed the risk of injuries pursuant to their duties requiring them to patrol and inspect tracks; that the court erred in charging the jury that ordinary care is such as people usually exercise about their own affairs of ordinary importance, and permitting the jury, under this broad charge, to find negligence, pursuant to the allegations of the complaint, which were broader than the proof submitted. Complaint
Decision.
The record facts are involved and, to some extent, in dispute. Whether the defendant was free from negligence, as a matter of law, in its instructions and warning given to the decreased section men is the doubtful question.
Fpon general survey, the record facts reveal an unusual storm, in intensity and continuance, in the Andrews creek basin during the afternoon and evening of June 17th, 1921. As a result, ordinarily dry draws, runs, and creeks became avenues of torrential waters and floods. For a space of about 16 miles the railroad track follows, generally, the Andrews creek basin. In this stretch of territory, the topography of the country is unusual. Part of this territory is known as the “Pad Lands.” In this traverse of territory, from Rider west to the Divide near Chama, about 13 miles, the track ascends about 4-00 feet. In construing its railroad through these “Bad Lands” numerous cuts and tills have been made, numerous bridges and culverts construe!ed. At places, the right-of-way crossed here and there the channel of Andrews creek. As the road traversed its way through these “Had Lands,” buttes or hills in various rough forms arose out of this basin. Rough draws and runs existed where a storm of any unusual character Avould naturally create a rapid run-off of water Avith torrential results. Thus, by construction and existing conditions in these “Bad Lauds” there existed a section where, through the topography of the country, excessive floods might cause extensive washouts, when unusual and severe rains occurred. A situation was presented upon the facts Avhore, upon a given rainfall,.an extensive flood with great resultant damage through the rapid flow of the waters in the Andrews creek basin might occur, as it did occur. In the aftermath it is not difficult to un
Accordingly, in view of the topography of the country as related, in the manner that the track was constructed, taken in connection with the unusual rain storms that occurred on June 17th, the legal questions are presented: (1) Did the railroad company become cognizant of the unusual character and severity of this storm at a time when it called out the Little Missouri crew or at a time when it could have communicated with such Little Missouri crew? (2) Under all the circumstances, was the railroad company chargeable with the understanding that excessive washouts with attendant floods might occur to its tracks and roadbed? (3) Did the railway company fail to exorcise reasonable care in instructing the members of the Little Missouri crew who lost their lives in the performance of their duties ? (4) Did these members of the Jflttle Missouri crew who thus perished assume the risk?
(1) I am of the opinion that the evidence is sufficient to warrant the finding of the jury that the railroad company knew and realized the unusual character of this storm. The very efforts that the railroad company was making on the afternoon of June 17th anticipatory of damage or washouts serves to verify the fact of realization. When the chief dispatcher came on the job at 4 n. m. on the afternoon of June 17th, storm conditions to the west were presented to his attention. The storm came from the west. Trouble was being experienced on the line to the west. At Wibaux a washout had occurred. The storm was proceeding to the oast. The severity of the storm at Beach became apparent in the afternoon. He received reports during the afternoon of the storm along the line. There is evidence in the record of a more severe storm that occurred between Beach and Sentinel Butte and at Sentinel Butte in the afternoon of June 17th. The rain waters from this storm, as witnesses testify, would naturally create a condition of high
(2) During this same afternoon of June 17th, and before he called out the Little Missouri crew, the chief dispatcher knew that damage had been done in the west by this storm which had proceeded eastward;
(3) The Little Missouri section crew, during the 'day of -Tune 17th, had not experienced storm conditions. When they were called out by the dispatcher they were, told to patrol the tracks, as it was their duty so to do, westward past Nidcr to Demores and to report at telephone stations to the dispatcher. This order required them to go off their
There is no showing in the record that this crew or the deceased section-men were familiar with this track or conditions, off their own section. When called, it was not raining at Little Missouri; the section foreman testifies that the dispatcher told him that it was raining heavy between Sentinel Butte and Beach; but this information concerned a territory which commenced 5 miles west of the western terminus of the section which the crew were requested to patrol. Further, he testifies that the dispatcher gave him no warning of high water. Another member of the crew testified that they received no warning to look for water nor of washouts. Yet, it was a part of their duty to look for water upon, or washouts in, the track. But, what knowledge did they possess so as to be forewarned, not only of danger and damage to property, concerning which they had an active duty to perform, but also to themselves and their lives. The section foreman was not a foreman in name only. He had an active duty and responsibility not only through inspection, report, and section-men’s duties to safeguard railroad employees, property and lives of passengers, and freight, hut also a duty and responsibility to protect the men under his charge. Over his men, he was as much a foreman, as was the superintendent when proceeding with his section crew westward from Demores. All of the other foreman agencies of the railroad sought to inform themselves and to give to each other all of the information procurable as to the extent of the storm and the possibilities of damage and destruction. The roaclmaster, possibly weighing chances of high water upon the track, washout conditions, and possible injury to the person of the superintendent and his men, coming west on a special, or damage to the train, decided to warn the superintendent and to require the Demores crew to flag his train. Thus the warning of conditions that would have been conveyed by the Demores crew to the Little Missouri crew was shifted from them to the superintendent. The railroad officials in charge had particular means of acquiring knowledge concerning conditions; the very intensity and volume, its widespread character, intensified that knowledge. Commanding officials, with years of experience behind them understanding possibilities of floods and washout conditions, were bound to appreciate, as tliev did appreciate
Considering all of the circumstances, I am of the opinion that the minds of ordinary men might reasonably differ upon the question whether the Company negligently failed to give proper warning and, therefore, the finding of the jury should not be disturbed.
(4) Upon these facts and circumstances, I am clearly of the opinion that the question of whether or not these section men assumed the risk was for the jury.
In response to the contention of the railroad company that the storm was so unusual and unprecedented as to constitute an intervening, independent cause by act of God, occasioning the loss and damages sustained, the answer must be made, in my opinion, that the railroad company, under all the circumstances, became cognizant of the character of this storm in sufficient time, pursuant to the finding of the jury, to'have warned and instructed the Little Missouri section crew concerning the same and, thus the negligence of the defendant in this regard became the proximate cause of the loss and injuries resulting. The record is sufficient as far as the McNeer case is concerned, to uphold the finding of the jury that the deceased McNeer was a single man at the time of his death and that, therefore, his mother is entitled to recover.
Rehearing
On petition for rehearing.
On petition of the respondents herein, a rehearing was ordered. At such rehearing the case was fully reargued by counsel. Wo have given the whole matter further and careful consideration, but we can see no reason for receding from our original opinion. Therefore, the order heretofore entered reversing the judgments of the trial court and dismissing the actions will stand.