There was an unprecedented rain and freshet. A culvert theretofore sufficient, was then insufficient to let the water pass; and thereby an embankment of the defendants road, ten feet high and sixty feet long, was washed away. About ten o’clock the next day, and some ten hours after the road was washed away an excursion train came on at the usual speed and pitched pell-mell into the gorge; and the intestate of the plaintiff who was a brakesman upon the train was killed.
"Was this the result of negligence on the part of the defendant ? Or was it an unavoidable accident ? That is the only question. The defendant says, that the conductor, the engineer, the brakesman and other servants running the train were all skillful and careful, and knew nothing of the break in the road. That he had a skilful and attentive section master and hands to keep the road bed in order; and that if the section master had known of the break (which he did not) it was so large that all the hands on the road could not have repaired it in time ; and that the flood was unprecedented, and that the *747break could not have been prevented. And so tbe defendant insists that lie is not guilty of negligence.
The case was well argued, and there are full briefs on both sides, embracing the questions.
(1.) First, whether a servant of a road can recover of the corporation for injury sustained ?
(2.) Secondly, whether a servant can recover for injury resulting from the neglect of his fellow servant?
(3.) Thirdly, whether the deceased'was a fellow servant with the section hands to keep the road-bed in order, by reason that he was a servant on the train ?
(4.) Fourthly, whether if the defendant employed skillful and usually careful servants, he was liable for negligence in this, or in any given case ? These and other questions were fully considered. But the question upon which the case turns, is outside of all these. Concede everything in the defendant’s favor but this; was it not his duty to have some one at the break in the road to stop the train ? Unquestionably it was. Nothing else but that could have prevented the catastrophe, and that would haye prevented it. To allow the gorge to stand for ten hours with no one to guard it; and to allow the train on time, without warning, to pitch into it, was negligence which nothing can excuse. The track, and especially every exposed place, ought to be examined after every storm before a train is allowed to pass; and if that is not clone, and injury results, whether to passengers or the servants on the train, the corporation is liable.
No error.
Pee Cusiam. Judgment affirmed.