Statement.
Bronson, Oh. J.(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 *912also a telephone booth near Rider where similar telephone connection could be had with division headquarters; likewise, at Medora and Sentinel Butte similar telephone connections existed with the division headquarters. Through this system of telephones, communication with the division headquarters could be secured from any point. One person, however, could not ring another person on the line except through the division headquarters. Anyone, however, by taking down the receiver could hear telephone communication. Medora had a 24-hour service either through such telephone or by telegraph. This telephone communication was used by section men for reporting, or for giving orders, or securing information from division headquarters at Glendive. There was a chief dispatcher and a trick dispatcher handling trains upon the division concerned covering the places herein-before mentioned. Their duties concerned the movement of trains and the conditions of the tracks over which trains were operating. The dispatching was done by telephone when in order; otherwise by telegraph. These dispatchers were concerned with the operations of section crews for purposes of understanding track conditions. There was also a-superintendent in charge of the division, and a roadmaster who had authority oyer section crews and was the superior officer of the chief dispatcher.
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, *913Andrews creek; here and there it crosses the channel of Andrews creek. In some places filling has occurred; in others cuts have been made. To some extent here and there the channel was changed or obstructed; to some extent, likewise, the track was rip-rapped to protect against washouts. For instance, concerning the character of this construction, one witness testifies that there were some five bridges existing along the track, between Demores and Sentinel Butte, a distance of 5 miles. Generally speaking’, the evidence and exhibits disclose that the territory traversed is rough territory. A territory where the “Bad Lands” abound. Where it traverses the same, the railroad winds in and out along the Andrews creek basin between buttes, elevations, and rough rolling land characteristic of the “Bad Lands.”
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 *914out for 40 or 50 feet. Train No. 1, westbound, was held at Beach. Another witness who was working on the Bed Trail about 5 miles east of Beach and 4 miles west of Sentinel Butte and, a short distance nortli of the railroad testified that about 3:30 or 4 p. m. it started to rain; that it rained until about 7 or 8 p. m; that the rain was like a cloudburst; he judged that some 4 or 5 inches of water fell. From this place, known as Knobb's Hill, the waters on the east side went down the creek and eventually into Andrews creek, and the waters on westerly side, westward and thence into Little Beaver. Similarly, a civil engineer testified that when ho was coming to Beach about 2 p. Nr. from this work on the Bed Trail he struck rain and in Beach that afternoon it rained very hard, the hardest he ever saw; he judged that about 4 inches of water fell; the rain was coming from the West; that Andrews Creek comes as far west as Knobb's Hill and that draws to the north and south feed into it; that the effect of a heavy rain would be to cause the creek to rise very rapidly. Another witness who was riding on horseback from a distance some 60 miles northwest of Eider to Eider noticed, in the afternoon, appearances of heavy rain towards Beach and westward. A garage man in Sentinel Butte testified that in the afternoon about 4 p. m. the rain started. It rained until about 6 p. m. It was the worst rain he had over seen in that country. That it rained again from 8 p. m. until about 11 p. m. or 12 p. m., a still harder rain. A merchant in Sentinel Butte testified that the rain that afternoon started about 4 p. m ; first one lasted until about 6 p. m ; the next one started 7 v. m. for a few minutes and then between 8 and 9 p. m. there was a real rain. The rain in the afternoon before 6 p. m. was the hardest one he ever saw with the exception of the one that occurred after supper. That this rain was coming from the west and was travelling east down the Andrews Creek valley. That he never saw water like that before in the streets of Sentinel Butte. It was running over the sidewalks and over the culverts, too. That the dam in the creek went out. The keeper of the rainfall records from the United States Department of Agriculture at Beach testified that between 4:15 or 4:20 p. m. and 5 :45 r. m. the rainfall, including hail, at Beach was 3.95 inches; after 6 p. m., for the next twenty-four hours, it rained .86 inch. The rain came from the west and was travelling eastward. At about 8:30 p. m. the regular westward train, No. 7, left *915Medora. It arrived, at Demores at 9 :20 and at Sentinel Butte at 9 :35, where it caught the extra train upon which the roadmaster was proceeding westward. At Sentinel Butte the roadmaster inquired of the chief dispatcher concerning weather conditions east and west. Ho was informed that it had not rained at Medora but that he, the chief dispatcher, had called out the section-men at Little Missouri to patrol their tracks and start out to see if anything was wrong. Upon being advised by the chief dispatcher that he had not called out the Demores section crew, the roadmaster then, by telephone communication through Glendive to Demores, advised the Demores section men to patrol the tracks east until they met the section crew from Little Missouri. At this time the roadmaster advised the chief dispatcher that it was raining heavy at Sentinel Butte. When No. I arrived the roadmaster secured information from the conductor. He was advised that the water was pretty high between Demores and Sentinel Butte; that he had better get out over the track and see if there was any danger of water coming down that way. He testified that water would naturally go that way. In the afternoon of the same day the superintendent of the division, while at Mandan, received word of the engine blocking the traffic at Wibaux. He attached his business car to a light passenger engine westward bound and started west for the purpose of going to Wibaux. He arrived at Medora at 9:18. He stopped there just long enough to talk to the dispatcher. The roadmaster, upon receiving information from the conductor of No. 1, again called up the Demores section house. He knew that the superintendent was coming west. The roade master has charge of the section men on his division. Then he instructed the Demores section crew to wait, flag this special train of the superintendent, and report to him. Then he knew that the superintendent was on his road with a special out of Medora. Before he left he talked with the dispatcher again, in all three times, and advised the dispatcher that it was raining hard. Otherwise he testified that it was the hardest rain he ever saw in the country. The dispatcher also had advised him that it had rained at other points between Wibaux and Beach. Also the roadmaster received advice from the section crews at Sentinel Butte; there were two; one had been west over the track a short distance and found no water running through the cut; they reported that the waters were not running over the track *916but were on the side of the track and that they were afraid it might wash out the track. The roadmaster left at 9 :45 p. m. and proceeded westward. His train stopped at Chama. There was no washout. He stopped to report to the dispatcher and got any information he could regarding the storm. The superintendent in his evidence testified that he arrived at Medora about 9 :18 r. M. He stopped long enough to talk to the dispatcher. He did not stop at the Hider station. He was flagged at Demores by the section crew. There he told the conductor to get on the siding and stay at the phone. With the other men he got on the section motor car and started for Sentinel Butte. He was advised that it was raining hard at Sentinel Butte and he went on west to see the condition of the track. He went westward on the motor car because he did not want to take any chances of tipping over another engine. He did not send the motor car east because he had just come from the east. He had found no washouts and the track was all right. He arrived at Sentinel Butte at 10 :45 p. m. It is to be noted that Demores is 5 miles from Sentinel Butte.
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 *917midnight. They left Hitler at midnight westward bound. They proceeded westward a short distance beyond mile post No. 157. There all of a suelden they saw a big volume of -water coining down tlic track in a cut. They stopped the motor car, turned it around, and started back east. Before they had travelled 100 yards, the water became so high that it stopped the engine. The rush of the water was so great that it held the motor speeder against the rails and the men were unable to push it along. Immediately they abandoned the car and sought safety. McNeer and Everetts and another section-man swept from the track and drowned. The foreman with two other men reached a place of safety at a high point a few yards from where the motor car stopped. This place where the accident occurred was a little over three miles west of the section where the Little Missouri crew worked. It was about seven miles from the place -where they started, namely, Little Missouri. It was not quite half way between Little Missouri and Sentinel Butte and about 8 miles east of Sentinel Butte.
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 *918duty at 4 p. m., the operators at Wibaux, Beach, and Sentinel Butte kept informing them of the storm and its extent; during the afternoon, they received reports of the storm from different points along the division both east and west of Glendive; they knew about the washout and derailment at Wilbaux; the section crew at Beach were out when they came on duty at 4 p. m. At 3 :30 p. m., 5 :30 and 5 :45 p. nr., the dispatchers were notified concerning the storm by the operator at Sentinel Butte; they received reports of no rain at Medora; before 9 p. m. they knew that both section crews at Sentinel Butte were out; the chief dispatcher called out the Little Missouri crow because of hard rain reported at Sentinel Butte and no rain at Medora; he wanted to be sure that the track was covered; this was three or four minutes before the roadmaster talked to him. He did not call the Demores crew because he had not gotten around to it; when the roadmaster called, the roadmaster said that he would send out the Demores crew. Between 9 p. m. and 9 :30 p. m. both the dispatchers and the roadmaster knew that the heaviest rain and most severe storm ever experienced was in progress at Sentinel Butte and was proceeding eastward. The roadmaster knew that the water was getting pretty high around the bridges between Sentinel Butte and Demores. About 10 p. m. when the superintendent arrived at Demores, he knew that there it was raining very hard. There he left his special, by way of precaution that another engine might not be tipped over, and proceeded westward with the Demores crew by motor car. Then No. 7 was at Sentinel Butte, 5 miles distant, and the roadmaster’s wrecker had just previously left for Chama and Beach. Around 11 p. m. the lines went down; the accident occurred after midnight.
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; *919the ties gave way and then both went down; the witness caught the rails with his hand and finally got out; he heard Everetts calling for help.
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 *920stonn one of the usual and ordinary risks of the business in which Thomas Everetts was engaged? Answer: Yes.
“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 *921is also made that the court erred in instructing the jury to the effect that the failure to warn the Little Missouri crew of danger through the rains would constitute negligence, on the ground that it permitted the jury to consider rainfgll in territory out of the Andrews creek basin. Error is also predicated in refusing to give requested instructions concerning negligence, proximate cause and the intervention of an efficient, independent producing cause.
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*922derstand, as a matter of mathematics, how the serious damage that did result would occur from the construction that was made in the Andrews creek basin through the rainfall that happened. True it is that never before had the railroad in this basin experienced any such damage or anything like such washouts: True it is that with one exception the evidence fairly shows that this was the most intense flood with extensive washing out of the tracks that had occurred on the system for some twenty-five or more years.
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 *923water in Andrews creek as tliis creek had to receive the waters from Chama east, from the draws, runs and the water shed to carry the same into the Little Missouri. As the day progressed it is evident that the railroad company, realizing the intensity of the storm and its possible effect, had its section crews out in the territory immediately concerned, even after their day’s duties had been performed. Just prior to 9 n. m. when the call whs made for the Little Missouri crew to proceed to patrol the tracks, the rainfall conditions in the territory to the west of where the Little Missouri'crew were now situated was known to the chief dispatcher. The storm was progressing eastward. Its intensity at Sentinel Butte and westward ho knew. Furthermore, this was not a local storm or a local matter; the roadmaster of the division and the superintendent of the entire division were alert and actively concerned. One proceeded westward to the territory on a wrecking extra; and the other, by a special train; all section crews in the territory affected were out and frequent reports were being made along the line to the dispatchers. The storm was progressing eastward; as it progressed, it left, immediately behind a trail of high water conditions, actual or prospective washouts, and delayed or interrupted train service. At Wibaux washout conditions had caused derailment of an engine. At Beach train No. 1 was held; at Chama eastward, in the afternoon, incipient torrential floods were in progress; at Sentinel Butte, track crews were out and reports of water along the tracks westward likely to produce washouts were given; at Sentinel Butte the wrecker extra stopped and the roadmaster, instead of proceeding westward to clear the track at Wibaux, as was his purpose at the beginning, took charge of the situation; he told the Demores crew to meet the Little Missouri crew; he waited for No. 7 to arrive; he learned further conditions from the conductor of No. 7; he countermanded the order to the Demores crew and ordered them to wait and flag the special of the superintendent; No. 7 was held at Sentinel Butte. All of these facts were sufficient, in my opinion, to warrant the finding of the jury that there was a realization and understanding on the part of the railway company of the unusual severity of this storm.
(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; *924a washout had occurred at Wibaux only 10 miles west of Beach; excessive waters were around the tracks at Beach; at Sentinel Butte, the unusual severity of the storm was reported as well as high water and possible washouts. The roadmaster, who in the afternoon was at Dickinson, and who was the superior officer of the chief dispatcher as well as the man in charge of all the section crews, becoming aware of conditions, proceeded with a wrecking crew over this territory to reach Wibaux and clear the line. The superintendent of this division, who in the afternoon was at Mandan, becoming aware of conditions, attached his business car to an engine and started westward. Before the Little Missouri crew left on the trip to patrol the tracks, around 10 p. m. (as the jury might find), the roadmaster, having arrived at Sentinel Butte, knew that a most unusual and severe storm was in progress; that washout conditions might occur east and west of Sentinel Butte. He knew, further, then, that the Little Missouri crew had been ordered out. Then he, instead of the chief dispatcher, ordered the Demores crew to proceed eastward and meet the Little Missouri crew. If this had been done the drowning here involved never Avould have occurred; but soon after 9:30 p. m. No. 7 arrived. The rain conditions, through report of the conductor on No. 7 intensified the necessity of attention to the track and washout conditions. The order to the Demores crew was countermanded and they were instructed to stop the superintendent of the division at Demores; and so, when the superintendent arrived, he ceased to proceed with his special train; by way of precaution, he held this special at Demores to avoid the possibility of another derailed engine. He embarked on the motor car to proceed westward from Demores to Sentinel Butte; and thus, in a distance of five miles about an hour was consumed in traversing the same. So I am of the opinion that the evidence was sufficient to warrant the finding of the jury that the railroad company, under all the circumstances, realized and understood that peculiar and excessive washouts to the track with attendant floods might occur.
(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 *925own- section. Never before bad they been, so far as the record discloses, off their own section to do such patrol duty.
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 *926by their activities and direct supervision, flood conditions and dangers therefrom. The warning given by the dispatcher was merely a general warning, if any at all. He could have more fully warned them when he first called. He could have warned them after he talked with the roadmaster and before the crew left on their patrol. The roadmaster, who took charge, likewise could have warned them. So, the superintendent might have done. Must this court assume, as a matter of law under the circumstances, that there was on duty imposed upon these officials to so advise and instruct these section men about the risk and the possible dangers, that they might appreciate what they were about to encounter and might know how to prepare for and avoid dangers, apparent from the Unusual circumstances, existing? 4 Thomp. Neg. § 4055, id. vol. 8, § 4059; Dresser, Employers’ Liability, § 99; Louisville & N. R. Co. v. Peck, 152 Ky. 6, 49 L.R.A.(N.S.) 198, 153 S. W. 39; Western R. Co. v. Russell, 144 Ala. 142, 113 Am. St. Rep. 24, 39 So. 311; Chicago G. W. R. Co. v. Roddy, 65 C. C. A. 470, 131 Fed. 712.
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.
*927I am further of the opinion that, pursuant to the special questions submitted to the jury by stiprdation of counsel, and the oral instructions given with reference to the same, that no prejudicial error occurred through the trial court’s instructions concerning negligence, or its refusal to give instructions requested by the Company. Each of the judgments should be affirmed with costs.