Morris

Plaintiff brought this action to recover for injuries which he suffered while a passenger upon defendant’s train. The cause was tried before a jury which returned a verdict in the sum of $6,814.50 against the defendant Southern Pacific Company. From that judgment and from an order denying its motion for a new trial the railroad company appeals.

The injuries resulted from the derailment of the train, occasioned by storm waters which undermined the track. The accident occurred about 11 p. m. of the twentieth day of January, 1911, in Merced County. There had been rains of unprecedented heaviness in that part of the country and the storm and flood waters were being carried down new and old river channels to defendant’s tracks. The company had been warned of the possibility of danger to its tracks from these flood waters at a point a mile and a half north of its station at Minturn where there was an old slough of the Chowchilla River. This slough had been known in the past to carry part of the storm waters of the river. The foreman of a large vineyard near Minturn had notified his superintendent that a very heavy freshet of storm waters was approaching the railroad tracks. The…