Wagner

This is an appeal from a judgment entered upon a verdict in favor of plaintiff, a citizen of Montana, in an action brought against the railroad company, a corporation of Wisconsin, for damages sustained in a flood engulfing the town of Wibaux, Mont., on June 7, 1929. The appeal is based upon assigned errors in refusing to direct a verdict for defendant, denying a motion for new trial, and in rejecting certain evidence offered by the defendant.

Beaver creek, in Eastern Montana, flows in a northerly direction through the town of Wibaux. On the north side of the town, the company’s railroad runs east and west upon an embankment. Where it crosses the creek, it was supported, at the time of the flood, by a concrete bridge 15 to 20 feet in height above the bed of the creek. The central span of the bridge was about 65 feet wide at the bottom and 100 feet at the top. In addition there was on either side of the central span a 20-foot approach span. These latter, however, were filled in before the time of the. flood and allowed no egress to surplus water in the creek. In addition to the spacé under the bridge, there was a small “viaduct” or opening in the embankment some distance from the…