WELLINGTON SLIDE LAWSUIT ON TRIAL
_________
Boy Sues for Father’s Death
—Other Cases Contingent
on Outcome of Trial
—Wenatchee Daily World
Tuesday, October 21, 1913
Seattle
To locals it was known as the “Cruel Castle.” An enormous neoclassical Victorian pile, it stood high on First Hill overlooking downtown Seattle, a symbol of the city’s brash and always outsized ambitions. When first built in 1890, the King County Courthouse had been something of an absurdity—a too grandiose monument for a raw young metropolis still struggling to be noticed by the world. A quarter century later, it seemed somewhat more appropriate to its surroundings. Standing in the shadow of its heavy, two-hundred-foot tower, one could now look west over a dense jumble of commercial office buildings, warehouses, and rail yards, backed by the brisk maritime traffic of Elliott Bay. Thanks largely to those rail yards and shipping wharves, Seattle had outstripped rivals like Tacoma, Olympia, and Everett to become the economic powerhouse of the region. The city, in other words, had grown into its courthouse, the way an adolescent grows into one of its older siblings’ suits.
It was in this ponderous edifice that Superior Court Trial No. 94,511—a.k.a. Topping vs. The Great Northern Railway Company —was scheduled to begin on a rainy afternoon in October 1913. In the three and a half years that had passed since March 1, 1910, other matters had displaced the Wellington Disaster at the forefront of the city’s collective consciousness. Halley’s Comet had come and gone, a new mayor had been elected, revolutions had transformed Mexico and China, and Theodore Roosevelt had become the first (former) president to fly in an airplane. But for those individuals who had lived through the avalanche—and for the families of those who had not—the disaster was a vivid and perpetual presence in their lives, a source of continued pain, bitterness, and unappeased anger.
There were some who, in the intervening years, had tried their best to move on from the tragedy. Ida Starrett, now living in British Columbia with her mother and son, apparently felt no lingering rancor against the Great Northern. After she and Raymond had recovered from their wounds, the railroad had been—in her words—“most kind” to them, arranging for nurse Annabelle Lee and injured brakeman Ross Phillips to accompany them back to Canada. (Ray remembered Phillips doing a clog dance for him on the train.) After quickly burying their dead and making an out-of-court settlement with the railroad, the family had simply attempted to put the incident behind them as quickly as possible.
Other survivors had been less forgiving. It had taken mail clerk A. B. Hensel more than sixteen months to recover from his injuries, and long afterward he still experienced occasional paralysis on one side of his body. Now back at work, he was traveling regularly over the trans-Cascade line, passing the scene of the disaster several times a week. Seeking redress for his suffering, he had in May 1910 filed a $30,000 suit against the Great Northern (a suit that actually named James H. O’Neill individually as a codefendant, citing his and the railroad’s “many instances of faulty action”). But the case had been so encumbered by pretrial motions from the GN defense team that Hensel had finally been forced to settle out of court, and for a figure that had done little to assuage his resentment.
Now Hensel would get another chance to air his grievances against the railroad, for he was to be the initial witness for the plaintiff in the Topping trial, the first Wellington-related case to reach a jury. Lawyers for both sides in the suit had together subpoenaed over two hundred witnesses for the long-awaited showdown. With several similar trials pending and a host of other potential actions hinging on the outcome, it was to be an unusually hard-fought case, particularly on the part of the railroad. For almost four years, the Great Northern had been forced to live with the criticisms explicit in the verdict of the coroner’s inquest jury, and this was the company’s chance to finally answer them. At stake was not just an enormous amount of money but also the reputation of James J. Hill’s entire Great Northern Railway as one of the safest and best-run railroads in the country.
The GN, of course, had been anticipating this moment ever since the inquest. Even before the coroner’s jury had handed down its verdict in 1910, the company had already been working behind the scenes to limit the damage to its public image and win back the confidence of shippers and the public. Two days before the end of the inquest, Samuel Hill (a prominent Northwest industrialist who was also the Empire Builder’s son-in-law) had invited Governor Marion Hay and state railroad commissioner J. C. Lawrence to a conference at his home. Writing about it afterward to his father-in-law, the younger Hill had reported with relief that the commissioner was inclined to view the Wellington matter as, “all things considered,” an unforeseen disaster. But Lawrence did want the Great Northern to articulate its plans to prevent a recurrence, so that the commission could include such plans in its own final report.
Responding by return mail, James J. Hill had declared that he himself would be traveling out to the Cascade Division to personally assess the situation. “You can say to Governor Hay and Commissioner Lawrence,” he wrote, “that the Company will put the line permanently in shape to avoid any future trouble. … There is only one course to take, and that is the one that will avoid future delays no matter from what source they come.” Since this letter was later released to the newspapers, the Empire Builder might more prudently have referred to avoiding “future deaths” rather than “future delays,” but the effect of the letter on the Washington State Railroad Commission was the desired one. By the end of the month, the commission had completely exonerated the railroad.
That still left the small matter of actually fixing the problem at Stevens Pass. On April 22, 1910 (the day after the death of Mark Twain), the last of the major wreckage at Wellington was recovered, the damaged rotary and one final engine being hoisted out of the ravine and loaded onto a flatcar to be carried off the mountain. A week later, both James and Louis Hill, along with GN chief engineer Hogeland and a contingent of other engineering experts, came west as promised to discuss plans for securing the Cascade crossing. Their subsequent report to the railroad commission was well received, and on July 25, in a press conference in Olympia, commissioner Lawrence made the second public announcement that the GN had been hoping for. Praising Hill and his railroad for their cooperation, the obliging Lawrence outlined the company’s plans. Beginning with a massive excavation at Wellington itself, the railroad would erect an enormous snowshed over the tracks, constructed of concrete rather than the usual wood. The Great Northern would also build additional sheds all along the line to Scenic to serve as “shelter stations” for trains in the event of future blockades. “The work will run into hundreds of thousands of dollars,” Lawrence announced, “[but] the public may rest assured [that] the road over the mountain will be as safe as it is possible to make it.”
For Hill and the Great Northern, it was an important, if expensive, step in winning back the confidence of passengers and shippers that had been lost as a result of the avalanche. And to further erase any lingering unease among the public, in October 1910 the railroad quietly changed the name of the station at the west portal of the tunnel from Wellington to Tye. All GN literature and timetables were altered accordingly, allowing inattentive customers to believe that the Great Northern Railway’s transcontinental line somehow no longer went through Wellington, site of the famous disaster.
Even as these changes were being put into effect, the seemingly endless switchmen’s strike was also brought to a resolution. After doing their best to sabotage the Great Northern and its witnesses during the coroner’s inquest (“Those chumps,” the union’s dyspeptic Press Committee had written, “would slander their parents if the company told them to do so”), the switchmen on April 12 finally agreed to call off the strike. Although they had not achieved many of their desired changes in working conditions, they did get almost all of the pay increase under dispute—five cents an hour as opposed to the asked-for six. It was, in other words, another split decision in the ongoing war between the Hills and their railroad’s labor, but one whose ill effects—at least in the form of the criticisms that had been raised at the Wellington inquest—would linger far longer than most.
What all of these various concessions to labor, popular perception, and governmental oversight cost Hill psychologically is easy to imagine. Apology and accommodation did not come easy to the old Gilded Age warrior, and pandering to what he perceived as outsiders, no matter how necessary, must have infuriated him. Even so, he could bite his tongue for only so long, and soon Hill was again letting his famous temper show. Before the memories of Wellington had even begun to fade, he was back to his old habit of fulminating in the press about all of his favorite subjects, including the wastrel ways of the American public (“The people are living at a tremendous rate, taking money for living expenses that should be returned to productive industrial channels”), the high wages demanded by American labor (“The rise in the wage rate is the biggest factor in the rise in the cost of living”), and the continuing abomination of progressive-style meddling in corporate affairs (“There is a popular idea that a railroad may be compelled to do just as may be pleasing to some people. By unwarranted interference with railroad operations, the people will be hurt. They will see this eventually”).
The seventy-five-year-old Hill was still waging those same battles in October 1913. If anything, the temper of the times had grown even more distasteful to him. The onslaught of progressivism had intensified over the last three years, culminating in the hard-fought presidential election campaign of 1912, a campaign in which, as Robert Wiebe has observed, all three major parties “claimed the privilege of completing the national progressive movement.” One of the most left-leaning elections in American history, it had occasioned not only the return to politics of Hill’s nemesis Theodore Roosevelt (now running under the banner of the newly formed Progressive, or Bull Moose, Party) but also a surprisingly strong showing for Socialist candidate Eugene Debs, who captured almost 6 percent of the vote. And the ultimate victory of Democrat Woodrow Wilson promised much more in the way of crowd-pleasing, big-government, anti-business regulation. All in all, for a railroad man like Hill, the future seemed ominous enough, and the Wellington trial was not likely to be one of its bright spots.
Fortunately, the Great Northern’s legal team, still spearheaded by F. V Brown and the seemingly indefatigable Frederick Dorety, had been diligently preparing its case for over three years, determined to make it impervious to challenge. In consultation with J. D. Armstrong at company headquarters in St. Paul, they had been commissioning detailed contour maps of the Stevens Pass area and collecting every relevant document they could find. (According to Basil Sherlock, GN attorneys had come through Wellington even before the lifting of the snow blockade in 1910, collecting “every record and every bit of paper that had any writing on it.”) As expected, the inquest verdict had triggered a flood of legal claims, not only from relatives of victims but also from freight customers seeking compensation for lost or damaged shipments. The GN’s initial strategy for these claims had been simple: Since the company had technically been found not liable for the disaster, all claims stemming from it were categorically denied. However, realizing that they would need the goodwill of their surviving employees in the inevitable trials to come, they had arranged to make special payments to the families of men who had died in the avalanche—specifically, $1,000 for the dependent families of married trainmen and $500 for the dependent families of unmarried trainmen. These monies were offered as “gratuities or donations,” and to receive them, the families had to sign away their right to seek any other compensation from the company
For someone like the widow of conductor Joseph Pettit, of course, this offered settlement was woefully inadequate. The man whom passenger John Rogers had called “a hero” of the Wellington Disaster had left five children to be taken care of, and $1,000 was simply not going to suffice. Fearing destitution, Mrs. Pettit had made a special petition to the Great Northern for $2,500. But although the company’s lawyers were sympathetic to the widow’s “hard case,” GN managers decided that making an exception for her would set a dangerous precedent. Although records of the final settlement with Mrs. Pettit are no longer extant, the amount ultimately granted by the company was low enough to cause bitterness among the conductor’s descendants for many years to come.
Even with the prospect of employee suits neutralized by such payments, however, the Great Northern still had to face numerous legal claims from passengers and from mail employees, track laborers, and snow shovelers (whose families were also left out of the company’s compensation plans). These cases the lawyers attempted to dispense with as cheaply as possible, and with some success. A $100,000 suit in the name of R. M. Barnhart, the forty-year-old attorney from Spokane, was quickly made to disappear. (One of the lawyers representing Barnhart’s estate was none other than John Merritt, the passenger whose sympathetic testimony in the inquest had been so helpful to the company.) Another suit—a $40,000 claim brought by the widow of Charles Eltinge, the Spokane banker—was settled for just $6,500.
Eventually, though, Armstrong, Brown, and Dorety found the one suit they wished to bring to trial as a test case for all the remaining actions hanging over them. Why they chose the Topping case in particular—a $40,000 claim brought on behalf of the late salesman’s minor son by the boy’s grandfather—is unclear; the resulting trial was not likely to generate much goodwill toward the railroad, pitting the giant corporation against a five-year-old orphan. But something about the case (perhaps, as we’ll see, the plaintiff’s choice of attorney) had appealed to the GN’s lawyers, and so they had gone forward with it—though again they tried to delay it as long as possible with various pretrial hemmings and hawings.
By October 1913, with the trial finally set to come before a jury, Brown and Dorety were fairly confident of their case. With only one exception, the dozens of railroaders they had interviewed had backed up every single one of O’Neill’s decisions, and as Dorety had professed convincingly in a letter to Armstrong, “I believe that no employee made a single statement that he did not honestly believe.” The one dissenter—a former employee named McFadgen—had made several worrisome declarations, telling the GN lawyers that O’Neill had made major mistakes in his handling of the situation. McFadgen, however, was determined not to testify and had successfully eluded all attempts by the court to locate him. The Great Northern’s lawyers could also reassure themselves that the burden of proof in the case was squarely on the plaintiff. In order to find the defendant negligent, the plaintiff would have to show that the railroad had failed to exercise the degree of care that a “reasonable and prudent person” would have exercised in the same situation. Given this high threshold of proof, Brown and Dorety were convinced that the law was on their side.
The trial began on Tuesday afternoon, October 21. Many casual spectators had gathered at the courthouse on First Hill (nicknamed “Profanity Hill” for the expletives uttered by those who had to climb it), but the seats in the fine wood-paneled courtroom also held more than a few of those who had lived through the terrifying events of the Wellington Disaster. Testifying for the railroad would be John Rogers and George Loveberry (the only two passengers on the railroad’s list of witnesses), as well as James O’Neill, William Harrington, Ira Clary, and numerous other Cascade Division employees. For the plaintiff there were, besides Hensel: John and Anna Gray, Susan Bailets, and (doubtless to O’Neill’s dismay) Henry H. White, who no longer lived in Seattle but who had returned from his native Minnesota to testify. Also present was William V. B. Topping, Ned’s aging father, acting in the name of his grandson, Bill, the child whom Ned had mentioned so often in the letter he’d been writing on the train.
All present rose for the entrance of the Honorable John E. Humphries. A somewhat gruff, plainspoken man, Humphries had probably been less than eager to take on this controversial trial. With a highly indignant public on one side and an extremely powerful corporation on the other, the judge ran the risk of making some influential enemies, especially if he ended up dismissing the case or taking some other presumptive action. Humphries was therefore determined to put the facts before the jury of twelve with as little interference as possible. If doing that required a full month of testimony (the amount of time he had set aside on the schedule for this trial), he was fully prepared to let it be so.
After various preliminaries, Judge Humphries allowed Fred Williams, the lead attorney for the plaintiff, to introduce his first witness. He called A. B. Hensel to the stand, and from the very first moments of his interrogation of the witness, it was clear that Williams intended to launch the broadest of attacks on O’Neill and the railroad. Not only would he attempt to impugn the decisions O’Neill had made once the trains reached Wellington, but he would question the wisdom of bringing them up the mountain in the first place. Hensel had apparently revealed to him that train No. 27, the Fast Mail, had been warned against attempting Stevens Pass even before leaving Leavenworth early on the morning of February 23. A “government official” on train No. 2—one of the last eastbound trains over the mountains—had allegedly told the Fast Mail’s chief clerk that it would be foolhardy to attempt a crossing that night, with the storm raging as it was. Naturally, Williams wanted to get this fact on the record. He tried several times to allow Hensel to tell the story, but the vigilant Frederick Dorety would simply not let that happen.
WILLIAMS: Mr. Hensel, do you know whether or not the statement made by the government officials was communicated to the officials on Train No. 27?
DORETY: I object as immaterial whether it was communicated to any of the officials of Train No. 27. I object to that.
JUDGE HUMPHRIES (to Williams): This [trial is about] Train No. 25.
WILLIAMS: I understand that, but that question is just preliminary.
DORETY: I think it is immaterial whether it was communicated to the officials on Train No. 27, or not.
JUDGE HUMPHRIES: I will sustain the objection to that.
In other words, Dorety argued that any such statement, aside from being inadmissible as hearsay, would be irrelevant to this case, which concerned a death on train No. 25, the Seattle Express, not one on train No. 27, the Fast Mail.
It proved to be a successful parry on Dorety’s part, and only the first of many subsequent instances in which the GN lawyer blatantly outma-neuvered his ineffectual opponent. Fred M. Williams, Esq., may have had other lawyerly virtues, but his performance in the courtroom over the next few days suggests that litigation was perhaps not his strong point. Irritable, even nasty at times, he frequently got his facts wrong, mixed up dates, directions, and numbers, and asked confused and confusing questions of witnesses. (“I presume these questions are all proper,” Dorety quipped after a few of Williams’s more muddled inquiries. “I don’t know what any of them mean!”) Though backed by an experienced former railroad lawyer named L. F. Chester, Williams often seemed unfamiliar with the basics of railroad operation. He bickered testily with the judge and with his opposing counsel, and at one point even made fun of a witness’s poor grammar—tactics not widely regarded as conducive to winning a jury’s sympathy.
Williams’s case for the plaintiff, moreover, turned out to be relatively thin, relying too heavily on the three points of criticism in the inquest verdict: the greater safety of the tunnel or the spur tracks, the loss of the striking snow shovelers, and the shortage of coal—the very issues the Great Northern had spent three years preparing to neutralize. After finishing with Hensel, Williams called only nine other witnesses to testify, and one of them, Susan Bailets, actually did his case more harm than good by pointing out that the slope above the spur tracks was both steeper and more slide-prone than the one above the passing tracks.
Even when questioning a witness as smart and motivated as Henry White, Williams failed to get much prosecutorial traction. He elicited none of the personal ire against O’Neill that White had displayed at the coroner’s inquest, and he even let pass an opportunity for White to convey to the jury the sheer horror of the slide.
WILLIAMS: Were you conscious when the coach went over?
WHITE: AS far as I know, I was conscious during the whole period.
WILLIAMS: That train and the passengers were swept into the ravine below?
WHITE: Yes sir.
WILLIAMS: And then you were brought up after the wreck?
WHITE: Yes sir, about four hours after.
That was the extent of the description Williams asked for. The attorney merely moved on to other matters, squandering a chance to inspire even a modicum of visceral outrage in the jury.
When, after only three days of testimony, the plaintiff rested, Dorety and Brown immediately made a motion to dismiss the case on the grounds of insufficient evidence. Judge Humphries was inclined to grant the motion—Williams had hardly made a convincing case—but he was simply feeling too much pressure from public sentiment to do so. In a moment of startling candor (later reported in the newspapers), he told the GN lawyers, “Were I permitted, I’d like to unravel the case for you, but I have been bombarded and ridiculed and told to let this case alone, so I am really afraid to do what you ask.” The motion for dismissal was therefore denied. The Great Northern would have to present its defense in court.
Unlike their opponent, however, Dorety and Brown had prepared a powerful case. On the same day that the plaintiff rested, Dorety set his well-choreographed, exhaustively researched effort in motion. He began by establishing the topographical and meteorological background against which the events of February 22 to March 1 had taken place. Producing a parade of expert witnesses—including surveyors, civil engineers, the district weather observer from Merritt, and a series of veteran GN railroaders—Dorety attempted to establish that the spur tracks, far from being a safer place than the passing tracks, were actually far more dangerous. Witness after witness echoed the GN’s major points: that the Wellington avalanche had been a snowslide unprecedented both in character and in location, that it had resulted from a snowfall of unprecedented length and intensity, and that it had seemingly been triggered by the violence of an unprecedented wintertime thunderstorm. The intent of this litany of unprecedenteds was to create an indelible impression among the jurors that the slide was an unforeseeable event. “It will be conceded by everyone, of course,” Dorety had noted shortly after the inquest, “that we cannot be held responsible for the results of the snowslide if the same could not possibly have been anticipated.” Insofar as he had established this conditional, his case had arguably already been made.
But Dorety knew that the best way to prove the railroad’s conscientiousness would be to produce the “reasonable and prudent person” who had actually been in charge of the situation at Wellington: superintendent O’Neill himself. In a letter written after the inquest in 1910, Dorety had made special mention of O’Neill’s value as a witness: “I will say, in justice to Superintendent O’Neill, that his personality probably prevented an even harsher criticism by the jury, as he made a very favorable impression, and the jury were evidently in sympathy with him personally.” So now, after the abstract wrangling over slope grades and snow conditions that had characterized the first half of the company’s case, Dorety would use O’Neill to put a human face on the railroad’s struggle against the storm—by letting him tell the story of his week-long fight in simple, unadorned language that the jury could easily understand.
On the fair and breezy afternoon of Monday, October 27—nearly a week into the proceedings—Dorety called to the stand the most anticipated witness of the trial. Now forty-one years old, O’Neill was no longer the relatively youthful man he’d appeared in February 1910. He had since turned the corner into early middle age, and now his hair was a little grayer at the temples, his finely cut features a little fuller and more careworn. He and Berenice had also had the second child they’d conceived shortly before the Wellington ordeal. James Jr. had been born the summer following the avalanche, at a time when James Sr.—true to form—had been absent, solving an operations problem up at Stevens Pass.
He was, however, no longer the superintendent of the Cascade Division. Just the previous July, O’Neill had been promoted to assistant general superintendent for all GN lines west of Troy, Montana, and was currently based in Spokane with Berenice and the children. The warm sentiments expressed in Hill’s congratulatory telegrams in 1910 had apparently been sincere, and far from using O’Neill as a convenient scapegoat, the company had actually rewarded him for his efforts. In fact, several weeks earlier, he had been invited to St. Paul for a grand celebration of James J. Hill’s seventy-fifth birthday. Obviously, despite the taint of the Wellington Disaster, O’Neill was still a company favorite, valued for his talents and his devotion to duty.
Dorety began the questioning at 2:00 P.M., after the lunch recess. Proceeding with impeccable logic, the GN attorney first established O’Neill’s credentials as a railroad man, eliciting details about his long ascent from fourteen-year-old track laborer through the ranks to his current position of responsibility. Dorety also demonstrated the superintendent’s expertise as a snow fighter, helping him calculate on the stand the approximately 1,350 trains per year that he had successfully run over the mountain during snowstorms in the course of his tenure as division head—without any passenger deaths until the time in question.
With this background in place, Dorety went on to guide his witness through as straightforward a narrative of the week’s events as Williams’s frequent and often wrongheaded objections would allow. Absurdly, the plaintiff’s attorney attempted to exclude nearly everything O’Neill said as irrelevant, speculative, or inadmissible hearsay. The court overruled nearly all of these objections (How could O’Neill explain himself if he couldn’t cite the information he based his decisions on?), but Williams continued making them—until, after an especially annoying objection, an exasperated Dorety exclaimed, “I submit the motion is frivolous and ridiculous, and counsel should be restrained from making interruptions of that character.” Even those sympathetic to the plaintiff’s cause may at this point have been tempted to cry, “Amen!”
Despite such harassments, O’Neill was eventually able to put most of his version of events before the jury.
DORETY: Why were [the trains] put on the passing track?
O’NEILL: [It was] the handiest place to get in and get out, and the safest place on the hill. …
DORETY: Why were the trains not placed on the tunnel spurs at that time?
O’NEILL: The tunnel spurs were blocked with snow and there were cars on the spurs. …
DORETY: Under existing conditions as they were on the night of February 24th, how long do you think it would have taken to clean the tunnel spurs and place the trains on them?
O’NEILL: I do not think we could have cleaned them at all; the snow was blowing so bad that it would be impossible to shovel them out.
Dorety concluded the examination by again eliciting the most compelling piece of evidence in support of the prudence of O’Neill’s decisions: the fact that at least thirty to forty trainmen were, of their own volition, sleeping on the trains when they could have slept anywhere else at Wellington, and that O’Neill himself, if he had been present on the night of the avalanche, would have been in his business car right there beside them.
Williams’s cross-examination of O’Neill was, from the very beginning, as hostile (and as ineffectual) as might be expected. The attorney appeared unprepared at times and frequently grew frustrated with his own inability to frame a comprehensible line of questioning. For the rest of that afternoon and the following morning, he tried his best to demonstrate that O’Neill should have put the trains anywhere else but where they were—in the tunnel, on the spur tracks, even under the snowsheds immediately west of town. Each time he did so, O’Neill would patiently explain why such a step would have been inadvisable, infeasible, or just plain impossible. Becoming ever more desperate, Williams began to harp on the tunnel option, trying to undermine all of O’Neill’s reasons for not putting the trains there, coming up with increasingly convoluted and impractical “solutions” to the problem.
“Now, Mr. O’Neill,” he said at one point, “to meet such a condition in another way, couldn’t you have detached the two cars and put them on the spurs there and then backed that engine and heated the train by its connection, moving the express and the baggage car away and the engine up to the head vestibule car in the train?”
But O’Neill had an answer for even this tortuous hypothetical: An avalanche coming down the slide-prone slope above the tunnel portal could then have trapped the train inside. “It would have buried them in,” he said simply.
In utter frustration, Williams took one last wild shot.
WILLIAMS: Wouldn’t it have been better to have buried them in the tunnel with a snowslide than to have buried them in a gully below where the train stood?
O’NEILL: NO.
Then the lawyer simply gave up.
WILLIAMS: No. All right. That is all.
(Witness excused.)
Clearly, his cross-examination of O’Neill had not been a conspicuous success, but Williams had at least one surprise in store. After O’Neill stepped down, Dorety proceeded to bolster the superintendent’s testimony with that of other important players in the snow-fighting efforts. Railroaders M. O. White, Walter Vogel, Edward Sweeney, Homer Purcell, Irving Tegtmeier, Bob Meath, Ira Clary, and William Courtenay (some of whom had been injured in the slide) all supported their superior’s claims, drawing a clear picture of a valiant but ultimately futile battle against a storm unlike any ever experienced in the Cascades.
Then former Snow King William Harrington was called to testify. Stepping up to the stand, the man whom the Seattle Times had compared to a “Roman gladiator” may have cut an impressive figure, but he was clearly uncomfortable in the formal setting of a courtroom. As long as he had Dorety’s shrewd and sympathetic questioning to help him along, Harrington was fine, and he actually gave the jury some of the most forthright accounts of how difficult and exhausting the fight against the storm had been.
DORETY: Had you tried any shoveling out by hand yourself during this snowstorm?
HARRINGTON: I didn’t do anything much but shovel for about six days.
DORETY: HOW did you succeed in your attempt?
HARRINGTON: There was times when we could not gain a point with shoveling, on account of the wind; the wind was blowing [the snow] faster than we could move it by shovel.
However, once under cross-examination by Williams, Harrington proved to be a less than ideal witness for the Great Northern cause. More than once during his testimony, he contradicted himself, and when Williams read some of his inquest answers back to him, Harrington hurt his own credibility by claiming not to remember making the statements in question.
The truly decisive moment came when Harrington resumed the stand the next morning after an overnight recess. Williams had apparently learned something new and important during that interval, and he immediately pounced on the railroader once the opportunity for recross-examination arrived. Establishing first that Harrington had hiked down the mountain several days after the disaster with Henry White and some of the other injured survivors, Williams dropped his bombshell.
WILLIAMS: On that trip down and while you and Mr. White were resting, did you not have a conversation about this slide, and in that conversation did you not say to Mr. White, “That train ought to have been put in a safe place. That was a hell of a place to leave it”?
This was a sensational revelation, one that seemed suddenly to electrify a courtroom lulled by days of ineffectual cross-examination. Harrington, of course, immediately denied having made the statement, but Williams hastily recalled White to the stand in rebuttal. When he asked the salesman whether Harrington had made the comment attributed to him, White was emphatic: “Yes sir,” he said—with a certainty that brooked no contradiction.
Clearly rattled, Dorety immediately attempted to discredit the story by establishing that no one else present at the time had heard the alleged comment. He also brought out that during a subsequent three-hour conversation between himself and White—as the two rode together on a train from Scenic—White had never even mentioned it. But there was only so much the GN lawyer could do to vitiate the effect of this surprise testimony. If such an incriminating statement had indeed been made by a veteran railroader—by the Snow King, no less—it would naturally cast doubt on all previous testimony about the relative safety of the passing tracks (much of which, admittedly, had seemed suspiciously unanimous and well rehearsed). As at the coroner’s inquest, then, Henry White, with a few short but devastating words, had arguably done the Great Northern and James H. O’Neill more harm than all the strident newspaper editorialists and anti-railroad activists in the country.
It’s impossible to say how much impact all of this had on the jury’s assessment of the case. Certainly Harrington’s alleged remark caused enough excitement among the spectators to prompt a scolding from Judge Humphries—after the next recess, the judge gave a long lecture to the courtroom on the subject of not talking loudly about the case in the hallways within hearing of the jury. Dorety also went on to bolster his already strong case with further exculpatory evidence, eliciting support for O’Neill both from other railroaders, including J. J. Dowling, and from the passengers John Rogers and George Loveberry. But the “hell of a place” comment had cast a pall over the entire Great Northern case. Whether or not it had actually been uttered, the statement was likely to linger in the memory of the jurors, coloring their view of the credibility of every GN witness who had testified.
When the evidence in the case was complete, the GN lawyers made another attempt to get a dismissal or at least a directed verdict on the basis of insufficient evidence. Here again, Judge Humphries felt he simply could not comply. Whatever his own opinion about the strength of the plaintiff’s case, his goal was to let the jury have its say. So he simply gave his instructions to the panel of twelve and then—over the further objections of the GN lawyers, who had their own version of the instructions they wanted the judge to give—allowed them to retire.
The jury’s deliberation was short and apparently uncontentious. The very next day, on November 1, the jurors filed back into the courtroom with their verdict. It was in favor of the plaintiff, William Topping.
O’Neill, when he heard this verdict, must have been crushed: All of the efforts he and his men had made—the days and days of unrelenting, backbreaking work, with few pauses for food or sleep—had suddenly been nullified at a single stroke. According to the jury, Edward Topping and every other victim of the avalanche had died through the negligence of the Great Northern Railway and its officers. And even though the $20,000 award granted by the jury was only half of what was originally sought, the amount was still, by 1910 standards, significant—large enough to dispel any notion that the jury regarded O’Neill’s extraordinary efforts as any kind of mitigating factor.
The GN lawyers immediately appealed. Money aside, this case was simply too important to lose. Over the next few weeks, they regrouped and focused their energies on the appeal. And although it took many months of further legal wrangling, their labors ultimately paid off. In August 1914 the Washington State Supreme Court issued its decision, and it was firmly in the company’s favor: “It is plain, from the evidence in the case and from the undisputed facts,” the court ruled, “that this avalanche was what is known in law as vis major, or an Act of God, which, unless some intervening negligence of the railway company is shown to have cooperated in it, was the sole cause of the accident, and for which the railway company is not liable.” Noting that the Great Northern “was using every energy, almost superhuman efforts, to raise the blockade,” and that avalanche predictions “are clearly beyond the knowledge of men,” the court determined that it was “too plain for argument that no negligence of the appellant was shown. … It was the duty of the trial court, therefore, to have granted a nonsuit, or to have instructed the jury to return a verdict in favor of the appellant.” The original jury’s verdict, in other words, was reversed, with the plaintiff obliged to pay back the $20,000 award, plus 6 percent interest and $264 in court costs.
This ruling was naturally a relief to James J. Hill and to every other railroad owner in the country. Letting the original decision stand would have been a precedent ominous for big corporations of every kind. In some ways, however, the quick reversal of the jury’s decision denied real justice to just about everyone else connected to the Wellington Disaster. For many of the victims—the family of Ned Topping, the parents of Nellie Sharp, the mother of Thelma Davis, even survivors such as A. B. Hensel and Henry White—the decision meant that their moral victory had been shortlived. They now came away from the tragedy with little except bitterness and (for those who would settle their cases) a financial reward that could hardly compensate adequately for their suffering. And for the Great Northern railroaders, the decision provided little in the way of vindication for their monumental efforts. The public, after all, had given its opinion through the jury. The stigma that O’Neill must have felt when he returned to his family in Spokane on that early November night in 1913, after the original trial verdict, would not have been lessened much by a technical legal ruling made by a few aging judges in Olympia.
The supreme court’s decision did in fact prove to be controversial, with some antirailroad observers accusing the justices of being in the pocket of Jim Hill and his powerful friends. However, such inflammatory claims aside—and considering the thrust of the case as it was actually tried—the supreme court probably did come to the right decision. Reading the trial transcript almost a century later, most objective observers would find the jury’s verdict clearly unsupported by the evidence as presented, especially with the high standard of proof required to establish negligence. True, in light of the antipathy felt by much of the public toward the railroads at this time, the original verdict was perhaps foreseeable. In the eyes of many people, the railroads had been abusing the public trust for years, and whether or not the Great Northern was guilty of such abuse in this particular case was irrelevant to many. As one outraged correspondent had written to the GN’s general solicitor after being denied a Wellington claim, “The people are rising up in arms against the injustice that is practiced by concerns such as yours, and the day is not far distant when you and I will see, if you are as young a man as I am, that different tactics will be pursued by the people over whom the railroads are ever prone to take advantage.”
Fortunately or unfortunately, those different tactics—litigation, regulation, governmental oversight—were at this time already making inroads against the power of the great American railroad conglomerates. As James J. Hill was sensing with greater indignation every day, the era of railroad hegemony—that long half century when railroads could do more or less as they pleased, especially in the American West—was rapidly coming to a close. Admittedly, in this one case the Great Northern did win its ultimate day in court, but the tide of history was clearly moving against the Victorian laissez-faire attitudes that had allowed the railroads and other trusts to gain such great influence and authority without any corresponding answerability. A new, more modern conception of the balance of power between Big Business and the people was already surfacing, ushering in a time when labor, government, and the public would all have a say in how the railroads did their business. As Theodore Roosevelt had said back in 1904, “Corporate cunning has developed faster than the laws of nation and State. … There must come, in the proper growth of this nation, a readjustment.” By 1913, thanks in large part to Roosevelt himself, that readjustment was well under way.
But there was another force, even more formidable than unions and government regulators, that was now working against the supremacy of the railroad industry: competition. The automobile—in the guise of Henry Ford’s revolutionary Model T, the first affordable car for the masses—would soon offer personal mobility of a kind that passenger trains could never hope to match. Trucks would shortly be able to transport goods directly from producer to customer without costly transfers or huge minimum tonnage requirements. As for speed, the airplane, which in 1910 was rapidly becoming feasible as a mode of commercial transportation, would eventually make Fast Mail trains seem as archaic as the Pony Express.
Railroads, of course, would never actually fade away from the American scene. Even now, at the beginning of the twenty-first century, they remain the most useful form of transportation for many kinds of heavy, high-volume freight. But trains would eventually lose their to the culture of modernity that they themselves had helped create. Total railroad track mileage, after peaking in 1916 at an all-time high of 254,037 miles, would begin to shrink every year thereafter, soon bringing to an end the golden age of American railroading. This slow atrophy was already becoming apparent to perceptive observers in the first decade of the twentieth century—James J. Hill among them. “By the time you’re forty,” he told his son Louis in 1905, “be out of the railroad business.” It proved to be good advice. By the 1920s, the passenger rail industry had entered an era of decline that, except for a brief revival during World War II, would continue for the rest of the century.
Viewed against the background of the great transition in the structure of industry and government that was occurring in the Progressive Era, the Wellington avalanche can not really be regarded as a major impetus of change. Granted, some significant modifications in railway operations did come about as a direct consequence of the tragedy. Shortly after the destruction of the Fast Mail at Stevens Pass, for instance, the U.S. Post Office Department began requiring that all Railway Mail Service cars nationwide be constructed of steel rather than wood. The events of 1910 also forced many changes in the local operations of the Great Northern itself, including an acceleration of the move toward wireless communications and a massive snowshed-building effort in the Cascades that eventually put 95 percent of the track from Wellington (now Tye) to Scenic under snowshed or tunnel protection. However, the Wellington Disaster was not—to cite a much overused bit of current-day parlance—the “Avalanche That Changed America.” It was instead more a symptom than a cause of the great transformations then occurring throughout the country. The decades right around the turn of the twentieth century, after all, were plagued by industrial and transportation disasters of the Wellington type. The newspapers of 1910 were full of such horrors—sinking steamships, exploding factories, devastating fires—culminating in that most famous of all such disasters, the 1912 sinking of the Titanic.
It was, in short, a time when mankind’s technological reach had profoundly exceeded its grasp, when safety regulations and innovations in fail-safe communication and operations technologies had not yet caught up with the ambitious new standards of speed and efficiency required by American Big Business. As telegrapher Basil Sherlock would write some fifty years afterward, the events at Wellington would have played out much differently in a more advanced technological age. “Such places would have radio and we would be able to contact the outside world. Helicopters would come to [the] rescue, with tools to work with and help.”
In 1910, unfortunately, there were no radios at Wellington and no helicopters to come to the rescue of the Seattle Express and the Fast Mail. James H. O’Neill and his men were forced to work with the resources they did have available to them—temperamental snowplows, fragile telegraph and telephone connections, and countless man-hours of hard physical labor. Given the limits of these resources, the fact that these men fell short in this one extreme situation was perhaps excusable. As John Rogers pointed out afterward, the railroaders “could not battle the clouds away.” But the failure of their efforts at Wellington, no matter how courageous those efforts may have been, was what history would ultimately remember about the disaster, and it was something that all of them—-Jim O’Neill in particular—would be forced to live with for the rest of their lives.