The white cascade, p.26
The White Cascade, page 26
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.
