TALBOT SMITH, Senior District Judge.
The controversy before us arises out of damages suffered by a train of the plaintiff Chicago and North Western Railway Company (hereafter the railroad) due to a washout of its tracks and subsequent derailment of its train.
On the night of June 9, 1971, the area involved suffered, in a short period, an extremely heavy downpour of rain. It was of such intensity that it was characterized by one witness as the "hardest rain...
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