The Johnstown Flood (32 page)

The capital stock of the club would be the extent of the liability, he declared, if, that is, there were any liability, and in his opinion there was not. “I have tried,” he said, “to divest myself of my identity with the South Fork Fishing Club to see if there could possibly be any grounds for a suit against the company or individual stockholders, and I am free to say I have been unable to find any. If a person was to come to me as an attorney and want me to bring suit against the company for damages resulting from the flood, I could not do so, because there are no grounds for such a suit.”

Then, in conclusion he said, “As one of the stockholders I most certainly regret the sad occurrence, and I know the rest do; but I cannot see how the organization can be held legally responsible for the breaking of that dam.”

But if he could not, there were others who could. At the end of July the first case brought against the South Fork Fishing and Hunting Club was filed at the Allegheny Court House in Pittsburgh, where the club had been originally incorporated. Mrs. Nancy Little and her eight children were suing the club for $50,-000 for the loss of her husband, John Little, a woodenware salesman from Sewickley, Pennsylvania, who had been killed at the Hulbert House. The attorneys for the defense were, as had been expected, Knox & Reed, who filed a voluntary plea of not guilty. Then the case was put off for several months.

Early in August a group of Johnstown businessmen organized to sue the club. They raised some $1,300 to help meet expenses and hired John Linton and Horace Rose to start preparing their case.

Later on, James and Ann Jenkins, backed by some businessmen of Youngstown, Ohio, brought suit for $25,000 for the loss of Mrs. Jenkins’ father, mother, and brother, who had been drowned at Johnstown.

There were also suits against the Pennsylvania Railroad, the most important of which was one filed in September by a Mr. Farney S. Tarbell of Pittsburgh. Tarbell accused the railroad of negligence in the death of his wife and three children, who had been passengers on the
Day Express.
There were suits for lost luggage, and a Philadelphia company sued for the loss of ten barrels of whiskey, which had been looted from a freight car. This last case was won by the Philadelphia company when a conductor admitted that he had looked the other way when the whiskey was being taken. It was, as things turned out, the only case won by any of those who brought suit against either the club or the railroad.

Not a nickel was ever collected through damage suits from the South Fork Fishing and Hunting Club or from any of its members. The Nancy Little case dragged on for several years, with the clubmen claiming that the disaster had been a “visitation of providence.” The jury, it seems, agreed.

There is no account of how things went in court, as it was not the practice to record the proceedings of damage suits. Nor is there any record of the Jenkins case, though there, too, the clubmen were declared not guilty.

In the Tarbell case the judge acquitted the railroad, also designating the disaster a “providential visitation.” And in Johnstown, after nearly two years of preparation, Colonel Linton and Horace Rose urged their clients to give up their suit, saying that it would almost certainly fail. The club had no assets, they argued, and there was no chance of winning unless individual negligence could be proved and that would be next to impossible since Ruff was dead. So Linton and Rose were paid $1,000 for their services and the suit was dropped.

Perhaps the most frustrating attempt to recover some retribution was carried on by Jacob Strayer, the Johnstown lumber dealer, who set out to sue the club for $80,000. The case sat for years, in one county court after another, as the club kept seeking a change of venue due to local feelings. Then after waiting something like five years without hearing anything, Strayer discovered that his lawyer, unbeknownst to him, had settled out of court (taking $500) and had died shortly after that. Strayer next went bankrupt; the club was long since insolvent; and nothing more happened.

Had the Little case or the Jenkins case been tried in Johnstown instead of Pittsburgh, it is possible that the decisions would have gone the other way, though in Johnstown there would have been small chance of finding twelve men to serve on a jury who would have been able to profess no bias against the club. In the judgment of lawyers who have examined the facts of the disaster in recent years, it also seems likely that had the damage cases been conducted according to today’s standards the club and several of its members would have lost. It is even conceivable that some of those immense Pittsburgh fortunes would have been reduced to almost nothing. What the repercussions of that might have been is interesting to speculate. Possibly it would have delayed, perhaps even altered significantly, the nation’s industrial growth.

In trying to evaluate why the cases went as they did, it is, of course, important to keep in mind the tremendous power of the people who were being sued. Their influence and prestige were such that few would have ever dared challenge them on anything. “It is almost impossible to imagine how those people were feared,” Victor Heiser would say many years later. They were the ruling class. It was that simple. The papers could rail away to their heart’s delight (while seldom ever mentioning any names), but to actually strike out at the likes of the clubmen, even within the confines of the courts, was something else again. Practically speaking, the odds against winning against them were enormous, even had the cases been open and shut, which they were not.

For to prove that any living member of the club had been personally negligent would have been extremely difficult. And in all fairness, it is quite likely, as the Boston
Post
suggested, that the clubmen themselves knew no more about the structural character of the dam than did anyone in Johnstown. Like nearly every leading citizen of Johnstown, with the exceptions of Morrell and Fulton, they made the mistake of assuming that the men who had rebuilt the dam had known what they were doing.

They had been told that the dam was properly engineered and properly maintained, and so, as long as everything went all right, they had no cause to think otherwise.

In addition, there is no doubt that the storm which brought on the failure of the dam was without precedent; or at least that during the relatively short period of time in which there had been some semblance of civilization in the area (which was less than a hundred years), no one had recorded a heavier downpour. So for such skillful lawyers as Knox and Reed to have argued that the whole dreadful occurrence was an act of God would have been very easy, and judging by the outcome, they made their point with great effect.

Certainly in the eyewitness testimony collected by the Pennsylvania Railroad in preparation for the suits it might have to face, repeated emphasis was placed on proving that no one had ever seen such a storm; and therefore if the “reasonable precautions” taken by railroad employees such as yardmaster Walkinshaw had turned out badly, it was only because the storm itself was so very unnatural. (It is also interesting to note that Pitcairn, in defense of Ruff’s abilities, agreed openly that Ruff had no engineering training; Ruff was a lot better than any engineer, Pitcairn said.)

Still the heart of the matter remained the dam itself, and judging from occasional comments that appeared in the papers, it seems that the club’s defense was based on the proposition that the dam would have broken anyway—even if it had had no structural flaws.

Apparently that was a convincing argument, despite the fact that several small dams which had been built near Johnstown to supply the city’s drinking water had not failed as a result of the storm; and these, significantly enough, had been built under the personal supervision of Daniel J. Morrell.

The water in Lake Conemaugh, the attorneys for the defense must have claimed, was coming up so fast on the afternoon of the 31st, and would have continued to come up so fast, even had the dam held past 3:10, that eventually it would have started over the top, and once that happened, sooner or later, the best of earth dams would have failed. Even had there been no sag at the center, even if the spillway had been working to full capacity, the volume of water rushing into the lake was greater than what could get out, and so, they held, the end result would have been the same, except that it would have come later, and perhaps at night when the consequences would have been far more disastrous. It was a specious line of defense, for several reasons.

First of all, there is no way of ascertaining for certain whether the inflow of water was such that it would have caused the lake to spill over the breast of the dam for an extended period of time had the dam been higher at the center, instead of lower, and had there been no obstructions in the spillway. There is also no way of telling whether there was a drop off in the volume of water pouring into the lake in the hours following the break. In other words, would there have been enough water rushing off the mountain to keep the lake at a level higher than the breast of the dam (a properly engineered dam, that is) for many hours? It seems unlikely. Moreover, it was clear from the engineering studies made, and from photographs taken of the dam after the break, that it was that part of the dam which had been repaired by Ruff and his crew which went out on the afternoon of the 31st.

But even if it were assumed, for the sake of argument, that the Ruff repairs were as solid as the original dam, that the spillway obstructions did not greatly diminish its capacity, and that there was no sag at the center to reduce even further the spillway’s usefulness, there still remains one very obvious and irrefutable flaw in the dam and in any argument in its defense.

Because there were no longer discharge pipes at the base of the dam, the owners never at any time had any control over the level of the lake. If the water began to rise over a period of days or weeks to a point where it was becoming dangerously high, there was simply nothing that could be done about it. If, on the other hand, the pipes had still been there, as they were up until they were removed by Congressman Reilly, or if new pipes had been installed by Ruff, then through that abnormally wet spring of 1889 the men in charge of the dam, Unger, John Parke, and others, could have kept the lake at a safe level of say at least ten to twelve feet below the crest of the dam.

So while there is no question that an “act of God” (the storm of the night of May 30-31) brought on the disaster, there is also no question that it was, in the last analysis, mortal man who was truly to blame. And if the men of the South Fork Fishing and Hunting Club, as well as the men of responsibility in Johnstown, had in retrospect looked dispassionately to themselves, and not to their stars, to find the fault, they would have seen that they had been party to two crucial mistakes.

In the first place, they had tampered drastically with the natural order of things and had done so badly. They had ravaged much of the mountain country’s protective timber, which caused dangerous flash runoff following mountain storms; they obstructed and diminished the capacity of the rivers; and they had bungled the repair and maintenance of the dam. Perhaps worst of all they had failed—out of indifference mostly—to comprehend the possible consequences of what they were doing, and particularly what those consequences might be should nature happen to behave in anything but the normal fashion, which, of course, was exactly what was to be expected of nature. As one New England newspaper wrote: “The lesson of the Conemaugh Valley flood is that the catastrophes of Nature have to be regarded in the structures of man as well as its ordinary laws.”

The dam was the most dramatic violation of the natural order, and so as far as a few rather hysterical editorial writers were concerned, the lesson of the flood was that dams in general were bad news. The writers took up the old line that if God had meant for there to be such things as dams, He would have built them Himself.

The point, of course, was not that dams, or any of man’s efforts to alter or improve the world about him, were mistakes in themselves. The point was that if man, for any reason, drastically alters the natural order, setting in motion whole series of chain reactions, then he had better know what he is doing. In the case of the South Fork dam, the men in charge of rebuilding it, those who were supposed to be experts in such matters, had not been expert—either in their understanding of what they did or, equally important, in their understanding of the possible consequences of what they did.

What is more, the members of the club and most of Johnstown went along on the assumption that the people who were responsible for their safety were behaving responsibly. And this was the second great mistake.

The club people took it for granted that the men who rebuilt the dam—the men reputed to be expert in such matters—handled the job properly. They apparently never questioned the professed wisdom of the experts, nor bothered to look critically at what the experts were doing. It was a human enough error, even though anyone with a minimum of horse sense could, if he had taken a moment to think about it, have realized that an earth dam without any means for controlling the level of the water it contained was not a very good idea. The responsibility was in the hands of someone else, in short, and since that someone else appeared to be ever so much better qualified to make the necessary decisions and pass judgment, then why should not things be left to him?

In Johnstown most men’s thoughts ran along the same general line, except that it was the clubmen who were looked upon as the responsible parties. And just as the clubmen were willing to accept on faith the word of those charged with the job of rebuilding the dam, so too were most Johnstown people willing to assume that the clubmen were dutifully looking to their responsibilities. If the dam was in the hands of such men as could build the mightiest industries on earth, who could so successfully and swiftly change the whole character of a city or even a country, then why should any man worry very much? Surely, those great and powerful men there on the mountain knew their business and were in control.