the injury, by reason of his contributory negligence.797 If a person riding on such a train and passively submitting to the regulations of the company, is injured in consequence of something which is under control of the company, a presumption of negligence arises against the company, such as would arise where a passenger, riding upon a regular passenger train, is so injured; but his active conduct might repel this presumption.798 $2909. Liability for Injuries to Stockmen Travelling on the Train to Care for their Stock.-A shipper of stock, or his employé, travelling on the train which carries the stock, on a pass, for the purpose of feeding, watering, and caring for them while in transit, is a passenger for hire,199 and, other things being equal, is entitled, 797 Louisville &c. R. Co. v. Bisch, 120 Ind. 549. 198 Dictum in Woolery v. Louisville &c. R. Co., 107 Ind. 381; s. c. 5 West. Rep. 667; ante, § 2757. In this case it appeared that some lumber, negligently loaded on a car in front of the caboose on which plaintiff was riding, became loose, striking against the caboose, and alarming plaintiff to such an extent that he leaped from the train while it was moving at such a high rate of speed as to make it obviously dangerous to do so. The jury found specially that there was not sufficient reason to cause a prudent man similarly situated to jump, and that the plaintiff was guilty of contributory negligence; and they accordingly found a verdict for defendant, which was sustained: Woolery V. Louisville &c. R. Co., 107 Ind. 381. Railway company not liable for an injury resulting to a person from attempting to board a train at a place where the conductor had announced, in the hearing of persons assembled, that they should not get aboard there, but that the train would move on and stop for them at a place near by: Curry v. Georgia &c. R. Co., 92 Ga. 293; s. c. 18 S. E. Rep. 422. 700 Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357. at the hands of the railway company and its servants, to the same high degree of care for his safety as is bestowed upon ordinary passengers 800 but he is deemed to assume such risk and inconvenience as necessarily attend the kind of train on which he is riding, either while riding in his proper place, or while caring for and attending to his stock." 801 This does not mean that he is entitled to all the rights of an ordinary railway passenger for hire. On the contrary, the law implies the contract or condition that he will submit to whatever inconveniences are necessary to the undertaking.802 Like other passengers on a freight train,503 he assumes the risk of possible injury from sudden starting, stopping, jolting, etc., of the train, such as is reasonably incident to the management of such a train by competent trainmen without negligence. 804 But he does not assume the risk of injuries from the negligence of the employés of the carrier; but, subject to the foregoing modifications, he is entitled to the measure of care which is due from a common carrier to a passenger for hire. Among the risks proceeding from the negligence of the servants of the carrier, which the stockdrover does not assume, is, in case of a shipper riding upon a steamboat to care for his stock, the risk of injury from a hatchway negligently left open, unlighted and unguarded, without any warning to him from the officer in charge of that part of the boat, who knows that he is liable to pass that way in caring for his stock, and also knows that the hatchway is open. Nevertheless, it is a plain inference that a railroad company will be Soo Memphis &c. R. Co. v. Buckner (Ky.), 57 S. W. Rep. 482 (shipper of stock on steamboat). 901 Omaha &c. R. Co. v. Crow, 54 Neb. 747; s. c. 74 N. W. Rep. 1066. 802 Omaha &c. R. Co. v. Crow, 47 Neb. 84; s. c. 66 N. W. Rep. 21. 903 Ante, § 2903. Compare ante, § 2830. 804 Heyward v. Boston &c. R. Co., 169 Mass. 466; s. c. 48 N. E. Rep. 773. 805 Missouri &c. R. Co. v. Tietken, 49 Neb. 130; s. c. 68 N. W. Rep. 336. 80 Memphis &c. Packet Co. v. Buckner (Ky.), 57 S. W. Rep. 482. It has been held that a contract for the transportation of live stock which requires the owner to care for them, imposes upon the railroad company the obligation to afford him reasonable opportunities and facilities to do so; and if it refuses to detain its train long enough at a proper stopping place to enable him to feed and water the stock and return to the caboose, it can not avoid liability for injuries sustained by him in 806 the freight car, where he remains, on the ground that the contract required him to remain in the caboose: Illinois &c. R. Co. v. Beebe, 174 Ill. 13; s. c. 50 N. E. Rep. 1019; 11 Am. & Eng. Rail. Cas. (N. S.) 163; aff'g s. c. 69 Ill. App. 363. A railroad company is bound to use reasonable care in providing stockmen accompanying their stock with a safe opportunity for alighting from the train on which they are, and entering another to which they are required to change, and is liable if they are induced by the conductor to enter a place of danger in the company's yard, and are there injured without want of due care on their part: Chicago &c. R. Co. v. Winters, 65 Ill. App. 435. Where the action was predicated upon the negligence of the railroad company in injuring the plaintiff by knocking him from a stock car while he was leaving it, it was not error to exclude a contract between the plaintiff and the defendant provid liable in damages to such a person, where he is injured by a sudden motion of the train while he is boarding a car, if the engineer sees him approaching the train under such circumstances as to create a reasonable inference that he is about to board it.807 So, it has been well held that where such a stockdrover has got off the train to prod up the cattle that are lying down, it is the duty of the company, through its servants, to give him a suitable warning of its intention to move. the train, and to afford him reasonable time thereafter to get on before moving the train.808 But a railroad, company is under no obligation to such a person to stop its train at the station platform to permit him to board it, where its usual custom is for shippers to board the train in the yard, and he, without inquiry as to when or from what place the train will start, goes to a restaurant to get a lunch, and then proceeds to the platform.s09 810 § 2910. Contracts Limiting the Liability of the Carrier to Stockmen. It has not been doubted since the decision of the Supreme Court of the United States in leading cases cited in the margin,s that a drover or stockman riding upon a railway train on what is called a "drover's pass" for the purpose of tending and caring for stock while in transit, is a passenger for hire, the compensation paid to the carrier for his transportation being included in the sum paid him for the transportation of the stock. Such being his status in the eye of the law, the attempt of the carrier to impose on him a contract by which the carrier exonerates itself from all liability for an injury to him, is futile, and does not release the carrier from liability for any injury to him received without his own fault, which is due to the negligence of the carrier or his servants. The carrier can not, any more than with an ordinary passenger for hire, agree to transport him in safety,-for such is the intendment of the contract of carriage in the eye of the law, and at the same time agree that the carrier may have permission to kill or to injure him through the negligence of the carrier or its servants, without incurring responsibility to any one for the injury thus done.811 ing for the transportation of the stock of the plaintiff and stipulating that the plaintiff should ride in the caboose at his own risk, since the contract had no application to the issue: Illinois &c. R. Co. v. Anderson, 184 III. 294; s. c. 56 N. E. Rep. 331; aff'g 81 Ill. App. 137. 807 Pitcher v. Lake Shore &c. R. Co., 40 N. Y. St. Rep. 896; s. c. 16 N. Y. Supp. 62; s. c. aff'd 137 N. Y. 568. 808 Atchison &c. R. Co. v. Worley, (Tex. Civ. App.), 25 S. W. Rep. 478. 800 Ohio &c. R. Co. v. Brown, 46 Ill. App. 137. 810 Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357; s. c. 21 L. ed. 627. 811 Carroll v. Missouri &c. R. Co., 88 Mo. 239; s. c. 57 Am. Rep. 382; Ohio &c. R. Co. v. Selby, 47 Ind. 471; s. c. 17 Am. Rep. 719; Louisville &c. R. Co. v. Bell, 18 Ky. L. Rep. 735; s. c. 38 S. W. Rep. 3 (no off. rep.). § 2911. Contracts Requiring Stockman to Ride in Caboose.Injuries to stockmen have been so frequent that railway companies have found it necessary to insert in the so-called "drover's pass” a written contract, generally signed by the shipper or by the holder of the pass, requiring him, while riding on the train, to remain in the caboose attached thereto, while a train is moving. Such a stipulation is valid and binding upon the stockman, and if he is killed in consequence of its violation, under such circumstances that the fact of its violation is the proximate cause of the injury, there can be no recovery of damages.812 But such a contract is to receive a reasonable interpretation. If the stockman is bound, under the terms of the contract for the transportation of his stock, to feed them and to care for them, he need not, it has been held, remain constantly in the caboose while it is in motion.813 The word "motion" in such a contract means that continuous movement of the cars toward their destination which is commonly understood when we speak of moving trains or of a train in motion, and does not mean a sudden jolt or jar of the car while the train is stationary.814 Moreover, such a stipulation is manifestly one which may be waived by the carrier, through its conductor, who is master of its train, as in other cases,815 so as to make the carrier liable for an injury to the shipper of a horse who, con As to the liability of the railway platforms at stations or depots, or furnish lights for the safety of such persons, involve only the ordinary hazards peculiar to the running of cattle trains and freight trains, and to freight yards, and do not include the hazard from a water-spout negligently left by a fireman projecting over the train after filling the tank of an engine: Fitchburg R. Co. v. Nichols, 85 Fed. Rep. 945; s. c. 50 U. S. App. 297; 29 C. C. A. 500. 812 Ft. Scott &c. R. Co. v. Sparks. 55 Kan. 288; s. c. 39 Pac. Rep. 1032; Goggin v. Kansas &c. R. Co., 12 Kan. 416; Sprague v. Missouri &c. R. Co., 34 Kan. 151; Pacific Express Co. v. Foley, 46 Kan. 457; Pennsylvania R. Co. v. Langdon, 92 Pa. St. 21. 813 Texas &c. R. Co. v. Reeder. 41 U. S. App. 775; s. c. 22 C. C. A. 214: 76 Fed. Rep. 550; s. c. aff'd in 170 U. S. 530; 42 L. ed. 1134; 18 Sup. Ct. Rep. 705. 814 Texas &c. R. Co. v. Reeder, 170 U. S. 530; s. c. 42 L. ed. 1134; 18 Sup. Ct. Rep. 705; aff'g s. c. 41 U. S. App. 775; 22 C. C. A. 314; 76 Fed. Rep. 550. 815 Post, §§ 3321, 3322. with the carrier's consent, rides in the car with the horse, and is therefore injured through the carrier's negligence.816 818 $2912. Riding in Cars Other than the Caboose.-It has been seemingly well observed that stockmen, charged with the duty of looking after their stock, may ride in places and positions and do many things on the stock train, without being guilty of negligence, which, if done by one riding on a passenger train, would constitute negligence. But whether the contract of carriage requires the stockman to ride in the caboose while the train is in motion, if, with time to do so, he fails to get aboard the caboose, but boards a freight car, and is injured while riding thereon, he is guilty of contributory negligence, though the defendant negligently fails to bring the caboose within a reasonable distance of the depot." But where the stockman was in charge of a valuable horse, and the contract of carriage required him to take full charge of it during the transit, and it was the custom of persons in charge of such animals to ride in the freight car with the animal, and the conductor knew that he was riding in the car, and made no objection to him being there, he was not precluded from recovering damages for injuries caused by a negligent derailment of the car.s The act of riding in a stock car when it is in motion, in violation of a condition in the stockman's contract of transportation, will not preclude him from recovering damages for injuries received while his part of the train is left standing on the track, and while he is caring for his stock as the contract requires him to do; since, under such circumstances, the train is not deemed to be "in motion."820 819 § 2913. Injuries to Stockmen while Walking on Top of Cars. 821_ So, if the stockman is authorized by the company to pass along the tops of cars of the train, in the discharge of his duties, the company comes thereby under an obligation toward him of maintaining its snow sheds high enough to permit him to pass under them in safety, or, if that is impracticable, to warn him, either by word or by some 816 Missouri &c. R. Co. v. Cook, 12 Tex. Civ. App. 203; s. c. 33 S. W. Rep. 669; rehearing denied in 34 S. W. Rep. 178 (no off. rep.). 817 Kansas &c. R. Co. v. White, 67 Fed. Rep. 481 (such as stand on platform when train is in motion; climb ladder of stock car when train is in motion; get on top of train and walk back to caboose, or ride on top of car for some distance until train stops). $19 Player v. Burlington &c. R. Co., 62 Iowa 723. $19 Chicago &c. R. Co. v. Lee, 92 Fed. Rep. 318; s. c. 34 C. C. A. 365; 14 Am. & Eng. Rail. Cas. (N. S.) 264. 20 Texas &c. R. Co. v. Reeder, 170 U. S. 530; s. c. 42 L. ed. 1134; 18 Sup. Ct. Rep. 705; aff'g s. c. 41 U. S. App. 775; 22 C. C. A. 314; 76 Fed. Rep. 550. 821 This section is cited in § 2965. |