other means, of the approach of the train to such a shed.822 No doubt, if it is the custom of the railroad company to transport its stockmen on the top of its cars, this may be shown to rebut the presumption of contributory negligence, in a case where a stockman, so riding, is thrown down and killed by a sudden jar caused by the locomotive removing the "slack" of the train.823 But, as elsewhere seen, contributory negligence is generally ascribed to the act of a stockman, or other person riding upon a freight train, of walking or standing on the top of the train, this being a highly dangerous position, which no passenger has the right to assume except in case of necessity.825

§ 2914. Injuries Received by Sudden Jolts and Jars while the Train is at a Standstill.-The relation of carrier and passenger, between a railroad company and one riding on a drover's pass, is not suspended while the car in which his stock is loaded is waiting until another train can be made up to forward it to its destination, 826 A stockman who is informed by a trainman in authority that the train will remain standing at a certain point for some time, and is directed to look after the stock at that time, has a right to assume that the train will not be moved without notice to him; and he is not guilty of contributory negligence in assuming a position, while in the performance of such duty, which is dangerous in case the train is started without warning.827

822 Nelson v. Southern &c. R. Co., 18 Utah 244; s. c. 55 Pac. Rep. 364; 5 Am. Neg. Rep. 254; 14 Am. & Eng. Rail. Cas. (N. S.) 374. It was therefore held, on an earlier appeal in the case just cited, that a person in charge of live stock on a railroad train, who, while the train is in motion, incautiously and without the exercise of ordinary care and prudence, such as a man of reasonable care and foresight would under similar circumstances exercise, attempts to pass from the stock cars to the caboose, over tops of intermediate cars of unequal height, while the train is passing through snow sheds in a storm so severe as to tax all his energies to maintain his footing, which act caused or contributed to his death, and became the proximate cause thereof, is guilty of such contributory negligence as will prevent a recovery: Nelson v. Southern &c. R. Co., 15 Utah 325; s. c. 49 Pac. Rep. 644.

823 Tibby v. Missouri &c. R. Co., 82 Mo. 292.

824 Post, §§ 2965, 2966.

825 Chicago &c. R. Co. v. Elliott, 20 L. R. A. 82; s. c. 55 Fed. Rep. 949.

826 St. Louis &c. R. Co. v. Nelson (Tex. Civ. App.), 44 S. W. Rep. 179 (no off. rep.).

827 Missouri &c. R. Co. v. Jahn, 18 Tex. Civ. App. 74; s. c. 43 S. W. Rep. 575. To the same effect see International &c. R. Co. v. Armstrong, 4 Tex. Civ. App. 146; s. c. 23 S. W. Rep. 236. In a similar case the facts were that the plaintiff was travelling on the defendant's road on a drover's pass as the shipper's agent in charge of his cattle. Part of his duty was to "punch up" cattle when they got down in the cars. As the train neared a station the conductor informed the plaintiff that there were some cattle down and that he would have time to punch them up when the train stopped. While at the station the engine was disconnected

§ 2915. Injuries to Stockmen in Attempting to Alight.—It has been well held that the conductor of a freight train is chargeable with knowledge that a shipper of stock, riding in the caboose, has a right, under the contract of shipment, to get off at intermediate stations at which the train stops to examine his stock, and is bound to know that if such shipper is led to believe that the train has reached and stopped at such station, he may attempt to alight.828 Where the evidence was to the effect that, upon the train reaching a point where a stockman, so riding, might lawfully leave it, and he was not directed by the trainmen on which side to alight, but was permitted to alight upon the side where there was danger, known to them but not to him, as to which they gave him no warning or caution, and he was injured in consequence of it, there was a question of negligence to go to the jury.829

$2916. Speed of Stock Trains.-As already seen, the general rule is that no rate of speed in a railway train is negligent as matter of law, but the law wisely leaves the question to a jury where the evidence raises any doubt about it, to be resolved in view of the facts of each particular case. This rule was applied in one case where a man, riding in the caboose of a freight train which carried his stock, was injured by the derailment of the train while running at a speed of forty miles an hour, the track being in good condition and the cars properly equipped. It was held that the question whether, under such circumstances, to run the train at such a rate of speed was negligent, would depend upon other circumstances, such as the size of the train, the manner of loading the cars, the danger of col

and run to the coal shed, and, in reconnecting it, it struck the cars with such violence that it threw the plaintiff from his balance, as he was attempting to pass between two cars to reach a cow that was down, and caused the injuries for which he sued. No signal or warning was given. The Court of Civil Appeals of Texas held that this was actionable negligence on the part of the company; that the plaintiff was justified in relying on the conductor's statement that they would have time to punch up the cattle before the train was moved, and, though he could have seen the engine approaching if he had looked, it was not contributory negligence for him not to have looked: Missouri &c. R.

Co. v. Jahn, 18 Tex. Civ. App. 74; s. c. 43 S. W. Rep. 575.

828 International &c. R. Co. V. Downing, 16 Tex. Civ. App. 643; s. c. 41 S. W. Rep. 190. Plaintiff was informed by the conductor, the train having stopped, that they were at a certain station. He thereupon went out and, in the dark, stepped off the caboose and fell from a trestle thirty feet high on which the caboose had stopped. It was held that he was entitled to recover.

823 Chicago &c. R. Co. v. Winters, 175 Ill. 293; s. c. 51 N. E. Rep. 901; aff'g s. c. 65 Ill. App. 435. As to passenger alighting on the wrong side of the train, see post, § 3046.

830 Ante. § 2827; Vol. II, §§ 1873, 1893, et seq.

lision with animals or teams at highway grade-crossings, the im proper loading or unloading of cars, and the like.831

§ 2917. Duty to Warn Stockman of Danger Unknown to Him, but Known to the Trainmen.-As already seen, 832 this duty arises in favor of any passenger, except where the danger is just as obvious to the passenger as to the trainmen. Still less will the carrier be justified in inviting such a passenger into a position of peril; and if he complies with the invitation to his harm, contributory negligence will not ordinarily be imputed to him, unless the danger is glaring. On the other hand, the fact that the conductor of a train in which a shipper of stock is riding, knows or ought to know of the shipper's danger, does not create a liability on the part of the company for the damages sustained by him, unless the conductor negligently fails to warn him, and unless such failure is the proximate cause of the injury.834

§ 2918. Stockman Riding upon the Engine.-A shipper of live stock, who is entitled, as such, to ride in the caboose of the freight train, who, without invitation, mounts the engine on the starting of the train, under the belief that he will not be able to get into the caboose, in violation of a rule of the company forbidding persons other than specified employés from riding on the engine, takes the risks of the exposed situation, and the only obligation of the company is to protect him from injury wantonly inflicted by its employés. 835

$2919. Other Contributory Negligence of the Stockman.-The fact that one accompanying a stock train as agent of a shipper to

831 Pennsylvania Co. v. Newmeyer, 129 Ind. 401; s. c. 28 N. E. Rep. 860. 832 Ante, § 2843, et seq.

833 Chicago &c. R. Co. v. Winters, 175 Ill. 293; s. c. 51 N. E. Rep. 901; aff'g s. c. 65 Ill. App. 435.

834 Missouri &c. R. Co. v. Cook. 8 Tex. Civ. App. 376; s. c. 27 S. W. Rep. 769. In this case the plaintiff was riding in the first section of a freight train running about five minutes ahead of the second section. The first section had to stop on account of the air brakes getting out of order and "setting." It was run into by the second section and the plaintiff was injured.

835 Mobile &c. R. Co. v. Bogie, 101 Tenn. 40; s. c. 46 S. W. Rep. 760. See, also, Aufdenberg v. St. Louis

&c. R. Co., 132 Mo. 565; s. c. 3 Am.
& Eng. Rail. Cas. (N. S.) 323; Chi-
cago &c. R. Co. v. Michie, 83 III.
427. As to contributory negligence
in riding on the engine, see post.
§ 2943. A railroad company has
been held guilty of negligence where
a stockman, who was riding upon
the engine by the direction of the
engineer, was killed in a collision
with a train of another railroad
company; and-the doctrine of com-
parative negligence being then in
vogue in the particular jurisdiction,.
--it was held that it was not a good
defense that the other railroad com-
pany was more negligent than the
company carrying the stockman:
Union &c. R. Co. v. Shacklet, 119
Ill. 232; s. c. 8 West. Rep. 63.

look after his stock, was attending to the stock of another shipper at the time of an injury to him, has been held immaterial on the question of his contributory negligence, where he was acting under the instructions of one who, with the acquiescence of the conductor, was authorized by the several shippers to direct each agent to look after any animal, regardless of who might be its owner.836

§ 2920. Other Negligent Injuries to Stockmen.-Railroad companies have been held liable, on the footing of negligence, to stockdrovers accompanying their cattle, under the following circumstances: Where the drover, properly on the top of the cars, attempted to descend by way of a ladder between two cars, and was caught between them by their coming together, because of the absence of bumpers,837 where the trainmen directed a stockdrover to ride on the tender of the engine in a stock yard where trains and engines were "running wild," and a collision ensued, injuring him ;838 where the trainmen failed to warn a stockdrover upon entering a snowshed, which was not high enough to permit the passage of a person standing upright upon a box car, along the top of which he was obliged to pass in caring for his stock;839 where the plaintiff's evidence, though contradicted, tended to show that he had entered one of the cars to look after his cattle, and that, while therein, the car was suddenly moved a few feet and was then suddenly stopped without warning, throwing the weight of part of the cattle against him, pushing him against a trough, and injuring him in the abdomen,with the conclusion that the court properly refused to direct a verdict for the defendant;840 where a drover was injured by the backing of a train against a car while he was standing in the door of it, attempting to close it, so as to prevent the animals from getting out of it.841

836 Missouri &c. R. Co. v. Jahn, 18 Tex. Civ. App. 74; s. c. 43 S. W. Rep. 575.

837 New York &c. R. Co. v. Blumenthal, 57 Ill. App. 538.

Union &c. R. Co. v. Shacklet, 19 Ill. App. 145; s. c. aff'd 119 Ill. 232; 8 West. Rep. 62.

839 Saunders v. Southern &c. Co., 13 Utah 275; s. c. 44 Pac. Rep. 932; 4 Am. & Eng. Rail. Cas. (N. S.) 13.

840 Texas &c. R. Co. v. White, 101 Fed. Rep. 928.

841 Illinois &c. R. Co. v. Anderson, 81 Ill. App. 137.

CHAPTER XCII.

CONTRIBUTORY NEGLIGENCE OF THE PASSENGER.

In General, §§ 2922-2940.

ART. II. Riding in an Improper Place, Position or Manner, SS 2942-2983.

ART. III. Negligence in Boarding Carrier's Vehicle, §§ 2987-3007. Negligence in Alighting from Carrier's Vehicle, §§ 3010

Alighting at Improper or Dangerous Place, §§ 3041-3054. ART. VI. Failing to Protect Himself against Dangers in and about Premises of Carrier, $$ 3057-3064.

ARTICLE I. IN GENERAL.