A provision in a contract, made with a railroad company for the
carriage of livestock, that the person in charge of the stock shall
remain in the caboose car while the train is in motion is not
violated by his being in the car with the livestock when the train
is not in motion, even though he may have been in that car, instead
of in the caboose car, when the train was in motion, and in case of
an accident happening to him while so in the cattle car, caused by
a sudden jerk made when the train was at rest, his being in the
cattle car at that time, and under such circumstances, does not
make him guilty of contributory negligence.
This was an action originally instituted by Alexander Reeder
against the Texas & Pacific Railway Company in the District
Court of Marion County, Tex. to recover for personal injuries
sustained by Reeder. The action was afterwards removed upon
petition of the defendant to the United
Page 170 U. S. 531
States Circuit Court for the Eastern District of Texas. The
facts of the case were substantially as follows:
Reeder shipped from Scottsville, Kansas, to Houston, Texas, a
car loaded with an emigrant outfit, consisting of ten head of
livestock and of household goods, and accompanied the same upon a
drover's pass. It was provided in the contract which he entered
into with the railway company that he should "assume all risk and
expense of feeding, watering, bedding, and otherwise caring for the
livestock" while on the way, and, to better care for the stock, he
rode in the car with them. In the ninth paragraph of the contract,
it was further provided
"that the person or persons in charge of livestock covered by
this contract shall remain in the caboose car attached to the train
while the same is in motion, and that whenever such person or
persons shall leave the caboose, or pass over or along the cars or
track, they shall do so at their own risk of personal injury from
every cause whatever."
The evidence shows that it was the custom on the road of the
defendant company for stockmen to ride in the caboose, but that, in
the case of an "emigrant outfit" like the one in question, it was
not unusual for the person in charge to ride in the car with the
livestock. Reeder rode with the livestock during the whole trip,
and although his car was next to the caboose and he was invited by
the conductor and trainmen to ride in the caboose, he declined for
the reason that it would be inconvenient for him to get in and out
of the car to look after his stock.
Reeder, whose age was about 70, testified that he had traveled
about five hundred miles over connecting lines before reaching the
line of the defendant company, and in that distance neither his
stock nor himself had sustained any injury. He further testified
that during his whole trip on the line of the defendant, his stock
was roughly handled by the sudden stopping and starting of the
engine, and had been knocked down at least eight times, and that
his complaints to the trainmen that the jerks and jolts were
killing his stock did no good. He also testified that at or about
the place along the line of the road where he received his injury,
called
Page 170 U. S. 532
Longview, the train was stalled on a steep grade, and the
engineer, in trying to get headway, would back the train a short
distance and then start with a sudden jerk as he took up the slack
of the train; that one of the jerks threw down three cows and two
horses, whose halters had been snapped by the jerk; that the
engineer uncoupled the train, taking part up the grade, leaving his
car; that, after the car stopped, he got the stock up, and was on
his way back to his seat when the engine came back against the
train with such a sudden jar that he was thrown off his feet, and,
to save himself, he grabbed an iron support. It seems that the
sudden jar or jerk pulled his right arm out of joint at the
shoulder, which subsequently was followed by a partial paralysis of
the shoulder muscles.
The engineer and others of the train crew testified that the
train was not uncoupled at the place mentioned by Reeder, but was
uncoupled at another place called Marshall, where there was a very
steep grade. The witnesses for the defendant also testified that
the trip was no rougher than usual, and one of the brakemen said on
the stand that he was riding in the caboose at the time of the jerk
which caused the injury, and that he did not suffer from it in any
way.
After all the evidence was in, the defendant requested the court
to charge the jury to return a verdict for the defendant. This the
court refused to do, whereupon the defendant requested the court to
charge the jury to find for the defendant in case it should find
from the evidence that the plaintiff would not have been injured if
he had been in the caboose instead of the stock car; that he was
invited to ride in the caboose; that the latter was a safer place
than the stock car, and that the plaintiff knew it. The court
refused to grant any of the instructions requested by the
defendant, and charged the jury as follows:
"If you believe from the evidence that the plaintiff, Alexander
Reeder, was riding in the stock car in which his horses and cattle
and goods were being transported over the defendant's road, and
that, while the train was stationary, his cattle being down, and
needed his attention, he at the time, in a
Page 170 U. S. 533
prudent and careful manner, attempted or did give the horses and
cattle the attention or assistance which they needed, and that the
plaintiff was injured at that time by a sudden and unusual hard
jerk or jolt or bumping of the cars in which he was riding, through
and by the negligence of the defendant company or its operatives,
you will find for the plaintiff, and assess actual damages as
hereinafter instructed."
"If, however, you believe from the evidence that, at the time
the plaintiff was hurt, that the train upon which he was riding was
in motion at the time he was giving the horses and cattle the
assistance which they needed, the plaintiff would not be entitled
to recover, and you will find for the defendant."
The jury returned a verdict for the plaintiff in the sum of
$1,500, upon which judgment was entered. The case was then taken to
the Court of Appeals for the Fifth Circuit, 76 F. 550, where the
judgment below was affirmed, and the case is now before this Court
on writ of error.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The several assignments of error in this case all resolve
themselves into the two questions whether the defendant railway
company was entitled to a peremptory instruction in its favor, or,
in case of a refusal of such instruction, whether it was entitled
to submit to the jury the question of the contributory negligence
of the plaintiff in the mere fact of riding in the stock car.
In this connection, defendant relies upon the ninth clause of
the contract under which plaintiff was traveling and transporting
his stock, which provided that
"the person or persons
Page 170 U. S. 534
in charge of livestock covered by this contract shall remain in
the caboose car attached to the train while the same is in
motion."
This clause was undoubtedly intended to provide a safe place for
drovers in attendance upon their stock, although, in the case of
emigrants accompanying their outfits, it was a common custom to
permit them to ride in the car with their outfits. But, assuming
that the plaintiff was bound by this stipulation, it was manifestly
obligatory upon him only while the car was in motion, the design
evidently being that drovers should be permitted to visit their
stock cars, and see to their cattle while the train was at rest.
Indeed, the contract specially provided that the plaintiff
should
"assume all risk and expense of feeding, watering, bedding, and
otherwise caring for the livestock provided for by this contract,
while in yards, pens, or elsewhere."
The stipulation was doubtless primarily intended to permit
drovers to visit their stock cars while the train was stopping at
its regular stations, but, as there is no such limitation in the
contract, we think the plaintiff was not guilty of contributory
negligence in attending to his cattle whenever the train was not in
motion, whatever may have been the cause of its stoppage, and
whether the same occurred at a station or not. The company might
doubtless have restricted the right of its drovers to visit their
stock while the train was stopping at its regular stations, but it
did not choose to do so, and there evidently was as much necessity
in the present case for the plaintiff to care for his stock and to
protect it against injury as there would have been if the train had
been stopping at such a station.
If the plaintiff, while riding in a caboose, might, within the
terms of the contract, have been visiting his cattle at the time
the accident occurred, then the fact that he was actually riding in
the same car with them while the car was in motion becomes
immaterial, since the propriety of his action in being in the stock
car must be gauged by the fact whether the train was in motion or
not. Had the accident occurred while the plaintiff should have been
riding in a caboose -- that is, while the train was in motion -- it
would have been strong, if not conclusive, evidence of contributory
negligence on his part.
Page 170 U. S. 535
What, then, is meant by the train being "in motion"? The jar or
sudden jolt which occasioned the injury doubtless presupposes a
momentary motion of the car, but that is an extremely limited sense
of the word, and one inconsistent with the obvious purpose of the
license, since, while stopping at a regular station, freight trains
are frequently subject to be moved short distances in order to drop
off or take on cars, to be switched on side tracks in order to
accommodate passenger trains, or to take on fuel or water. If cars
were held to be in motion while making these trifling changes, the
privilege of entering a stock car while the train was at rest would
be of no practical value. The more reasonable interpretation is
that, by the word "motion," as here used, is intended that
continuous movement of the cars towards their destination which is
commonly understood when we speak of moving trains or trains in
motion. Whether the train was really in motion was a question which
was submitted to the jury, and we have no criticism to make of the
instruction of the court in that particular:
"That if you believe from the evidence that the plaintiff,
Alexander Reeder, was riding in the stock car in which his horses
and cattle and goods were being transported over defendant's road,
and that, while the train was stationary, his cattle being down,
and needed his attention, he at the time, in a prudent and careful
manner, attempted to or did give the horses and cattle the
attention or assistance which they needed, and that the plaintiff
was injured at that time by a sudden and unusual hard jerk or jolt,
or bumping of the cars in which he was riding, through and by the
negligence of the defendant company or its operatives, you will
find for the plaintiff, and assess actual damages as hereinafter
instructed."
Evidently the action of the plaintiff upon the occasion in
question was entitled to some liberality of construction, and was
dictated by a manifest prudence for the care of his stock. In his
deposition he states:
"My car was next to the caboose, and received the full force of
the jerk, and threw several of my cows down, and the horses on top
of them; the jar broke the halters that held the horses.
Page 170 U. S. 536
I saw they were being killed by the repeated jerks, and I
climbed in the trough (I was afraid to get in where they were in
any other way), and held on to the side of the car. While in that
position, they uncoupled the train, and took a part of it up the
grade, leaving my car stationary for a time. I then managed to get
the stock all up, and was still holding on to the side of the car,
and up in the feed trough, when the engine came back against the
train without my knowing that it was coming with such force as to
throw me out of the trough; but I held onto the side of the car,
knowing that if I got under my stock, I would be killed. The car
jerked my arm out of place in the shoulder joint. Soon afterwards,
I called the conductor, and he came to my assistance. . . . The
engine came back against the car with great force, and then plunged
forward, taking up the slack, and jerked the car I was in with such
force as to hurt me, as already stated. I was up in the feed
trough, and was just going to get down when the jerk came, and was
entirely unexpected to me."
When on the stand, the plaintiff testified:
"Just before I was injured, the jar knocked three cows down, and
two of the horses fell on top of them, and when the car stopped, I
got down in front to get them up again, and after I got them up, I
was going back to take the seat again, and when I got about a foot
from the end, a jar came, and knocked me off my feet, and I grabbed
hold of some iron, and that swung me back this way until they got
started all right, and after they got started on the run, and then
I got down, and got on my feet again. As soon as they stopped
again, I called to the conductor and brakemen."
The truth seems to be that the train was not provided with
sufficient traction power, and that a stronger or additional
locomotive should have been employed. If the train was not in
motion when the accident occurred, we think that, in view of the
obviously negligent conduct of the defendant, motives of humanity
as well as of prudence may have required of the plaintiff more than
ordinary care in looking after and protecting his stock.
The company was evidently not entitled to an instruction
Page 170 U. S. 537
that plaintiff, by riding in the stock car while the train was
in motion, was guilty of contributory negligence, or even to go to
the jury on that point. The real question was whether the train was
actually in motion when the injury was received, and if there was
any error at all in submitting that question to the jury, it was
not one of which the defendant was entitled to complain.
There was no error in the action of the court of appeals, and
its judgment is therefore
Affirmed.
MR. JUSTICE WHITE dissented.
