Mo. Pac. Ry. Co. v. Tietken

• Decision Date: 16 September 1896
• Citation: 68 N.W. 336,49 Neb. 130
• Parties: MISSOURI PAC. RY. CO. v. TIETKEN.
• Court: Nebraska Supreme Court

49 Neb. 130

68 N.W. 336

MISSOURI PAC. RY. CO.

v.TIETKEN.

Supreme Court of Nebraska.

Sept. 16, 1896.

Syllabus by the Court.

A shipper of live stock, who receives from the railroad company undertaking the transportation of such stock a free pass to enable him to care for his stock in transit, assumes such risks and inconveniences as necessarily attend upon caring for such stock; and, modified accordingly, the liability of the railroad company to such shipper for personal injuries by him sustained by reason of the negligence of its employés is that of a common carrier for hire.

Error to district court, Otoe county; Chapman, Judge.

Action by John F. Tietken against the Missouri Pacific Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.C. W. Seymour, David Kelso, J. W. Orr, and B. P. Waggener, for plaintiff in error.

John C. Watson and Charles A. Robbins, for defendant in error.

RYAN, C.

In this action, which was brought in the district court of Otoe county, plaintiff recovered judgment on the verdict of a jury in the sum of $2,500. He alleged in his petition that about October 9, 1890, he shipped over the defendant's road certain live stock from Scio to Chicago; that the train by which the shipment was made stopped at Weeping Water, and plaintiff was informed by the conductor that 20 minutes would be allowed plaintiff for obtaining a meal; that before said 20 minutes had expired said conductor suddenly and excitedly called out to plaintiff that he must immediately get on the train, or be left; that said train was at the time moving slowly, and that plaintiff, by reason of believing, relying upon, and attempting to obey the order of said conductor, attempted to board said train, moving at a rate of speed unknown to plaintiff; and that, owing to the wrongful acts and negligence of the defendant, plaintiff was thrown in such a manner that the wheels of the cars of said train passed over plaintiff's right foot, necessitatingits amputation, and over the large toe of the left foot, whereby its amputation was also rendered necessary. These averments were supplemented by averments of the damage caused, which the defendant had refused to pay. By its answer the railroad company denied the above averments, and charged that the injuries of plaintiff were attributable to his own negligence. This charge of negligence was denied by plaintiff in his reply. The questions presented by these error proceedings are: First, was the railroad company guilty of negligence? and, second, was the defendant in error guilty of contributory negligence? It has been repeatedly held by this court that issues as to negligence and contributory negligence, where the evidence is so conflicting that from it different minds might draw different conclusions, must be determined by the jury. Railroad Co. v. Wilgus, 40 Neb. 660, 58 N. W. 1125;Railway Co. v. Morgan, 40 Neb. 604, 59 N. W. 81. As the jury found in favor of the defendant in error, we shall assume as established such pleaded facts as the evidence upon his behalf justified the jury in finding, without undertaking to set out the proofs submitted in rebuttal.

The defendant in error, when he made his shipment at Scio, received from the railroad company a contract which entitled him to free transportation in the caboose of the train whereby said shipment was made, that he might, in transit, give his stock such attention as circumstances might demand. Indorsed on this contract were the following provisions: “We, the undersigned persons in charge of the live stock mentioned in the within contract, in consideration of the free pass granted us by the Missouri Pacific Railway Company, and of the other covenants and agreements contained in said contract, including the rules and regulations at the head hereof, and those printed on the back hereof, all which, for the consideration aforesaid, are hereby accepted by us, and made a part of this our contract, and all the terms and conditions of which we hereby agree to observe and be severally bound by, do hereby expressly agree that during the time we are in charge of said stock, and while we are on our return passage, we shall be deemed employés of said company, for the purposes in said contract stated, and that we do agree to assume, and do hereby assume, all risks incident to such employment, and that said company shall in no case be liable to us for any injury or damages sustained by us during such time for which it would not be liable to its regular employés.” Notwithstanding the above-quoted language, the defendant in error was, for certain purposes, a passenger. His contractual right was to proceed upon the freight train upon which his cattle were being shipped, his duty was to care for his stock in transit, and his rights and privileges were limited by the necessity of traveling upon the aforesaid freight train, and by the requirement that he must care for his stock. Railway Co. v. Crow, 47 Neb. 84, ...