OPINION
FAWCETT, J.
Plaintiff
brought suit in the district court for Cedar county to
recover for the death of two hogs and the crippling of two
others, through the negligence of defendant, while the same
were being shipped over defendant's line. From a judgment
in his favor defendant appeals.
The
evidence shows: That the hogs were shipped from Coleridge,
Nebraska, to Sioux City, Iowa; that the line of
defendant's road from Coleridge to Wakefield is what
might be termed a stub line. Plaintiff's shipment
consisted of 71 head of hogs. They were loaded at and left
Coleridge between 1 and 2 o'clock in the morning of
February 9, 1909, on train No. 44. Freight for Sioux City
arriving at Wakefield on No. 44 is transferred at that point
to the main line and carried to Sioux City either on No. 56
or No. 14. When the train, of which plaintiff's car formed a part, reached Wakefield, a snow storm of
great severity was blowing and the weather was extremely
cold. No. 14 was at that time stalled at Norfolk, some
distance west of Wakefield, and No. 56 was stalled on the
passing track east of the depot.
The
conductor of No. 44 testified: That he had been in
defendant's employ for 20 years; that he remembered the
storm of February 9; that during the trip they had a little
delay at Laurel on account of the high storm; that the storm
was fierce at Laurel and he lost one of his men; that when he
reached Wakefield the storm was as bad as he had "ever
lived in;" that there was a high wind with falling snow
and it was bitter cold; that when they reached Wakefield they
got as far as the tank and "could not get on the line
because the train stalled. The Bloomfield train, bound for
Sioux City, was stalled on the passing track east of the
depot at Wakefield; they could not get through the drifts on
the track, about 200 yards from us. I didn't know they
were stalled there until we worked our way to the station and
found them. They went as far as they could to the side track
while we got tied there. Their engine died next morning about
the time ours did. I could have gone 20 or 30 yards farther.
There was a drift at the main switch. The only reasonable
thing to do was to stop at the water tank, with hopes of
doing something after the storm was over. I kept my engine
alive until 8 or 9 o'clock the next morning, when she
died on us. We had to kill her to keep her from freezing up.
It stormed all day Tuesday and Tuesday night, and abated some
time Wednesday. When the storm abated everything was blocked
wherever snow could lie; side tracks were full of snow; yard
was full of snow, deep drifts, perhaps some ten feet right in
front of the station; stockyards were level full of snow;
snow in box cars and everything; had a regular mountain of
ice around our engine. * * * This car of stock got out of
Wakefield some time Thursday evening, and went out on the
first train. We did everything that we could do to protect
the stock. The storm was so fierce one could
not see his hands before his face. It was absolutely
impossible to get the cars off on Tuesday morning. * * * Q.
Was it possible any time after you reached the water tank on
Tuesday morning of your arrival at Wakefield until the track
was opened up Thursday afternoon for you to reach the chutes
at the stockyards? A. No, sir. Utterly impossible. Q. And
why? A. Because of the drifts, deep drifts between there and
the stockyards."
Mr.
Severance, another witness for the defendant, testified: That
he was a freight conductor on defendant railway; that he was
at Wakefield on the morning of February 9; was conductor of
No. 56; that "it was blowing very hard, a blizzard, you
couldn't see anything with distinctness six feet in front
of you. The storm first struck us at Wayne, where we had
trouble, and it continued getting worse. When we arrived at
Wakefield the tracks were covered with snow so it was almost
impossible to move without going ahead and shoveling the snow
off the tracks so that the sand would take a hold and keep
the wheels from slipping. When we struck the yards at
Wakefield we first stopped at the water tank. Then we pulled
up to the main line, and headed in on the passing track. It
took considerable time to get in there on account of the
snow. We took the passing track to wait for 14, but 14 did
not arrive. It is the train from Norfolk; 44 then came in and
stopped at the water tank. We did not go out on account of
the blizzard. We tried to get out, made several attempts,
made one attempt to get Mr. Hoider's engine (the engine
on No. 44) up there coupled onto ours, in order to proceed
double headed, but we couldn't do anything. After it
cleared up we started to buck snow to clear the road toward
Sioux City, and went as far as Emerson, I think we got there
between 4 and 5 o'clock on Thursday. We then returned to
Wakefield, picked up the stock, including the cars mentioned,
and went on to Sioux City. That was the first train that went
through from the time the storm began. * * * Q. Was there any
time Mr. Hoider (conductor of No. 44) could
have transferred his car of stock from his train to your
train that morning? A. No, sir. Q. Was no time he could do
that until after they got the road bucked, as you spoke of?
A. No, sir."
The testimony of these two witnesses is fully corroborated by
defendant's station agent at Wakefield.
As
against this testimony on behalf of the defendant, plaintiff
testified: "Q. Do you know whether or not the company
could have moved your hogs on from Wakefield without this
delay you speak of? A. Yes, sir. Q. Could...
