Dueeie, O.
Troyer, the defendant in error, was injured in the freight yards of the plaintiff in error, at Lincoln, between 11 and 12 o’clock on the night of July 14, 1898. He left Aurora with a car-load of hogs on stock train No. 48, and, on its arrival at Lincoln, the train with the engine stopped at or near the O street viaduct and the rear end of the train some thirty car-lengths to the north thereof. It was the custom of the railroad company to make up another drain at Lincoln, taking such stock as was destined for South Omaha into the newly made-up train, and the stockmen were required to leave the caboose of the Aurora train and walk between the tracks in the yard, along that train, to enter another caboose which would be attached to the train destined for South Omaha. On the arrival of the train in Lincoln defendant in error and other stock shippers in the caboose -were told to leave it and make their way to the depot, awaiting the making up of another train. He left the caboose on the right hand side of the train and, together with other shippers and passengers Avho had occupied the caboose with him, made his way along the west side of his train until he had reached the south end thereof, from which the engine had, at that time, been detached. The tracks in the yard lay parallel with each other. The distance from the middle of one track to the middle of the other is 13 feet 2 inches, and between the west rail of one and the east rail of the other, 8 feet. The cars and engines project over these rails 2 feet on each side, leaving a distance of 4 feet between cars stand[289]*289ing on adjacent tracks. On his way from the caboose to the south end of the train, defendant in error met a switch engine going north on the track next west. This engine had a headlight at each end, and we may assume that at that time, and afterwards at the time of his injury, the bell of the engine was ringing. One Green accompanied the defendant in error and was just in front of him. About the time they reached the south end of the train they had some conversation about going to the lunch counter for a lunch, and as the defendant turned to the left to cross the track on which his train stood, the switch engine, which but a few moments before had passed north, returned, and Troyer was struck by the drawbar of the engine on his left side and shoulder and thrown south some 35 or 40 feet between the rails of the track which he was about to cross. Defendant in error and Green both testified that they did not hear the approach of the engine or the ringing of the bell. The only defense made was contributory negligence on the part of the defendant in error. Judgment went in favor of defendant in error; and the railroad company has brought the record here for review.
The defendant in error was traveling on a drover’s contract and pass usually issued to shippers of stock. The law is well settled in this state, following, we think, the weight of authority elsewhere, that a shipper who, for the purpose of enabling him to care for his stock in transit,' receives a drover’s pass is not, while accompanying his stock, entitled to all the rights and privileges of an ordinary passenger for hire; that he assumes such risks and inconveniences as necessarily attend upon caring for such stock; but that, so modified, the liability of the railroad company to such shipper, for personal injuries sustained by him from the negligence of the company or its employees, is that of a common carrier for hire. Omaha & R. V. R. Co. v. Crow, 47 Neb. 84, 54 Neb. 747; Missouri P. R. Co. v. Tietken, 49 Neb. 130.
In Omaha & R. V. R. Co. v. Crow, 54 Neb. 747, it is said:
[290]*290“On the former hearing it was held that one who is being transported over a line of railroad on what has been called a ‘shipper’s ticket’ is not a passenger in such sense as to render applicable to him all the rules governing the transportation of passengers on passenger trains. Such a person is charged with the care of his live stock while in transit. He must ride on the train with the animals. He must care for them en route, and in various ways subject himself to perils not incident to ordinary travel. To the extent that such requirements interfere with the operation of ordinary rules of liability, the duty of the carrier is accordingly modified, and no further. The statute fixing the liability of carriers to ordinary passengers is, from the nature of the case, not applicable; but, subject to the different conditions reasonably arising from the special arrangements and duties created by such a contract, the common law as to carriers of passengers applies. The carrier, subject to such modifications, is still bound to the exercise of the highest degree of care of which human foresight is capable; and contributory negligence is a defense. The difference between such a case and the ordinary one of a passenger affects also the latter question. The duties imposed on the passenger, of riding on a freight train and caring for his stock, excuse conduct which would be grossly negligent on the part of a passenger on a passenger train.”
This rule, which has become the settled law of this state, disposes of the contention made by the plaintiff in error that Troyer assumed any risks not usually incident to travelers on freight trains and such as the care of his stock in transit demanded of him. Conceding to the plaintiff the right to stop the caboose at a great distance from the station and to require the shippers to walk between its tracks for a distance of 30 car-lengths for the purpose of changing cars to pursue their journey, it was its duty to furnish a safe path along which the shippers might walk, and to See that the path was not made dangerous by the operation of its train or engines. The shippers, on alight[291]*291ing from the caboose and pursuing the directions given them by the employees, had a right to rest in the belief that the company would do nothing to endanger their progress. No duty rested on them to anticipate that the company would do any act to expose them to danger, and they were required to guard only against known and apparent peril.
In Jewett v. Klein, 27 N. J. Eq. 550, it is held that a person who, in passing from the depot to the train he was about to take, was obliged to cross an intervening track, was not guilty of contributory negligence in that he did not, before approaching the train, look up and down the track to see whether there was danger from an approaching train, and in that he approached the train diagonally from the platform to the station and before his train had come to a full stop. Referring to this case the supreme court of Colorado, in Atchison, T, & S. F. R. Co. v. Shean, 18 Colo. 368, 33 Pac. 108, said:
“By the foregoing and other well considered cases it is settled that a passenger on a railroad, Avhile passing from the cars to the depot, is not required to exercise that degree of care in crossing the railroad track that is imposed upon other persons, and that he has the right to assume that the company Avill discharge its duty in making the way safe; and, relying on this assumption, may neglect precautions that are ordinarily imposed upon a person not holding that relation; and this distinction is to be taken into consideration in determining the propriety of his conduct.” *
In the case of Pennsylvania R. Co. v. White, 88 Pa. St. 327, it is said:
“It is the duty of the company to provide for the safe receiving and discharging of passengers.
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Dueeie, O.
Troyer, the defendant in error, was injured in the freight yards of the plaintiff in error, at Lincoln, between 11 and 12 o’clock on the night of July 14, 1898. He left Aurora with a car-load of hogs on stock train No. 48, and, on its arrival at Lincoln, the train with the engine stopped at or near the O street viaduct and the rear end of the train some thirty car-lengths to the north thereof. It was the custom of the railroad company to make up another drain at Lincoln, taking such stock as was destined for South Omaha into the newly made-up train, and the stockmen were required to leave the caboose of the Aurora train and walk between the tracks in the yard, along that train, to enter another caboose which would be attached to the train destined for South Omaha. On the arrival of the train in Lincoln defendant in error and other stock shippers in the caboose -were told to leave it and make their way to the depot, awaiting the making up of another train. He left the caboose on the right hand side of the train and, together with other shippers and passengers Avho had occupied the caboose with him, made his way along the west side of his train until he had reached the south end thereof, from which the engine had, at that time, been detached. The tracks in the yard lay parallel with each other. The distance from the middle of one track to the middle of the other is 13 feet 2 inches, and between the west rail of one and the east rail of the other, 8 feet. The cars and engines project over these rails 2 feet on each side, leaving a distance of 4 feet between cars stand[289]*289ing on adjacent tracks. On his way from the caboose to the south end of the train, defendant in error met a switch engine going north on the track next west. This engine had a headlight at each end, and we may assume that at that time, and afterwards at the time of his injury, the bell of the engine was ringing. One Green accompanied the defendant in error and was just in front of him. About the time they reached the south end of the train they had some conversation about going to the lunch counter for a lunch, and as the defendant turned to the left to cross the track on which his train stood, the switch engine, which but a few moments before had passed north, returned, and Troyer was struck by the drawbar of the engine on his left side and shoulder and thrown south some 35 or 40 feet between the rails of the track which he was about to cross. Defendant in error and Green both testified that they did not hear the approach of the engine or the ringing of the bell. The only defense made was contributory negligence on the part of the defendant in error. Judgment went in favor of defendant in error; and the railroad company has brought the record here for review.
The defendant in error was traveling on a drover’s contract and pass usually issued to shippers of stock. The law is well settled in this state, following, we think, the weight of authority elsewhere, that a shipper who, for the purpose of enabling him to care for his stock in transit,' receives a drover’s pass is not, while accompanying his stock, entitled to all the rights and privileges of an ordinary passenger for hire; that he assumes such risks and inconveniences as necessarily attend upon caring for such stock; but that, so modified, the liability of the railroad company to such shipper, for personal injuries sustained by him from the negligence of the company or its employees, is that of a common carrier for hire. Omaha & R. V. R. Co. v. Crow, 47 Neb. 84, 54 Neb. 747; Missouri P. R. Co. v. Tietken, 49 Neb. 130.
In Omaha & R. V. R. Co. v. Crow, 54 Neb. 747, it is said:
[290]*290“On the former hearing it was held that one who is being transported over a line of railroad on what has been called a ‘shipper’s ticket’ is not a passenger in such sense as to render applicable to him all the rules governing the transportation of passengers on passenger trains. Such a person is charged with the care of his live stock while in transit. He must ride on the train with the animals. He must care for them en route, and in various ways subject himself to perils not incident to ordinary travel. To the extent that such requirements interfere with the operation of ordinary rules of liability, the duty of the carrier is accordingly modified, and no further. The statute fixing the liability of carriers to ordinary passengers is, from the nature of the case, not applicable; but, subject to the different conditions reasonably arising from the special arrangements and duties created by such a contract, the common law as to carriers of passengers applies. The carrier, subject to such modifications, is still bound to the exercise of the highest degree of care of which human foresight is capable; and contributory negligence is a defense. The difference between such a case and the ordinary one of a passenger affects also the latter question. The duties imposed on the passenger, of riding on a freight train and caring for his stock, excuse conduct which would be grossly negligent on the part of a passenger on a passenger train.”
This rule, which has become the settled law of this state, disposes of the contention made by the plaintiff in error that Troyer assumed any risks not usually incident to travelers on freight trains and such as the care of his stock in transit demanded of him. Conceding to the plaintiff the right to stop the caboose at a great distance from the station and to require the shippers to walk between its tracks for a distance of 30 car-lengths for the purpose of changing cars to pursue their journey, it was its duty to furnish a safe path along which the shippers might walk, and to See that the path was not made dangerous by the operation of its train or engines. The shippers, on alight[291]*291ing from the caboose and pursuing the directions given them by the employees, had a right to rest in the belief that the company would do nothing to endanger their progress. No duty rested on them to anticipate that the company would do any act to expose them to danger, and they were required to guard only against known and apparent peril.
In Jewett v. Klein, 27 N. J. Eq. 550, it is held that a person who, in passing from the depot to the train he was about to take, was obliged to cross an intervening track, was not guilty of contributory negligence in that he did not, before approaching the train, look up and down the track to see whether there was danger from an approaching train, and in that he approached the train diagonally from the platform to the station and before his train had come to a full stop. Referring to this case the supreme court of Colorado, in Atchison, T, & S. F. R. Co. v. Shean, 18 Colo. 368, 33 Pac. 108, said:
“By the foregoing and other well considered cases it is settled that a passenger on a railroad, Avhile passing from the cars to the depot, is not required to exercise that degree of care in crossing the railroad track that is imposed upon other persons, and that he has the right to assume that the company Avill discharge its duty in making the way safe; and, relying on this assumption, may neglect precautions that are ordinarily imposed upon a person not holding that relation; and this distinction is to be taken into consideration in determining the propriety of his conduct.” *
In the case of Pennsylvania R. Co. v. White, 88 Pa. St. 327, it is said:
“It is the duty of the company to provide for the safe receiving and discharging of passengers. It is bound to exercise the strictest Adgilance not only in carrying them to their destination, but also in setting them down safely, if human care and foresight can do so.”
The fact that on turning to the left to cross the track where the train on Avhich he arrived was standing, the [292]*292drawbar of the engine coining south on the track adjacent, and to the west, struck him on the left shoulder and the left side of his body, shows conclusively that he must, at the time, have been standing west of the center line between the two tracks and within 2 feet of- the east rail of the track on which the engine was being operated. This can not of itself be taken as negligence, such as to present a recovery. With a clear space, i feet only in which to walk, it is evident that the variation of more than 1 foot from the center of the path caused by a false step, or confusion caused by the operations going on in a yard where so much business is done, would throw him in position to be struck by a passing car or engine. Having placed him in the dangerous position, the company owed him a greater degree of vigilance than under ordinary circumstances. If Troyer had seen the approach of the engine and knew of his dangerous position, it would be his duty to use all reasonable care and diligence in avoiding the injury; but his testimony, and that of Green who accompanied him, is to the effect that they did not hear the approach of the engine, and, as before stated, .they were under no obligations to be alert in watching for the approach of a train or engine which the company had no right to operate in such a manner as to endanger them, until they had reached the station and were out of the way of danger. To say that one is negligent in not looking for danger which he has no reason to suspect, and which he knows it is the duty of the company to prevent, is to cast upon him a burden which the law does not justify. In this case there could be no negligence on the part of the defendant in error unless he knew or was given notice of the approach of the engine. That he did not, has been established by the verdict of the jury upon evidence ample to sustain such finding. If he were an employee of the company, an entirely different rule would obtain, and the cases cited by the plaintiff in error would be applicable; but, being a passenger, he had every right to suppose that the company would use the utmost care in seeing that no danger overtook him on his way from the caboose to the station.
1. Common Carrier: Shipper op Live Stock. A person traveling on a freight train on a stock shipper’s pass or contract, for the purpose of attending to and caring for the live stock being shipped on such train, sustains the relation to the carrier of passenger but in a restricted and modified sense.
а. -: Liability. Such, a person, while so traveling, assumes such risks and inconveniences .as necessarily attend upon caring for such stock and such as are incident to the means and methods employed by the company in the operation of its freight trains, and, as thus modified, the liability of the railway company to such shipper for personal injuries by him sustained, by reason of the negligence of its employees, is that of a carrier for hire.
б. Risks Assumed by Shippers. A shipper thus traveling on a freight train carrying live stock does not assume the risk of negligence by the carrier, but only such dangers as result from his peculiar duties while the railroad is being carefully operated.
e. Duty of Carrier. In such a ease, the duty devolves upon the carrier to exercise the highest degree of care, skill and diligence for the safety of the passenger practically consistent with the efficient use and operation of the mode of transportation adopted.
2. .Negligence: Question eor Jury: Finding: Evidence. In an action for damages for negligence against a railway company for personal injury to a shipper of stock, riding in a freight train, by coming in collision with a moving switch engine in the yards of the defendant company, it is made to appear that the train on which the plaintiff was being carried came into the defendant’s •freight yards about midnight, and that he was required to change way-cars before proceeding farther on his journey. The way-car on which he had been riding was left about 30 car-lengths from the place where he was required to take another one. To reach * the other way-car the plaintiff and other passengers were required to walk the length of the train between the track on which it stood and another track 8 feet distant. The distance between cars or engines on these two adjacent tracks was 4 feet. While walking along the train and toward its head, where the other way-car was supposed to be, a switch engine passed the plaintiff on the adjacent track, going in an opposite direction; and about the time he reached the head of the train on his way to the other way-car, the same switch engine returning and moving in the same direction overtook and struck him, inflicting an injury which is sought to be compensated in damages. Held, Under the evidence, that the question of the alleged negligence of the company was a matter for the jury to determine under proper instructions of the court, and that the evidence is sufficient to warrant a finding that the defendant company was guilty of actionable negligence which was the proximate cause of the injury complained of.
[293]*293We discover no error in the record, and recommend the affirmance of the judgment.
Pound, C., concurs.
By the Court:
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.