Fuller, J.
This was an action to recover damages for the loss of plaintiff’s husband, who is alleged to have been killed by the negligence of defendant. Plaintiff had judgment in the court below, and the defendant ■ appeals. The shipping contract offered in evidence, and relied upon measurably by respondent, and wholly by appellant, was for the shipment of immigrant movables, including a span of horses, from Rush-ville, Neb., to Hot Springs, in this state, and contains the following provisions: “Persons in charge of live stock, who are passed on trains with it, are so passed to take care of the stock, and must ride in the caboose attached to the train. Persons in charge of live stock are prohibited from getting on or off the cars, or walking over them, while they are moving. * * * Persons who are thus passed are passed at their own risk of injury from any cause whatever.” This contract was signed by Charles Heumphreus, as owner of the property, and- by the agent of defendant at Rushville. The conductor in charge of the train at the time the car containing the property of Charles Heumphreus was “picked up” at Rushville, after testifying that on leaving that station, and after he had called “All aboard!” Mr. Heumphreus asked him to wait until he could get into his car, continued as follows: ‘T told him to get into the caboose; that was the place for him to ride; that was a freight train. He got into the caboose. I did not see his contract at that time. I saw it after he got into the caboose and I commenced to take up tickets. He presented the contract as authority for him to travel on that train. I punched it with my punch; as it shows. I ran that train to Chadron, thirty-two miles from Rushville. I didn’t come north of that. That was the end of my division. He didn’t ride all the way in the ca[106] boose car with me. I didn’t see him any more after we got to Hay Springs. I don’t know where he went.” At Ohadron the crew was changed, and a train consisting of a caboose and 13 cars, including the one containing the property above mentioned, was “made up,” and “pulled out” of that station on schedule time. Nothing appears to have been seen of Mr. Heumphreus from the time of his disappearance at Hay Springs until a derailment of a portion of the train, occasioned by the striking of a bull, took place, about midway between the stations of Smithwick and Buffalo Gap, when, by jumping from the car in which his property was placed, he sustained an injury which, upon the following day resulted in death.
As disclosed by the evidence, the cause and attending circumstances of the wreck were not of a character that would sustain an imputation of gross negligence upon the part of appellant’s employes in charge of the train, and that question was not submitted to the jury. The engine and cars of. which the train was composed were in good' order, equipped with all proper appliances, operated by skilled and experienced railroad men, and the track, including rails and roadbed, was in good condition. Although 25 minutes appears to have been spent in running the train, upon a uniform down grade', 7£ miles from the last station to the place where the accident occurred, there is a conflict in the evidence as to its rate of speed when a portion of the train was thrown from the track and Mr. Heum-phreus jumped from his car. One of plaintiff’s witnesses testi-fled that the rate was 25 or 30 miles per hour, and a large number of other witnesses testified, on the part of defendant, that they were running, at the time, from 18 to 20 miles per hour. The accident occurred upon a clear day, and at a point upon a public crossing which it is claimed might have, and perhaps should have, been observed by men in charge of the approaching engine, for a distance of nearly one-half mile. Respondent’s evidence is to the effect that the animal struck was in the rear of about 30 head of cattle, all of which appeared to [107] have passed over the track, and at the time were upon or in the immediate vicinity of the company’s right of way, although appellant’s engineer testified that he saw but two. While it appears that the engineer and trainmen put forth every possible effort to avoid the accident after the animal was discovered to be upon the track, counsel for respondent maintain that they were negligent in not observing earlier so large a number of cattle in dangerous proximity, and in time to stop the train and prevent the calamity which followed. Without discussion of appellant’s evidence, or further pursuing the question as to the ordinary'negligence of the company’s employes, we will assume that the evidence in that regard, uninfluenced by other facts and circumstances, was sufficient to go to the jury, and direct our attention to what appear to be the controlling questions in the case.
With reference to the engine and train, the exact position of the car occupied by the husband of plaintiff does not clearly appear. The engine and the first and second cars attached thereto remained on the track, the next five, including the car of immigrant movables, were derailed, leaving the rear half of the train, including the caboose, upon the track. This caboose contained cushioned seats for 27 passengers, and there were, in all, about 5 occupants. It is safer, by far, to occupy a seat in a caboose at the rear of a train, than to ride in a freight car loaded with farm machinery, horses, household effects, provisions, and poultry. The horses came out of the wreck unharmed but their owner jumped from the car and was killed. Had he remained in the caboose, he would have sustained no injury.
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Fuller, J.
This was an action to recover damages for the loss of plaintiff’s husband, who is alleged to have been killed by the negligence of defendant. Plaintiff had judgment in the court below, and the defendant ■ appeals. The shipping contract offered in evidence, and relied upon measurably by respondent, and wholly by appellant, was for the shipment of immigrant movables, including a span of horses, from Rush-ville, Neb., to Hot Springs, in this state, and contains the following provisions: “Persons in charge of live stock, who are passed on trains with it, are so passed to take care of the stock, and must ride in the caboose attached to the train. Persons in charge of live stock are prohibited from getting on or off the cars, or walking over them, while they are moving. * * * Persons who are thus passed are passed at their own risk of injury from any cause whatever.” This contract was signed by Charles Heumphreus, as owner of the property, and- by the agent of defendant at Rushville. The conductor in charge of the train at the time the car containing the property of Charles Heumphreus was “picked up” at Rushville, after testifying that on leaving that station, and after he had called “All aboard!” Mr. Heumphreus asked him to wait until he could get into his car, continued as follows: ‘T told him to get into the caboose; that was the place for him to ride; that was a freight train. He got into the caboose. I did not see his contract at that time. I saw it after he got into the caboose and I commenced to take up tickets. He presented the contract as authority for him to travel on that train. I punched it with my punch; as it shows. I ran that train to Chadron, thirty-two miles from Rushville. I didn’t come north of that. That was the end of my division. He didn’t ride all the way in the ca[106] boose car with me. I didn’t see him any more after we got to Hay Springs. I don’t know where he went.” At Ohadron the crew was changed, and a train consisting of a caboose and 13 cars, including the one containing the property above mentioned, was “made up,” and “pulled out” of that station on schedule time. Nothing appears to have been seen of Mr. Heumphreus from the time of his disappearance at Hay Springs until a derailment of a portion of the train, occasioned by the striking of a bull, took place, about midway between the stations of Smithwick and Buffalo Gap, when, by jumping from the car in which his property was placed, he sustained an injury which, upon the following day resulted in death.
As disclosed by the evidence, the cause and attending circumstances of the wreck were not of a character that would sustain an imputation of gross negligence upon the part of appellant’s employes in charge of the train, and that question was not submitted to the jury. The engine and cars of. which the train was composed were in good' order, equipped with all proper appliances, operated by skilled and experienced railroad men, and the track, including rails and roadbed, was in good condition. Although 25 minutes appears to have been spent in running the train, upon a uniform down grade', 7£ miles from the last station to the place where the accident occurred, there is a conflict in the evidence as to its rate of speed when a portion of the train was thrown from the track and Mr. Heum-phreus jumped from his car. One of plaintiff’s witnesses testi-fled that the rate was 25 or 30 miles per hour, and a large number of other witnesses testified, on the part of defendant, that they were running, at the time, from 18 to 20 miles per hour. The accident occurred upon a clear day, and at a point upon a public crossing which it is claimed might have, and perhaps should have, been observed by men in charge of the approaching engine, for a distance of nearly one-half mile. Respondent’s evidence is to the effect that the animal struck was in the rear of about 30 head of cattle, all of which appeared to [107] have passed over the track, and at the time were upon or in the immediate vicinity of the company’s right of way, although appellant’s engineer testified that he saw but two. While it appears that the engineer and trainmen put forth every possible effort to avoid the accident after the animal was discovered to be upon the track, counsel for respondent maintain that they were negligent in not observing earlier so large a number of cattle in dangerous proximity, and in time to stop the train and prevent the calamity which followed. Without discussion of appellant’s evidence, or further pursuing the question as to the ordinary'negligence of the company’s employes, we will assume that the evidence in that regard, uninfluenced by other facts and circumstances, was sufficient to go to the jury, and direct our attention to what appear to be the controlling questions in the case.
With reference to the engine and train, the exact position of the car occupied by the husband of plaintiff does not clearly appear. The engine and the first and second cars attached thereto remained on the track, the next five, including the car of immigrant movables, were derailed, leaving the rear half of the train, including the caboose, upon the track. This caboose contained cushioned seats for 27 passengers, and there were, in all, about 5 occupants. It is safer, by far, to occupy a seat in a caboose at the rear of a train, than to ride in a freight car loaded with farm machinery, horses, household effects, provisions, and poultry. The horses came out of the wreck unharmed but their owner jumped from the car and was killed. Had he remained in the caboose, he would have sustained no injury.
Under the contract the company was liable to the extent of $100 per head, in case of an accident resulting in the death or injury to the horses; that is, the value thereof was in no case to be estimated at a greater amount. A witness who stated that he had never shipped horses in a car loaded with immigrant movables was allowed to testify, over appellant’s objection, that four years prior to that time he shipped a stallion [108] for a short distance upon appellant’s line of railway, and rode in the car with the horse. He further testified that he did not know what kind of a contract he had with the company, and it does not appear that any one in its employ gave him permission to ride with the horse, or knew that he was doing so. Seven years before the trial he entered into a contract at Chicago with the Chicago & Northwestern Railway Company for the shipment of horses in less than a car load from that city to Rapid City, S. D., and rode in the car with the horses. With the foregoing experience and means of knowledge as a basis, he was allowed, over a valid objection, to state that it was, at the time to which he had referred, the custom of appellant to allow shippers of live stock in less than car-load lots to ride in the car with such animals, and that it was necessary for some one to do so, in order to help them up, and prevent injury, in case they were knocked down by the cars coming in contact with one another, or in starting or stopping the train. Two or three other witnesses who had shipped live stock at different times over portions of appellant’s line, in less than car-load lots, testified that it was customary and necessary for some one to ride in the car, to take care, of the property, and that they had done so a portion of the time; but none of them stated that their contract required them to ride in the caboose, or that any employe of the company gave them such permission, or knew that they were thus riding in the car. Obviously, a span of horses properly loaded would not ordinarily, in starting or stopping, be thrown on the floor of a car with such a degree of violence that they would be unable to arise without assistance, unless the operators of the train were guilty of actionable negligence, for which appellant would have been liable under its contract. The mere probability of such an occurrence suggests the danger attending a person who occupies a place in an ordinary freight car loaded with farm machinery, household furniture, and horses. By the law of the land, and the contract under which the property in question was shipped, Mr. Heum-[109] pbreus was relieved from the necessity of endangering his life to prevent snch injury to his horses as might be occasioned by the negligence of appellants employes. Under that contract it was the duty of appellant to safely transport, in consideration of 140, the car load of personal property from Rushville to Hot Springs; and as consideration for his transportation the owner thereof agreed to ride in the caboose, the only place upon the train provided for passengers, and to take care of the horses. By riding in the caboose the owner had an ample opportunity to feed and water his horses, and to look after and take care of them at each station, while his car was standing upon the track. This was all the care that his contract contemplated, required, or permitted. Generally, where parties have deliberately entered into and acted upon a valid contract, the terms of which are expressed in unambiguous language, usage will not destroy its force and effect, by making a different contract with reference to the subject-matter thereof. Bank v. Ward, 100 U. S. 206, 207: Barnard v. Kellogg, 10 Wall. 383; Woodruff v. Bank, 25 Wend. 673; Coxe v. Heisley, 19 Pa. St. 243.
It in no manner appears from the evidence offered to establish by usage a waiver of the provision assented to by the shipper in this instance, and by which he was bound to ride in the caboose attached to the train, that any of the shipments about which the witnesses testified were made under a contract containing any such provision. Neither was the evidence sufficient to establish the existence of a custom at the time when or place where the contract under consideration was made or was to be performed. It cannot be said, from the evidence, that Mr. Heumphreus or appellant ever knew that men had ridden upon that line of railway in freight cars with their live stock; and the very fact that he was called upon to promise, and did expressly agree, to ride in a caboose, would not only rebut any presumption that they had entered into a contract with reference to and in accordance with a usage of that character, but conclusively shows a determination upon the [110] part of the company to prevent such an occurrence. The word “usage” is defined by Sec. 4758, Comp. Laws, as follows: “Usage is a reasonable and lawful public custom concerning transactions of the same nature as those which are to be affected thereby, existing at the place where the obligation is to be performed, and either known to the parties, or so well- established, general and uniform, that they must be presumed to have acted with reference thereto.” If it were not a general, uniform, and public custom for men to ride on that road with their stock at that time, so well established that the parties “must be presumed to have acted with reference thereto,” appellant would not be liable, upon the ground of usage, had the contract contained no provision that “persons in charge of live stock, who are passed on trains with it, are so passed to take care of the stock, and must ride in the caboose attached to the train.” As the custom was not shown to be in existence, it could not have been known, and the parties could not have acted -with reference to it. Walls v. Bailey, 49 N. Y. 464. Had all prior contracts expressly provided that shippers of live stock in less than car-load lots must ride in the freight car with their property, or, in the absence of a contract designating where such shippers should ride, had appellant admitted that a usage to that effect had existed and remained in full force upon its line from the time of the first shipment to the date of the contract before us, such usage or agreement would not prevent the parties from making a different arrangement, nor destroy the effect of a contract expressly providing that the shipper must ride in a caboose.
In the case of Player v. Railway Co., 62 Iowa, 723, 16 N. W. 347, it does not appear that the contract contained any provision that plaintiff should ride in the caboose, and the-brake-m'an appears to have directed him to get onto the freight car, which was thrown from the track, and caused plaintiff to sustain the injury, to recover for which the suit was instituted. It was conceded that the negligence of defendant was sufficient to [111] entitle plaintiff to recover, “if he was not guilty of contributory negligence in riding on the freight car, instead of the caboose,” and the court said: “Where one having cattle on the train has time to get aboard the caboose, but fails to do so, and boards a freight car, and rides there, by reason of which fact he is injured, he is guilty of such contributory negligence as will defeat his recovery for such injury, notwithstanding the railway employes may have been negligent in not bringing the caboose within a reasonable distance of the depot. ” In accordance with the express terms of his contract, and in obedience to the direction of the conductor in charge of the train when it left Rushville, and the only person by whom Mr. Heumph-reus appears to have been seen before the accident, he took his seat and rode for a time in the caboose. Appellant had not waived' the provision of its contract. Its conductor was fully authorized to direct him to ride in the caboose, and nothing whatever appears to have occurred which rendered it necessary for him to ride in the freight car. The fact that the owners of grading outfits, valuable stallions, or different animals, whose contracts might have been entirely different, .found it necessary to ride in the car with their stock, in order to protect it from the negligent acts of the company’s employes, has no tendency to prove that it was necessary for the shipper in this case to violate his contract, and to place his life in jeopardy, to prevent injury to ordinary horses, occasioned by such negligence, and for which the company was liable. Had there been no stipulation requiring the owner to ride in the caboose, or had a usage constituting a waiver of such provision been first established, and the character of the particular horses included in the shipment been shown to be such that they required constant attention, witnesses who had, under the same kind of a contract, repeatedly shipped such horses, would, perhaps, under the Illinois case relied upon by respondent, be competent to testify as to the necessity of some one being in that particular car to protect the property. In that case the party who sustains a per[112] sonal injury was riding in a car with two valuable stallions that were being shipped together. By suddenly stopping the car thus occupied, the man was thrown down and injured. The contract of shipment prohibited him from riding in. the car with the horses. Witnesses were permitted to testify at the trial that where two valuable stallions are shipped in a car together, under such a contract, it is not only necessary, but the constant practice of the company, to allow a man to ride in the car with them. The court said: “If it was absolutely necessary, in order to protect plaintiffs property, for plaintiff to ride in the car with the horses, and the company had waived the prohibitory clause in the contract of shipment, and consented that plaintiff ride in the same car with the horses, evidence tending to prove these facts was competent for the jury.” Railroad Co. v. Dickson, 32 N. E. 380. There being no evidence that appellant herein had waived the prohibitory clause in the contract before us, or consented that the deceased might ride in the car with his horses, and the reason and necessity therefor not being shown, the case above cited is of little assistance in determining the rights of the parties to this action. An emergency might arise, or special circumstances exist, by which a person who had been injured by riding in a freight car, with live stock, in violation of an agreement to care for the same and ride in the caboose, would be relieved from contributory negligence, but nothing to bring the case within such an exception to the general rule appears in the record before us. The conclusion to which we are brought renders unnecessary a consideration of appellant’s contention that the rule laid down in the case of Meuer v. Railway Co. (S. D.) 59 N. W. 945, should be applied to this case, although the same was tried in the court below upon a theory that suggests a waiver of the provision of the contract construed in that case; and, furthermore, it will not«be essential to a determination of this appeal to consider assignments of error relating to the rulings of the court upon questions of evidence, and to its instructions to the jury. [113] He could ride in the caboose and take care of his horses, bnt he conld not ride in the caboose and at the same time ride in the freight car. The former is just what he undertook, by his contract, to do.
When respondent had rested, and again at the conclusion of all the evidence, appellant moved for the direction of a verdict against the plaintiff, and in favor of the defendant, for the reason, among others, that the undisputed evidence shows that the contract between the parties expressly provided that the deceased must ride in the caboose attached to the train, and that he was warned by the conductor against riding in the freight car, and directed to ride in the caboose, and the force and effect of such contract had not been destroyed or affected by the introduction of parol evidence. We think this motion should have been sustained. The judgment appealed from is reversed, and a new trial is ordered.