Bartch, J.:
The plaintiff brought this action to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. At the trial - of the cause, when the plaintiff rested his case, he was non-suited, and thereafter a motion for a new trial was refused. Thereupon lie appealed to this court, claiming that the trial court erred in granting the motion for .a nonsuit and dismissed the action, and in overruling and denying his motion for a new trial. The facts disclosed by tb.e plaintiff’s testimony, and admitted by the pleadings, are substantially as follows: The defendant, at the time the plaintiff received the injury complained of, operated a railroad between Ogden, Utah, and San Francisco, Cal. On the 21st day of January, 1892, at Iron Point, in Nevada, the defendant entered into a contract with one Thomas Nelson for the transportation of 11 cars of sheep over its railroad to San Francisco. The contract provided free passage on the stock train for the plaintiff, who was an attendant to care for the sheep, and that the defendant, by reason of such free passage, would not be liable for any negligence upon its part by which the plaintiff might be injured. Under this contract, Thomas [281]*281and Charles Nelson, the owners, loaded the sheep into cars- furnished bj the company. Each car had doors, through which the attendants could pass, at either end, and at the rear of the cars for the sheep there was attached a caboose for the use of the attendants and trainmen; and these cars and caboose remained so connected for two days, until they arrived at Truckee. There the servants of the defendant, with the knowledge of the conductor of the train, although expressly objected to by the plaintiff and Nelson, switched three refrigerator cars into the train, between the caboose and sheep cars. These cars so placed in the train had no doors at the end, and were a foot to 18 inches higher than the oars containing the sheep, and had a running board on top. When sheep are being shipped in cars, they are liable to get killed by crowding onto each other and trampling each other down. To prevent this, it is the duty of the attendants to pass through the train and help them up. Before the train started from Truckee, the plaintiff, Nelson, and one Scott went forward through the cars, as was the custom, to lift up the sheep which had fallen down, and it pulled out while the men were thus engaged. Switching of the train prevented them from attending the sheep before stalling. The train had not proceeded far to the westward, when, their work having been completed, the plaintiff and Nelson got upon the top of the cars to return to the caboose, .because they could not pass through the refrigerator cars. Thus returning, with their backs towards the engine, and having reached the refrigerator cars next to the caboose, each one of them was struck in the' back of the head by a crosspiece of the overhead portion of a snowshed, and Nelson was killed, and the plaintiff severely and permanently injured. Since the time of the construction of the snowshed in question, the defendant has been using freight, refriger[282]*282ator, and furniture cars, which are higher than those in use at that time, but had not raised that snowshed, although the new ones built since were made higher. The one which caused the injury is situated on the side of a mountain which is not steep enough to indicate snow-slides or avalanches, and there is nothing to interfere with building it higher, and the plaintiff had no notice of its insufficient height. It was customary for, and the defendant knowingly permitted, the attendants upon stock to return to the caboose upon the running boards, while the train was in motion. On the occasion in question the weather was very cold and stormy, and there were no accommodations for the attendants on the stock except in the caboose. The conductor of the train knew that the plaintiff and Nelson were attendants on the sheep, and that they were somewhere on the train, and, in order to reach the caboose, would be required to return over the tops of the cars, on account of the refrigerator cars which had been put next to the caboose. It was necessary for them to care for and help up the sheep, and then leave the car as soon as practicable, as their presence would disturb them and cause them to move together and tread upon each other. The plaintiff knew that there were snowsheds on the road west of Truckee, but did not know just where they were. He knew that they had passed through one snowshed, and expected to hear the whistle, as a signal, before entering another, as this was a requirement, under the rules of the defendant; but he heard none, and there was' no warning whatever given of the obstructions of snowsheds. When the plaintiff and Nelson were struck, one Pascal called out to stop the train, and the train was stopped immediately.
Assuming these facts to be true, which is the rule for the purposes of a nonsuit, the question is, do they present such a case of negligence on the part of the defendant, [283]*283and sucli a want of contributory negligence on the part of the plaintiff, as will render the defendant liable, and warrant a recovery? Would they, unexplained and uncontradicted by the defendant, support a verdict of a jury? Counsel for the appellant contend that the respondent was guilty of negligence in operating its cars tbrougb a snowshed of insufficient beigbt to admit the passage of the appellant walking on the running board, in placing the refrigerator cars next to the caboose, and in failing to sound the whistle or give any warning before the train entered the snowshed. On the other band, counsel for the respondent insist that it was an act of gross negligence on the part of the appellant to walk on top of the cars on the occasion in question, and that, therefore, be cannot recover.
In negligence there is no purpose to perpetrate a wrong upon another, nor to omit to perform a duty towards another. There is, however, a want of proper skill or care or attention. Such is the general idea that where one person does or omits to do an act which causes injury to another., not intentionally, and there is an absence of proper skill or care or attention, such doing or omitting to do the act is characterized as negligence, and the author of the injury is liable therefor, in the absence of negligence on the part of the person injured. It has been defined as, in its civil relation, being such an inadvertent imperfection by a responsible human agent, in the discharge of a legal duty, as immediately produces, in an ordinary and natural sequence, a damage to another. I3ouv. Law Diet. Legal duty is one of the essential elements in negligence, and, unless it exists in favor of the person injured, be can have no redress. Even though such duty is owed to the public in general, still, unless the injured person can show that for some reason it was specially owing to him, be can maintain no action in his [284]*284private capacity. It is incumbent upon the plaintiff, in every action for negligence, to aver and prove facts sufficient to show that the defendant owes him a duty, and what it is. Such duty must be to use care, which includes skill and vigilance, and the degree of which must be such as a reasonable and prudent person would use under similar circumstances, or such as the existing circumstances demand. 1 Shear. & R. Beg. §§ 8, 9.
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Bartch, J.:
The plaintiff brought this action to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. At the trial - of the cause, when the plaintiff rested his case, he was non-suited, and thereafter a motion for a new trial was refused. Thereupon lie appealed to this court, claiming that the trial court erred in granting the motion for .a nonsuit and dismissed the action, and in overruling and denying his motion for a new trial. The facts disclosed by tb.e plaintiff’s testimony, and admitted by the pleadings, are substantially as follows: The defendant, at the time the plaintiff received the injury complained of, operated a railroad between Ogden, Utah, and San Francisco, Cal. On the 21st day of January, 1892, at Iron Point, in Nevada, the defendant entered into a contract with one Thomas Nelson for the transportation of 11 cars of sheep over its railroad to San Francisco. The contract provided free passage on the stock train for the plaintiff, who was an attendant to care for the sheep, and that the defendant, by reason of such free passage, would not be liable for any negligence upon its part by which the plaintiff might be injured. Under this contract, Thomas [281]*281and Charles Nelson, the owners, loaded the sheep into cars- furnished bj the company. Each car had doors, through which the attendants could pass, at either end, and at the rear of the cars for the sheep there was attached a caboose for the use of the attendants and trainmen; and these cars and caboose remained so connected for two days, until they arrived at Truckee. There the servants of the defendant, with the knowledge of the conductor of the train, although expressly objected to by the plaintiff and Nelson, switched three refrigerator cars into the train, between the caboose and sheep cars. These cars so placed in the train had no doors at the end, and were a foot to 18 inches higher than the oars containing the sheep, and had a running board on top. When sheep are being shipped in cars, they are liable to get killed by crowding onto each other and trampling each other down. To prevent this, it is the duty of the attendants to pass through the train and help them up. Before the train started from Truckee, the plaintiff, Nelson, and one Scott went forward through the cars, as was the custom, to lift up the sheep which had fallen down, and it pulled out while the men were thus engaged. Switching of the train prevented them from attending the sheep before stalling. The train had not proceeded far to the westward, when, their work having been completed, the plaintiff and Nelson got upon the top of the cars to return to the caboose, .because they could not pass through the refrigerator cars. Thus returning, with their backs towards the engine, and having reached the refrigerator cars next to the caboose, each one of them was struck in the' back of the head by a crosspiece of the overhead portion of a snowshed, and Nelson was killed, and the plaintiff severely and permanently injured. Since the time of the construction of the snowshed in question, the defendant has been using freight, refriger[282]*282ator, and furniture cars, which are higher than those in use at that time, but had not raised that snowshed, although the new ones built since were made higher. The one which caused the injury is situated on the side of a mountain which is not steep enough to indicate snow-slides or avalanches, and there is nothing to interfere with building it higher, and the plaintiff had no notice of its insufficient height. It was customary for, and the defendant knowingly permitted, the attendants upon stock to return to the caboose upon the running boards, while the train was in motion. On the occasion in question the weather was very cold and stormy, and there were no accommodations for the attendants on the stock except in the caboose. The conductor of the train knew that the plaintiff and Nelson were attendants on the sheep, and that they were somewhere on the train, and, in order to reach the caboose, would be required to return over the tops of the cars, on account of the refrigerator cars which had been put next to the caboose. It was necessary for them to care for and help up the sheep, and then leave the car as soon as practicable, as their presence would disturb them and cause them to move together and tread upon each other. The plaintiff knew that there were snowsheds on the road west of Truckee, but did not know just where they were. He knew that they had passed through one snowshed, and expected to hear the whistle, as a signal, before entering another, as this was a requirement, under the rules of the defendant; but he heard none, and there was' no warning whatever given of the obstructions of snowsheds. When the plaintiff and Nelson were struck, one Pascal called out to stop the train, and the train was stopped immediately.
Assuming these facts to be true, which is the rule for the purposes of a nonsuit, the question is, do they present such a case of negligence on the part of the defendant, [283]*283and sucli a want of contributory negligence on the part of the plaintiff, as will render the defendant liable, and warrant a recovery? Would they, unexplained and uncontradicted by the defendant, support a verdict of a jury? Counsel for the appellant contend that the respondent was guilty of negligence in operating its cars tbrougb a snowshed of insufficient beigbt to admit the passage of the appellant walking on the running board, in placing the refrigerator cars next to the caboose, and in failing to sound the whistle or give any warning before the train entered the snowshed. On the other band, counsel for the respondent insist that it was an act of gross negligence on the part of the appellant to walk on top of the cars on the occasion in question, and that, therefore, be cannot recover.
In negligence there is no purpose to perpetrate a wrong upon another, nor to omit to perform a duty towards another. There is, however, a want of proper skill or care or attention. Such is the general idea that where one person does or omits to do an act which causes injury to another., not intentionally, and there is an absence of proper skill or care or attention, such doing or omitting to do the act is characterized as negligence, and the author of the injury is liable therefor, in the absence of negligence on the part of the person injured. It has been defined as, in its civil relation, being such an inadvertent imperfection by a responsible human agent, in the discharge of a legal duty, as immediately produces, in an ordinary and natural sequence, a damage to another. I3ouv. Law Diet. Legal duty is one of the essential elements in negligence, and, unless it exists in favor of the person injured, be can have no redress. Even though such duty is owed to the public in general, still, unless the injured person can show that for some reason it was specially owing to him, be can maintain no action in his [284]*284private capacity. It is incumbent upon the plaintiff, in every action for negligence, to aver and prove facts sufficient to show that the defendant owes him a duty, and what it is. Such duty must be to use care, which includes skill and vigilance, and the degree of which must be such as a reasonable and prudent person would use under similar circumstances, or such as the existing circumstances demand. 1 Shear. & R. Beg. §§ 8, 9. Applying these principles to the case at bar, in order that the plaintiff may be entitled to recover, — there being no question made as to the pleadings, — his proof must show that the defendant on the occasion in question owed him a duty, and that, in the performance of which, it failed to exercise ordinary care, skill, or vigilance. That this was shown by the testimony of the plaintiff hardly admits of doubt or controversy, upon consideration of the facts above set out. It appears that the defendant is a common carrier, engaged in the transportation of passengers and freight. By contract, it engaged to carry the ■plaintiff as an attendant upon the stock in its cars. He thereby became a passenger, and entitled to protection as a passenger, on such a train; and this regardless of any clause in the contract exempting the carrier from liability for the negligence of agents and servants, because such clause was against the policy of the law, and therefore without effect. Such carriage was not gratuitous, because the contract was the moving, and a valuable, consideration. When the company had contracted to carry, and the conductor of the train had received him, it was liable for any injury which might befall him through the negligence of its agents and servants, the same as though he had actually paid his fare before entering its cars, and the defendant was bound to exercise the same care. Hutch. Carr. § 555b; Patt. Ry. Acc. Law, §§ 211, 212; Railroad Co. v. Horst, 93 U. S. 291; Railroad Co. v. Lock[285]*285wood, 17 Wall. 357; Railroad Co. v. Curran, 19 Ohio St. 1; Railroad Co. v. Henderson, 51 Pa. St. 315; Erskine v. Loewenstein, 82 Mo. 301; Lawson v. Railroad Co., 64 Wis,. 447, 24 N. W. 618. Being on the train, it was the plaintiff’s duty to care for the sheep. After haying attended to his duty in this regard, he was, of necessity, compelled to return to the caboose, because there was no place pro-, vided for him in the sheep cars to remain there, and to do so would disturb the sheep and produce the very effects which it was his duty to prevent. He could not return through the cars, on account of the refrigerator cars, through which he could not pass, having .been placed next to the caboose, and therefore attempted to' return over the top of them, as stockmen had been accustomed to do.
The conductor, knew he was- somewhere on the train, and was compelled to go over the tops of the cars to get to the caboose, but gave him no warning of its approaching the snowshed, which was of insufficient height, to permit him to pass through safely while walking on the running boards. Under these existing facts and circumstances, it is not absolutely necessary or material, to-decide whether or not it was negligence per se, on the part of the railroad company, to maintain the snowshed in question at an insufficient height to allow a person to pass through safely while walking on top of the moving cars, although we are inclined to the affirmative of this view, as founded on both reason and justice. If, however, for any reason, an overhead structure, which exposes persons who are rightfully on a moving stock train, as was the plaintiff, to unusual risks, may be lawfully maintained at such height, then every principle of justice, as well as the exercise of ordinary care, requires that the company which maintains such structure shall. give warning in some way — either by word, or other [286]*286proper method — of the trains approaching the same, to all persons whose duties may expose them to the danger of being injured because of the structure. The giving of such warning is a duty which such company cannot fail to perform, and escape liability for injuries which result as a natural sequence, because of such failure, and in the performance of such duty it is bound to exercise due care. We are aware that some courts seem to maintain a contrary view, but we think the doctrine above stated is supported by the weight of authority, and it is beneficial to both the passenger and the company. It tends to protect the former, and warns the latter against the consequences which result from the absence of proper care and precaution. While such attendants on stock in transit on a railroad must assume all ordinary hazards incident to such service, still it is the duty of the company which transports the stock to provide reasonably safe structures and facilities for such transportation, and parties contracting with such carriers have the right to assume that such duty has been discharged. Beach, Contrib. Neg. § 134; Shear. & R. Neg. §§ 198, 200; Railroad Co. v. Horst, supra; Railway Co. v. Carpenter, 5 C. C. A. 551, 56 Fed. 451; Railway Co. v. Irwin, 37 Kan. 701, 16 Pac. 146; Railroad Co. v. Johnson, 116 Ill. 206, 4 N. E. 381; Railroad Co. v. Wright (Ind. Sup.), 17 N. E. 584; Railroad Co. v. Welch, 52 Ill. 183; Railroad Co. v. Rowan 104 Ind. 88.
We conclude that the appellant was rightfully on the train, and had the right to assume that the snowshed was a safe structure, having received no notice to the contrary; that the respondent, on the occasion of the accident, was guilty of negligence, under the circumstances indicated by the proof; and that there was presented a question for the jury, and not one of law for the court. Whether or not the appellant, under the peculiar facts [287]*287and circumstances of tbis case, was Mmself guilt j of a want of ordinary care, which contributed to the injury, was also a question for tlie jury. The court was not warranted, under the circumstances shown by the record, in deciding, as a matter of law, that the appellant was guilty of such contributory negligence as precluded a recovery, and therefore was not warranted in granting the nonsuit, or denying the motion for a new trial. Negligence is never considered as a question of law for the court, unless the facts shown by the evidence are such that all reasonable men must draw the same conclusion from a consideration of them, or are such, as would warrant the court in setting aside the verdict of the jury if one were based on them. For a further discussion of the subject of nonsuit, we refer to the case of Lowe v. Salt Lake City, 13 Utah 91, 44 Pac. 1050.
As a new trial must be granted, we do not consider it necessary to discuss any other questions presented in the record. The judgment is reversed, with costs, and the cause remanded, with directions to the court below to grant a new trial.
ZaNE, C. J., concurs.