transporting livestock, when it tenders facilities and utilities for the reception of cattle preparatory to shipment, to furnish the same in a suitable and reasonably safe condition,
Carriers-carrier's breach of duty and contributory negligence as to stock lost in wandering into reservoir before shipment held for the jury.
2. Where a carrier maintains stockyards and also a plot of ground upon which cattle are customarily held preparatory to shipment and, where prospective shippers are directed by the carrier to feed, water and hold their cattle upon such plot of ground preparatory to and while waiting shipment by reason of occupancy of the stockyards, and where, while there, 60 head of cattle wander through unprotected openings in small banks of an artificial reservoir there maintained by the carrier, and off steep banks into an open space of thin ice and deep water, occasioning the loss of 44 head, it is held that the carrier's breach of duty and the shippera contributory negligence were questions of fact for the jury.
Opinion filed Oct. 5. 1921. Rehearing denied Oct. 29, 1921.
Action in District Court, Stark County, Crawford, J.
From an order granting judgment notwithstanding the verdict, the plaintiffs have appealed.
Reversed and judgment ordered upon the verdict.
Simpson & Mackoff, and S. Pomerance, for appellant.
Young, Conmy & Young, for respondent.
Statement
Bronson, J. This is an action against a common carrier to recover damages for negligence resulting in the loss of some 44 head of live stock. Upon trial, the jury returned a verdict in favor of the plaintiff for $2,640. Thereafter the trial court, upon motion made, ordered judgment notwithstanding the verdict for the defendant. From the judgment entered accordingly, and from the orders made therefor, the plaintiffs have appealed. The record discloses evidence as follows:
In November, 1919, the plaintiffs, as co-partners, were engaged in the cattle business and were operating a ranch some 25 miles south of Belfield. On November 15, 1919, they made written order for six cars
