banks are constructed upon a I to I slope. The land about this reservoir is open ground. It was the custom for people who had live stock for shipment, awaiting shipment, to graze and hold them on the particular railway lands southeast of the reservoir. Likewise the agent of the carrier admitted, although otherwise testifying, that it was customary to put cattle brought in for shipment in the stockyards. When the plaintiffs came with their cattle near the stockyards they discovered the horses therein. The day was cold, about 15 degrees below, with a cold breeze from the northwest. It had been cold for several days. There was not room for all of their cattle in the yards. One of the plaintiffs saw the agent. He advised them that the cattle were there, that they wanted to ship out, and that there were horses in the corral. Thus he testified:
"Well he (the agent) says to keep them over there handy and just pointed out. He says to keep them handy; that he thought along about 12 or I o'clock there would be an engine along to load us." "I wanted to know where to go. It was a cold day. If I could have got them in the corral there would be some shelter, that shed on the west away from the wind; and he said to keep them over handy, so I took them right on the south just about where he directed me; on the southeast corner of the reservoir, there are some high dirt piles." "Just about where he pointed to keep them handy."
Then he testified that he took the stock over to the place where he was directed; that the agent told him to take the cattle over on the east side of the reservoir where that little creek was and water them; that he could get water there and also there was a little shelter from the dirt piles; that then they proceeded to purchase hay, to dump it on the ground against the reservoir, and to feed it to the cattle; that they found water in this creek against the reservoir. They cut holes in the ice in several places so that the cattle could eat, walk down, and drink also. The ice on this creek was about one foot thick. The water in this creek in some places was two or three feet deep. They saw the openings in the "spoil banks" in the southeast and southwest corners because they went that way and were right near. There were four of them in charge of the stock until about the dinner hour. Then three of them, leaving one La Due, a boy 16 or 17 years old, in charge, proceeded on horseback to town for dinner. The cattle were about four blocks west of Main street, about 30 or 40 rods from the main part of town, as one of the
