ing as a protection and barrier, also perhaps were a snare by reason of the unguarded and nonwarning openings through them. The water at a certain place in the north end remained unfrozen, or with a thin coating of ice, in cold weather, and so existed when the cattle were drowned. There is evidence, although disputed, to that effect. If this reservoir were within the confines of the stockyards proper with no further protection than existed upon the adjacent ground of the carrier, it surely might not be said, as a matter of law, that the carrier had fulfilled its entire duty in providing for the receiving of cattle, if they should be drowned or be killed, as they were in this case. The question of the breach of this duty by the carrier must be similarly considered, although such reservoir was situated without the stockyards proper, if the facts warrant consideration by the jury of this duty. If the plaintiffs were directed and permitted by the carrier to take, hold, feed, and water these cattle near the reservoir, where they were by reason of the yards then being occupied and insufficient to contain plaintiffs’ proposed shipment, if the reservoir, by reason of its proximity, the unguarded openings, and the open place in its water surface, was a dangerous utility to be so maintained at such place where such cattle were received and held for shipment, then, through loss resulting by reason thereof, a jury might find a breach of this duty of the carrier. Upon this record we are of the opinion that sufficient facts were presented to make this breach of duty a question of fact for the jury, and that the verdict of the jury determining the negligence of the carrier in that regard should not be disturbed. See L. R. A. 1918C, 540; Heckman y. Evenson, 7 N. D. 173, 182, 73 NX. W. 427.
The carrier contends that the record discloses contributory negligence on the part of the plaintiffs; that the cattle were simply permitted to wander wild as they willed. In this connection a close question is presented, as a matter of law. The evidence is far from satisfactory in explaining how the cattle happened to get in the reservoir, whether during the presence of the herder or his temporary absence. There is evidence, however, that the plaintiffs did not know about these open and unguarded openings between the “spoil banks” in the north end; that they knew nothing about the open place in the water where the cattle were drowned. The plaintifés were directed and permitted to hold, feed, and water their cattle near these openings. The openings, unguarded and not protected, were dangerous for cattle by reason of the open water
