This was an action originally instituted by Alexander Reeder against the Texas & Pacific Railway Company in the district court of Marion county, Tex., to recover for personal injuries sustained by Reeder. The action was afterwards removed upon petition of the defendant to the United States circuit court for the Eastern district of Texas. The facts of the case were substantially as follows:
Reeder shipped from Scottsville, Kan., to Houston, Tex., a car loaded with an emigrant outfit, consisting of 10 head of live stock and of household goods, and accompanied the same upon a drover's pass. It was provided in the contract, which he entered into with the railway company, that he should 'assume all risk and expense of feeding, watering, bedding, and otherwise caring for the live stock' while on the way, and, to better care for the stock, he rode in the car with them. In the ninth paragraph of the contract it was further provided 'that the person or persons in charge of live stock covered by this contract shall remain in the caboose car attached to the train while the same is in motion, and that whenever such person or persons shall leave the caboose, or pass over or along the cars r track, they shall do so at their own risk of personal injury from every cause whatever.'
The evidence shows that it was the custom on the road of the defendant company for stockmen to ride in the caboose, but that in the case of an 'emigrant outfit,' like the one in question, it was not unusual for the person in charge to ride in the car with the live stock. Reeder rode with the live stock during the whole trip, and although his car was next to the caboose, and he was invited by the conductor and trainmen to ride in the caboose, he declined, for the reason that it would be inconvenient for him to get in and out of the car, to look after his stock.
Reeder, whose age was about 70, testified that he had traveled about 500 miles over connecting lines before reaching the line of the defendant company, and in that distance neither his stock nor himself had sustained any injury. He further testified that, during his whole trip on the line of the defendant, his stock was roughly handled by the sudden stopping and starting of the engine, and had been knocked down at least eight times, and that his complaints to the trainmen that the jerks and jolts were killing his stock did no good. He also testified that at or about the place along the line of the road where he received his injury, called Longview, the train was stalled on a steep grade, and the engineer, in trying to get headway, would back the train a short distance, and then start with a sudden jerk as he took up the slack of the train; that one of the jerks threw down three cows and two horses, whose halters had been snapped by the jerk; that the engineer uncoupled the train, taking part up the grade, leaving his car; that, after the car stopped, he got the stock up, and was on his way back to his seat when the engine came back against the train with such a sudden jar that he was thrown off his feet, and, to save himself, he grabbed an iron support. It seems that the sudden jar or jerk pulled his right arm out of joint at the shoulder, which subsequently was followed by a partial paralysis of the shoulder muscles.
The engineer and others of the train crew testified that the train was not uncoupled at the place mentioned by Reeder, but was uncoupled at another place called Marshall, where there was a very steep grade. The witnesses for the defendant also testified that the trip was no rougher than usual, and one of the brakemen said on the stand that he was riding in the caboose at the time of the jerk which caused the injury, and that he did not suffer from it in any way.
After all the evidence was in, the defendant requested the court to charge the jury to return a verdict for the defendant. This the court refused to do, whereupon the defendant requested the court to charge the jury to find for the defendant in case it should find from the evidence that the plaintiff would not have been injured if he had been in the caboose instead of the stock car; that he was invited to ride in the caboose; that the latter was a safer place than the stock car; and that the plaintiff knew it. The court refused to grant any of the instructions requested by the defendant, and charged the jury as follows:
'If you believe from the evidence that the plaintiff, Alexander Reeder, was riding in the stock car in which his horses and cattle and goods were being transported over the defendant's road, and that, while the train was stationary, his cattle being down, and needed his attention, he at the time, in a prudent and careful manner, attempted or did give the horses and cattle the attention or assistance which they needed, and that the plaintiff was injured at that time, by a sudden and unusual hard jerk or jolt or bumping of the cars in which he was riding, through and by the negligence of the defendant company or its operatives, you will find for the plaintiff, and assess actual damages as hereinafter instructed.
'If, however, you believe from the evidence that at the time the plaintiff was hurt, that the train upon which he was riding was in motion, at the time he was giving the horses and cattle the assistance which they needed, the plaintiff would not be entitled to recover, and you will find for the defendant.'
The jury returned a verdict for the plaintiff in the sum of $1,500, upon which judgment was entered. The case was then taken to the court of appeals for the Fifth circuit (41 U.S. App. 775, 22 C. C. A. 314, and 76 Fed. 550), where the judgment below was affirmed, and the case is now before this court on writ of error.
John F. Dillon, W. S. Pierce, and D. D. Duncan, for plaintiff in error.
Presley K. Kewing, for defendant in error.
Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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