Chicago, R. I. & P. Ry. Co. v. Steinberger

KANE, J. This was an action for damages for personal injuries, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Upon trial 'to a jury there was a verdict for the plaintiff, to reverse which this proceeding in error was commenced. The petition alleged, in substance, that at the time of his injury the plaintiff was in Oklahoma City, in charge of -a car of live stock b'eing shipped by him over defendant’s line of railway; that while said ear was in the yards of said company at said point waiting further 'transportation to its destination, the same was moved from its original location to another1 place in said yards; that on this account the plaintiff was required to pass across the tracks of the defendant in order to get to his -said car of stock fo>r the purpose of feeding and caring for the same, as under his contract of carriage with the *58 company lie was required lo. do; that lie was directed by the agents and servants of said defendant in charge of said yards as to the location of his said car of stock, and was given directions by them as to how to reach said car of stock, being directed by them to cross said tracks of the defendant; that while reluming from said car to the yard office after caring for said stock, one of the engines of the defendant railway ran against and struck said plaintiff, and hurled him to the ground and injured him; that the agents .and servants in charge of said engine ran llie same against said plaintiff without giving any warning of its approach, either by ringing the hell or blowing the whistle, or by any other sign, and tha't said train was going .at a rate of speed exceeding the, speed of six miles an hour, and was running at a speed in excess of the limit provided; by the ordinances for the running of trains and engine.? through said city. It is conceded that there is evidence reasonably tending to support the verdict of the jury, the only assignments of error relied upon for reversal being directed against the action of the trial court in refusing to give defendant's ' requested instructions, No. 5 and S, and hi giving certain other instructions over the objection of the defendant. In their brief counsel for plaintiff in error nave resolved their various assignments of error into one proposition, which they state as follows: “That if the plaintiff went into, the yards looking for his car, after he had been instructed to remain in the yard office until notified by the yardmaster, he was, while in the yards, a trespasser, and the defendant owed him no. flutv except not to wantonly or willfully injure him.” It is true that there w.as some evidence tending do show that after the car had been sot to the chutes and the cattle fed and watered, 'the plaintiff was advised by the yardmaster that the car would he taken out about Í) o’clock that night, and that in the meantime the plaintiff must stay in the office of the yards until he was notified the ear was ready to move; that the plaintiff, after remaining in the office until after the lime he was told Ills car would leave, became uneasy for fear he would be left, and went down into the yards looking for his car, in disregard of the directions of the yardmaster. We are unable to, agree with counsel that this, if true, would constitute the plaintiff a trespasser. The general rule is that the owner and shipper of live stock accompanying the shipment while in transit for the purpose of feeding 'ind caring for same under contract with the carrier has the implied consent of the company to cross over the track of its yards for the purpose of looking after his property, while the car is delayed in the yards of the company, awaiting further transportation to its destination. In such case the company owes to the plaintiff the duty of exercising reasonable care for bis safety. 23 Am. & E. Enc. (2d Ed.) 789; Elgin, etc., Ry. Co. v. Thomas, Adm’x, 115 Ill. App. 508; Railway Co. v. Cole, 40 Okla. 1, 149 Pac. 872. The mere fact 'that, the yardmaster directed the plaintiff to remain at the yards office until fie was notified that his car was ready to go does not change the rule. There is nothing in the evidence 'tending to show that the plaintiff was required to remain at the yards office by any well-known established rule of the company, or that the yardmaster was authorized by such rule 'to require the plaintiff to do so. In these circumstances, the plaintiff was entitled to such reasonable freedom of action in the performance of his contract with the carrier as the circumstances required, and whether he was negligently exceeding this reasonable freedom of action or not, at the time he was injured, was a question for the jury. Finding no reversible error in the record, the judgment pf (he court below must he affirmed.