The several assignments of error in this case all resolve themselves into the two questions whether the defendant railway company was entitled to a peremptory instruction in its favor, or, in case of a refusal of such instruction, whether it was entitled to submit to the jury the question of the contributory negligence of the plaintiff in the mere fact of riding in the stock car.
In this connection defendant relies upon the ninth clause of the contract under which plaintiff was traveling and transporting his stock, which 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.' This clause was undoubtedly intended to provide a safe place for drovers in attendance upon their stock, although in the case of emigrants accompanying their outfits it was a common custom to permit them to ride in the car with their outfits. But, assuming that the plaintiff was bound by this stipulation, it was manifestly obligatory upon him only while the car was in motion, the design evidently being that drovers should be permitted to visit their stock cars, and see to their cattle while the train was at rest. Indeed, the contract specially provided that the plaintiff should 'assume all risk and expense of feeding, watering, bedding, and otherwise caring for the live stock provided for by this contract, while in yards, pens, or elsewhere.' The stipulation was doubtless primarily intended to permit drovers to visit their stock cars while the train was stopping at its regular stations, but, as there is no such limitation in the contract, we think the plaintiff was not guilty of contributory negligence in attending to his cattle whenever the train was not in motion, whatever may have been the cause of its stoppage, and whether the same occurred at a station or not. The company might doubtless have restricted the right of its drovers to visit their stock while the train was stopping at its regular stations, but it did not choose to do so; and there evidently was as much necessity in the present case for the plaintiff to care for his stock, and to protect it against injury, as there would have been if the train had been stopping at such a station.
If the plaintiff, while riding in a caboose, might, within the terms of the contract, have been visiting his cattle at the time the accident occurred, then the fact that he was actually riding in the same car with them while the car was in motion becomes immaterial, since the propriety of his action in being in the stock car must be gauged by the fact whether the train was in motion or not. Had the accident occurred while the plaintiff should have been riding in a caboose,-that is, while the train was in motion,-it would have been strong, if not conclusive, evidence of contributory negligence on his part.
What, then, is meant by the train being 'in motion'? The jar or sudden jolt which occasioned the injury doubtless presupposes a momentary motion of the car; but that is an extremely limited sense of the word, and one inconsistent with the obvious purpose of the license, since, while stopping at a regular station, freight trains are frequently subject to be moved short distances in od er to drop off or take on cars, to be switched on side tracks in order to accommodate passenger trains, or to take on fuel or water. If cars were held to be in motion while making these trifling changes, the privilege of entering a stock car while the train was at rest would be of no practical value. The more reasonable interpretation is that by the word 'motion,' as here used, is intended that continuous movement of the cars towards their destination which is commonly understood when we speak of moving trains or trains in motion. Whether the train was really in motion was a question which was submitted to the jury, and we have no criticism to make of the instruction of the court in that particular: 'That 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 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 to 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.'