Heumphreus v. Fremont, E. & M. V. R. Co.

Citations

• 8 S.D. 103
• 65 N.W. 466
• 1895 S.D. LEXIS 24

Syllabus

<p>1. In the absence of knowledge brought home to the defendant, or of anything tending to show that contracts under which certain witnesses had, in isolated cases, shipped live stock over portions of defendant’s railway, provided that “it is agreed and understood that such owner and shipper shall feed, water, and take care of such stock at his own expense and risk,” and “persons in charge of live stock, who are passed on trains with it, are so passed to take care of the stock, and must ride in the caboose attached to the train,” the mere fact that they had ridden in the car with their stock is no evidence of a waiver of such stipulation, when freely entered into and acted upon by the shipper.</p> <p>2. Where, in the absence of gross negligence on the part of the company, a shipper of immigrant movables, including a span of horses, rides in the car with his property, over the objection of the conductor in charge of the wain, and in violation of a contract of shipment, in which he expressly agreed to ride in the caboose attached to the train, and by reason of such fact alone sustains a fatal injury, he is guilty of contributory negligence sufficient to defeat a recovery for such injury.</p> <p>(Syllabus by the Court.</p>