171 N.W. 86 | S.D. | 1919
On December 23, 1916, plaintiff, as a caretaker of two carloads of, hogs then being shipped from- Hettinger, N. D., to Sioux City, Iowa, was riding upon a drover’s pass on one of defendant’s trains near Thunderhawk, S. D., when the caboose in which plaintiff was riding became derailed by reason of the brakeman having thrown a switch too soon while said train was passing from1 the main track to and upon, a side track. The derailment of said -caboose caused plaintiff to be thrown and bumped against the sides .of the car and against a table, thereby injuring, bruising, and' spraining the hip, spine, and head of plaintiff. Thereafter, about September, 1917, plaintiff instituted this action to recover damages, alleging negligence in the throwing of said switch and the derailment of said caboose. Defendant answered, and, among other things, alleged that plaintiff at the time of said injury was traveling upon and under the terms of a certain contract,in writing entered into between himself and defendant company, and which - said contract provided that the company should in no event be liable to the owner or person in charge of said stock for any injury to his person happening upon the trains of the company in any amount exceeding $500, and further provided that no claim for loss or damage to said live stock, nor for injury to the person in charge thereof should be valid unless presented to the company in writing within four months after the same should have occurred. There was verdict and judgment in favor of plaintiff, from which defendant appeals. The contract, or drover’s pass, received in evidence contained the provisions alleged in the answer.
The judgment and order appealed from are reversed, and the •cause remanded for new trial.