(after stating the facts). It is contended by counsel for appellant that the court erred in refusing to take the case from the jury. We do not think so, but are of the opinion that under the facts and circumstances of this case it was proper to submit to the jury the question of appellant’s negligence and appellee’s contributory negligence. The train upon which appellee was injured was a local freight train, and was required to carry both freight and passengers. Kirby’s .Dig., § 6705.
Appellee adduced testimony tending to show that where a person shipped a car containing live stock over appellant’s road it was the custom for appellant to permit a care-taker in charge of the live stock to ride free, and this much is conceded by appellant. Therefore, appellee was a passenger, notwithstanding he rode free. Little Rock & Fort Smith Ry. Co. v. Miles, 40 Ark. 298.
Appellee says that he was injured by a brace rod in the box car falling on him while he was riding in the car in charge of the stock. The rod fell because the tap which held it in position had come off. This was an injury caused by the running of a train, and made a prima facie case of negligence against the railway company. St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 636.
At the same time it was the duty of appellee to use reasonable care in protecting himself, and we consider the question of his contributory negligence the most serious one in the case. It is true that, according to the testimony of appellant, it was against its rules and regulations for a care-taker to ride in the car with the live stock, and the conductor says that he had no knowledge that appellee was riding there until after the injury was received; that he told him to ride in the caboose and supposed he was riding there. On the other hand, the jury might well have inferred from the testimony of appellee that the conductor saw him riding in the car with the live stock, and made no objections thereto; in other words, that appellee rode there with the knowledge and acquiescence of the conductor. Additional testimony was adduced by appellee tending to show that it was the general custom of persons in charge of live stock shipped upon one of appellant’s trains to ride in the car with the live stock in order to take care of it. Appellee also says that when he took his place in the car he looked around in it, and it appeared to be a solid and substantial car. Looking at the matter from appellee’s standpoint, we think that he was justified in believing that the conductor’s action in permitting him to ride in the car with the live stock was equivalent to the act of assigning him to that place. If the place was one of hidden peril, since he was a passenger and could not be reasonably expected to know of such danger, the duty devolved upon the conductor to warn him that he was riding at a place on the train which was contrary to the rules of the company, and which would subject him to unusual risks. Lake Shore & Michigan S. W. Ry. Co. v. Teeters, (Ind.) 77 N. E. 599, 5 L. R. A. (N. S.) 425; New Orleans & N. E. R. Co. v. Thomas, 60 Fed. 379, 9 C. C. A. 29.
Hence we do not think that, under all of the facts and circumstances in this case, the court erred in refusing to declare as a matter of law that appellee was guilty of contributory negligence. It must be admitted that there is some conflict in the authorities upon this point, but after a consideration of the question we believe that the conclusion we have reached is in accord with the better reasoning and with the trend of our authorities on the subject. Little Rock & Fort Smith Ry. Co. v. Miles, supra; St. Louis & S. F. Rd. Co. v. Kitchen, 98 Ark. 507.
It is next contended by counsel for appellant that the court erred in giving the following instruction to the jury:
“2. You are instructed that the duty of a conductor of a local train carrying passengers is to look after the safety and protection of all passengers on his train for the purpose of being conveyed from one point to another on the line of railroad over which his jurisdiction extends, and to assign them seats; and if he finds or sees a passenger in an exposed position, it is his duty to warn him of the danger to which he is exposed; and if you find in this case that the conductor of the local freight train on which plaintiff was injured saw plaintiff in the box car, and knew that he was travelling in said car, regardless of the fact whether said train was in motion or still, and failed to warn him of his danger, or permitted plaintiff to ride in said car, or acquiesced in his doing so, and plaintiff was injured thereby, your verdict will be for the plaintiff.”
We agree with counsel in this contention. The instruction in effect excludes from the jury the question of appellee's contributory negligence, and makes the company liable in damages for the injuries if the conductor acquiesced in his riding in the car with the live stock and failed to warn him of his danger. While the railroad company owed him the duty tó employ reasonable means and to exercise ordinary care to avoid injuring him, it was nevertheless his duty to use reasonable care in protecting himself; and, if the position he took in the train was one of such obvious danger that a person of ordinary prudence w;ould not ride there, appellee assumed the risk of doing, so, and can not recover against appellant merely because the conductor failed to warn him of his danger. As we have already seen, the question of appellee’s contributory negligence was one for the jury, and because the instruction under consideration practically excludes that question from the jury it was prejudicial to the rights of appellant.
. Other errors are pressed upon us for the reversal of the judgment, but we think the principles of law already announced practically cover the other assignments of error, and will be a sufficient guide for a retrial of the case.
For the error in giving instruction numbered 2, as indicated in the opinion, the judgment will be reversed and the cause remanded for a new trial.